The text of the 2nd Amendment of the US Constitution reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This is somewhat narrowly worded in the sense that it does not say anything about a right to manufacture, buy, sell, gift, or otherwise traffic arms. However, since the enumerated right to "keep and bear" (whatever that means) is not intended as a dead letter, some amount of legal gun manufacturing and transfer would seem to be a background assumption.

Does the current legal interpretation of the 2nd Amendment understand it as protecting arms manufacturing and trafficking? Where in the case law is such reasoning developed?

  • United States v Rock Island Armory
    – eggyal
    Aug 5, 2019 at 7:03

1 Answer 1


This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that

although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm

drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975:

Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation

Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that.

the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional

The same court in Kole v. Village of Norridge determined that

the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers

both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges).

The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights".

  • FWIW, I think that some of the cases portrayed as contradictory can, in fact, be reconciled with each other. Montana Shooting Sports, for example, seems to be pushing a right not to be regulated, which even Heller acknowledges that the 2nd Amendment does not create, while Illinois Association involves an absolute ban.
    – ohwilleke
    Aug 26, 2019 at 19:55

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