New Court Case Challenges Unconstitutional FFL Requirement to Sell Guns (Zerbor/Shutterstock)
April 07, 2023
By Mark Chesnut
A court case out of Pennsylvania is calling into question whether the law requiring those in the business of selling firearms to have a federal firearms license (FFL) is constitutional, considering the new criteria set down by the U.S. Supreme Court in last year’s New York State Rifle & Pistol Association v. Bruen case.
And despite the fact that being in the business of selling firearms has required an FFL for as long as most of us can remember, any court faithfully applying the two-prong standard as prescribed in Bruen just might not see this one the government’s way.
The case revolves around Amish dairy farmer Reuben King from Lancaster, Pennsylvania, who has been charged with dealing in firearms without a license. According to court papers, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) purchased five firearms from King at his farm between October 2019 and March 2020. After being sent a letter informing him that he couldn’t be selling firearms without a license, King sold four firearms to undercover state troopers in late 2021 and 2022. ATF later arrested King and confiscated 615 firearms.
Rather than arguing that King didn’t sell the firearms, King’s attorney, Joshua Prince, is instead arguing that King doesn’t need an FFL to sell guns because the FFL requirement itself is unconstitutional.
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A quick look at the criteria set down by the U.S. Supreme Court in the Bruen, which prescribed a standard of review that lower courts must apply when resolving Second Amendment cases, shows how interesting this argument is. Under Bruen, for a gun law to be constitutional it’s not good enough for the government to simply show the law is “in the public interest,” as was formerly common.
Now, the court must determine if “the Second Amendment’s plain text covers [the] individual’s conduct” the government hopes to restrict. If it does, “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” If the government fails to carry this burden, then the challenged law cannot stand.
The question here is whether the law requiring an FFL for being in the business of selling firearms meets those criteria. And King’s attorney says it does not.
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“You will not find any laws in existence around the time of the founding that required an individual to obtain a license to be able to sell firearms,” Prince told the Epoch Times . “It wasn’t until 1938 (147 years later) that the first Federal Firearms Act, requiring sellers of firearms to become licensed, was enacted.”
To King, that fact alone proves the unconstitutionality of the FFL requirement. Now, it’s time for the government to prove otherwise.
“It is the government that must demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation,” Prince said. “The government has to establish that any current day law is consistent with the nation’s historical tradition of firearm regulation.”
Since the Supreme Court announced the Bruen decision last summer I’ve been saying that hardly any current laws pertaining to firearms meet the new standards for determining constitutionality. This case involving requiring an FFL for selling firearms is a great example of that. It’ll be interesting to see if courts faithfully follow the Bruen court standard in not only this case but dozens of others being litigated on Second Amendment grounds.
About the Author Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for over 20 years.
If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com .
