united-states constitutional-law second-amendment
The US Constitution endorses a right to &quot;keep and bear&quot; arms. What about buying, selling, and manufacturing guns?
<p>The text of the 2nd Amendment of the US Constitution reads:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>

<p>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?</p>

<p><a href="https://harvardlawreview.org/2014/04/does-the-second-amendment-protect-firearms-commerce/" rel="nofollow noreferrer">This article</a> surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In <a href="https://casetext.com/case/us-v-chafin" rel="nofollow noreferrer">US v. Chafin</a>  423 F. App’x 342, the court decided that</p>

<blockquote>
  <p>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</p>
</blockquote>

<p>drawing an analogy to <a href="https://www.law.cornell.edu/supremecourt/text/413/123" rel="nofollow noreferrer">US v. 12 200-Foot Reels of Super 8mm. Film</a>, 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 <a href="https://casetext.com/case/mont-shooting-sports-assn-v-holder" rel="nofollow noreferrer">Montana Shooting Sports Association v. Holder</a>, 727 F.3d 975:</p>

<blockquote>
  <p>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</p>
</blockquote>

<p>Contrarily, in the Northern Illinois district in <a href="http://www.rouleau-law.com/files/196789422-gov-uscourts-ilnd-245065-238-0.pdf" rel="nofollow noreferrer">Illinois Association of Firearms Retailers v. City of Chicago</a>, the court finds in response to a ban on the sale of firearms in the city that. </p>

<blockquote>
  <p>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</p>
</blockquote>

<p>The same court in <a href="https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2011cv03871/256543/241/0.pdf?ts=1517249654" rel="nofollow noreferrer">Kole v. Village of Norridge</a> determined that </p>

<blockquote>
  <p>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</p>
</blockquote>

<p>both decisions relying on <a href="https://caselaw.findlaw.com/us-7th-circuit/1766304.html" rel="nofollow noreferrer">Ezell v. City of Chicago</a>, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges).</p>

<p>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".</p>
