Berzon then turned to the plaintiffs’ more substantial argument: whether the Second Amendment confers a right to sell firearms. She began by quoting
D.C. v. Heller, the 2008 decision establishing an individual right to bear arms, which stated: “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms,” which are “presumptively lawful regulatory measures.” That passage alone, Berzon writes, strongly suggests that retailers cannot “assert an independent, freestanding right to sell firearms under the Second Amendment.”
But to err on the safe side, Berzon conducted “a full textual and historical review.” To start, she analyzed the 1689 English Bill of Rights, the precursor to our Second Amendment, as well as William Blackstone’s influential commentaries on English law. These documents all frame the right to bear arms as one held by
individuals, with no attendant right to engage in gun commerce. So did colonial laws in America—which, like the Second Amendment itself, were designed to preserve state militias, not to safeguard a freewheeling arms trade. Moreover, colonial governments routinely regulated the commercial sale of firearms. This history leads to the conclusion that, at the time of its ratification, the Second Amendment was not understood to create “a commercial entitlement to sell guns if the right of the people to obtain and bear arms was not compromised.”
To counter the weaknesses in their historical argument, the plaintiffs draw an analogy to the First Amendment. The freedom of speech, they note, protects the rights of bookshops; shouldn’t the right to bear arms similarly protect the rights of gun sellers? Not at all, Berzon wrote, for two reasons. First, the First Amendment is abstract, declaring that the government “shall make no law … abridging the freedom of speech.” The Second Amendment, in contrast, specifically protects “the right of
the people to keep and bear arms.” (Emphasis mine.) A law that restricts the commercial sale of a particular book plainly abridges “the freedom of speech”; a law that limits the number of gun shops in a county does not infringe upon the people’s right to bear arms.
Second, the analogy fails because booksellers hold an
independent free speech right to sell whatever expression they prefer, separate from the rights of their customers. “Selling, publishing, and distributing books and other written materials,” Berzon writes, is “itself expressive activity.” Booksellers “consequently have freestanding rights under the First Amendment to communicate with others through such protected activity.” Selling a gun, by comparison, “is not part or parcel of” the right of the people to “keep and bear arms.”
Here, Berzon makes a compelling analogy to abortion clinics that sue to block anti-abortion laws. These clinics can file suit because such laws burden
their patients’ rights, not their own. “Never has it been suggested,” Berzon wrote, “that if there were no burden on a woman’s right to obtain an abortion, medical providers could nonetheless assert an independent right to provide the service for pay.”
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Originally Posted by spudea
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