The Second Amendment Right to Acquire Arms

August 26th, 2014

Despite the fact that the Supreme Court has held that we hve a Second Amendment right to *possess* a firearm, the DOJ and most state governments have continued to take the position that there is no right to *acquire* arms. Now, you may ask yourself, how is it possible to possess a gun, when you don’t already have one. And, as transactions go, acquiring arms entails the right of one party to sell/give the gun, and the other party to buy/receive the gun. It takes two to tango. I discuss this at length in my article on 3D-printed guns.

Through unique circumstances, both Dick Heller and Otis McDonald were attempting to register guns they already owned, but were illegal to keep functional under the law. The Supreme Court, in neither case, had the occasion weigh in squarely on whether or not the Second Amendment protects the right to acquire arms. Justice Scalia in Heller did say that Second Amendment should not “cast doubt” on “laws imposing conditions and qualifications on the commercial sale of arms.” You could (as the government has) read that to say that means acquiring arms is outside the scope of the Second Amendment. I read it differently–if the “sale of arms” was not a constitutional right, it could be prohibited altogether under the police power, and not just limited by “conditions and qualifications.” The need to qualify a right dictates the existence of the right in the first place.

In Ezell v. City of Chicago, the 7th Circuit seems to have read this language in a similar fashion. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” The key word is “acquire.”

Recently, a federal court in California reached a similar conclusion. California imposes a 10-day waiting period to buy a gun. However, this same waiting period applies even if a person has already registered guns in the past, or even those who have a concealed carry permit. A federal court struck down this law, as imposing a burden on the Second Amendment right.

Pivotal in the analysis, is the court recognized that the Second Amendment applies not just to guns you already own, but the process of obtaining new guns.

When the 10-day waiting period laws apply, they prohibit every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. One cannot exercise the 24 right to keep and bear arms without actually possessing a firearm. Cf. Andrews v. State, 50 Tenn. 165, 178 (1871) (“The right to keep and bear arms necessarily involves the right to purchase them . . . .”). Also, in some cases, due to additional costs and disruptions to schedules, the 10-day waiting period may cause individuals to forego the opportunity to purchase a firearm, and thereby forego the exercise of their Second Amendment right to keep and bear arms. Therefore, the 10-day waiting period burdens the Second Amendment right to keep and bear arms. 

The court also found that the “no doubts” passage from Heller only finds that certain “qualifications” are constitution, and other “conditions” are not. The 10 day waiting period is not lawful.

In comparison to Nordyke and a 10 plain reading of Heller‟s language, it is not clear to the Court that a 10-day waiting period would qualify as a commercial regulation. Defendant cites no comparable commercial laws that apply to other goods and that require an individual to wait around 10-days before completing a purchase. The Court is not satisfied that Defendant has shown that the 10-day waiting period is one of Heller‟s envisioned conditions and qualifications of a commercial sale.

I think this decision gets it right. The right to possess arms entails a right to acquire arms, which protects both the buyer and the seller. This right can be regulated, but it must be reasonable. Forcing someone who has already gone through background checks, and already has other licensed guns, to wait 10 days, is unreasonable.