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Revoke Walmart and Dick’s Federal Firearms License!

If you won’t treat everyone the same, turn in your FFL license!

We have this situation where Walmart and Dick’s raised the age of when they will sell a citizen a shotgun or a rifle — restricting a right guaranteed under the Constitution.

Certainly, no store can be forced to sell something they don’t want to sell; however,   the situation here is one where they received a federal license called the Federal Firearms License or FFL. As an FFL license holder, you have accepted the terms under which a citizen can purchase a weapon that you are selling.

In this instance, if you don’t want to sell rifles and shotguns to qualified individuals who are 18-21 years of age, that’s fine as long as you don’t sell rifles and shotguns to ANYONE.

If you don’t want to do that, turn in your license!

What determines what is illegal regarding firearm sales is described in 18 U.S. Code § 922 – Unlawful acts

The bit we’re interested in is in  § 922(b)(1):

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;

Is it “unlawful” to refuse to sell a rifle to an individual who is between 18 and 21 years old who is otherwise qualified to buy that rifle? Not according to this language.

Is it unconstitutional? Maybe. I suspect the argument would go something like:

  1. The individual has shown they are qualified to own a rifle.
  2. if you sell rifles, they have the same constitutional right to own one as the next person.
  3. You can not pick and choose to whom as an FFL you will sell that rifle assuming they meet all the criteria for a lawful sale.

Is it discriminatory? Well, we get into the entire issue we had with Masterpiece Cakeshop, protected classes, and public accommodation laws. As NWC wrote in his brilliantly written Man Suing Dick’s Sporting Goods For Denying Him the Right to Purchase a Rifle, Oregon specifically lists “age” as a protected class for the purpose of “full and equal accommodations, advantages, facilities and privileges of any place of public accommodation.”

In Colorado, “age” is not a protected class so, as you see, these things can vary by State.

Clearly, both Walmart and Dick’s are in violation of Oregon’s 2015 ORS 659A.403 Discrimination in place of public accommodation prohibited.

Are they in violation of their FFL? Maybe and that maybe would be based on failure to meet the requirement within § 922 to abide by State law and local ordinances.

(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
(2) any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance;

The language is a bit convoluted (well there’s a surprise!) and written in terms of what is unlawful to sell rather than unlawful to refuse to sell.

So where does that leave us?

  1. Any State or locality (if permitted by State law) can create a law or ordinance raising the age to purchase a firearm to 21.
  2. States with age accommodation laws will have to add an exception to exclude firearms.
  3. The courts could take up the broader constitutional question although they could simply defer by saying this is a State’s rights issue.
Mark Rosneck

Written by Mark Rosneck

"Vell, Mark's just zis guy, you know?"

As NWC has said -- "Doing the work not even illegal Mexicans would do."

What do you think?

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