Riding on One Rail of Two Tracks

Even though there are very few judicial decisions relative to the manufacture of firearms and ammunition, you can get lost for hours in those pages.

For the sake of argument, let’s define this universe as three United States Supreme Court decisions, specifically District of Columbia, et al. vs. Heller, 554 U.S. 570 (2008), McDonald, et al. vs. City of Chicago, Illinois, 561 U.S. 3025 (2010), and United States vs. Miller, et al., 307 U.S. 174 (1939).  Collectively, these opinions span more than 400-pages.  Indeed, Justice Scalia’s majority opinion in Heller spans several hundred years of legal history.  These three cases are the subject of commentaries and legal panels, are cited by both sides in lawsuits, and probably most Americans are familiar with at least “Heller” as an important judicial decision.

But, when you think about these three decisions from a manufacturer’s perspective, you feel like you’re riding only one rail of the track.  Miller upheld a ban on short barrel shotguns less than 18” long.  Heller struck down a ban on handguns.  Both cases were decided on Second Amendment grounds.

So why weren’t these cases involving products decided through a commercial analysis?

The simple part of the answer is that these three lawsuits involved parties which were either a government entity or a private individual – not a manufacturer.

  • Back in 1938, Messrs Jack Miller and Frank Layton were charged with the interstate transport without a stamp of a “…double barrel, 12-guage Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230…”  The District Court judge found the law unconstitutional under the Second Amendment.
  • Mr. Dick Heller applied in Washington, D.C. for a registration certificate for a handgun to keep at his home, but was denied.  His lawsuit focused on civil liberties guarantees under the Second Amendment.
  • Mr. Otis McDonald and others wanted to maintain firearms in their homes in Chicago, but could not do so due to the citywide ban.  Likewise, their claims focused on their individual civil liberties under the Second Amendment.

Although manufacturers have been impacted by these three US Supreme Court cases, none of them involved manufacturers as parties.  The decisions did not reflect commerce or other manufacturing or commercial interests.

And so, it would appear that there is a substantial as yet undetermined question of federal constitutional law that could impact manufacturers of firearms and ammunition.  Does the federal government have the constitutional authority to inhibit the interstate commerce of manufacturers producing the only commercial product guaranteed to Americans as a civil liberty?

To learn more about the new federal cases pending in CO, CT, and NY that involve manufacturer co-plaintiffs, please visit the Orchid Advisors virtual roundtable library for our program that was webcast on Thursday, June 27.  Orchid Advisors roundtables are offered free of charge.

The following materials referenced in this blog are available on the Orchid Advisors on-line research library by clicking these hyperlinks:
District of Columbia, et al. vs. Heller (2008);
McDonald, et al. vs. City of Chicago, Illinois (2010); and,
United States vs. Miller, et al. (1939).

rev. 7/15/2013