If you’re running as an anti-gun Democrat in New York this cycle and you want to stand out, you can’t just rely on the same old things like calling for a ban on so-called assault weapons or adopting more “gun-free zones.” You’ve gotta think outside the box, and to his credit, New York Assembly candidate Scott Budow has come up with a gun control idea that I’ve never heard in almost 20 years of covering the issue.
Budow, an attorney running for a heavily Democratic assembly seat in Brooklyn, says it’s time that anti-gunners stop focusing so much on the possession of firearms and instead start trying to ban their sale.
In Heller, the Court found that a handgun ban in D.C. violated an individual right to keep and bear arms under the Second Amendment. Two years later, the court expanded this rule nationwide by striking down a similar handgun ban in Chicago. Last year in its Bruen decision, the court concluded that concealed carry permits for guns could not be premised on a proper need requirement. What’s the common thread? This court is extremely protective of an individual’s possession of firearms.
But the individual right to “keep and bear arms” is not the same as an alleged right to sell arms. Indeed, federal courts across the country have routinely found that there is no Second Amendment protection for selling arms, even after the Supreme Court issued its landmark decision in Heller. That is why people still go to prison for illegally selling guns — the Constitution does not protect that activity.
What can gun reform advocates do with that? We can pass laws to close gun stores in the 17 states where Democrats have unified control. As a candidate for the state Assembly in New York — one of those 17 states — I am proposing a law telling every corporate entity in the state to make a choice: either stop selling guns or stop doing business in our state.
Those entities that refuse to comply would be subject to dissolution or an injunction preventing further business activity in New York. This would essentially close stores that sell guns in our state, since virtually all such stores are corporate entities. That would not eliminate gun violence, but it would help to stem the tide by making it harder to get a gun.
Harder to legally get a gun. Criminals would still have multiple avenues available to them, but Budow’s big plan would make it almost impossible for someone to lawfully acquire a firearm.
Contrary to Budow’s claim that courts across the country have found there’s no right to acquire a firearm, we’ve seen plenty of cases where judges have concluded the opposite. When then-governor of Massachusetts Charlie Baker removed gun stores from the list of “essential” businesses in the early days of the COVID pandemic, a federal judge granted an injunction and ordering stores to once again open for business, declaring that “[w]e don’t surrender our constitutional rights” in a declared emergency.
Similarly, a three-judge panel on the Ninth Circuit ruled last year in favor of plaintiffs who challenged Ventura County, California’s forced closure of gun shops during the first months of the pandemic, declaring:
“[T]he right of the people to keep and bear Arms,” U.S. Const. amend. II, means nothing if the government can prohibit all persons from acquiring any firearm or ammunition. But that’s what happened in this case.
These blanket prohibitions on access and practice clearly burden conduct protected by the Second Amendment and fail under both strict and intermediate scrutiny.
The right to keep and bear arms is meaningless without an implicit right to acquire them. Even the cases that Budow cites in favor of his authoritarian plan acknowledge that right, however obliquely. Budow cites language in Heller, for instance, that says “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.” Conditions and qualifications indicates that while the government can regulate commercial sales, it cannot ban them altogether. Budow also cites the Texiera case that challenged Alameda County’s zoning restrictions that prevented new gun stores from opening, where the Ninth Circuit declared that there is no right to sell a firearm protected by the Second Amendment, but one of the dodges that the appellate court used in that case was the fact there were already gun shops in the country where gun owners could acquire a firearm.
That wouldn’t be the case under Budow’s authoritarian plan, as he himself admits. Every shop in the state that sells firearms would be forced to either give up that practice or face corporate dissolution, rendering the average citizen’s ability to acquire the arms she has a right to both keep and bear utterly moot. The prohibitionists are becoming much bolder with their schemes in the wake of the Bruen decision, and Budow’s anti-civil rights proposal fits right in with demands to order gun shops closed through executive orders. His proposal might require a vote by legislators, but it would still run roughshod over our constitutionally protected right to keep and bear arms.