How times have changed. A little over a year ago, the most anti-Second Amendment President ever and his executive branch’s gun control agenda “had gun owners under siege on all fronts.” The tectonic shift under the new Trump administration has left anti-gun politicians and activists flailing.
Last week, the attorneys general of Delaware, New York and New Jersey applied to intervene in a case to defend a federal law because the federal government itself refused to do so, having conceded the statute “evinces a constitutionally impermissible purpose and does not accord with the Nation’s history and tradition of firearm regulation.”
The law at issue is 18 U.S.C. 1715, which prohibits the U.S. Postal Service (USPS) from mailing certain firearms. Subject to the listed exceptions, “[p]istols, revolvers, and other firearms capable of being concealed on the person are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.” The law applies only to the USPS, not private carriers, and a violation is punishable by a fine, imprisonment of up to two years, or both.
The law and related regulations are being challenged in a federal court case, Shreve v. USPS. The complaint alleges that the Prohibition-era statute (“the nation’s first federal gun control law”) violates the Second Amendment under the test in N.Y. State Rifle & Pistol Ass’n v. Bruen and is unconstitutional: “the U.S. Postal Service traces its lineage to 1775, and it has existed through the Founding era and beyond. But at no point did the Founders ever criminalize the mailing of handguns as the challenged statute does now.”
The U.S. Department of Justice (DOJ) concurs. A 15-page legal opinion from the DOJ’s Office of Legal Counsel in January notes that handguns come within the core of the “arms” protected by the Second Amendment. The law “ultimately aims to suppress traffic in constitutionally protected articles thus rendering the law per se unconstitutional as to those articles, and we are aware of no historical analogues” that would show this “unprecedented restriction is consistent with Nation’s historical tradition of firearm regulation.” As “long as Congress chooses to run a parcel service, the Second Amendment precludes it from refusing to ship constitutionally protected firearms to and from law-abiding citizens, even if they are not licensed manufacturers or dealers.” Consistent with the Executive’s duties under the Constitution, the DOJ “should cease prosecutions under the statute with respect to protected firearms” and proceed with the necessary modification of USPS regulations.
Astonishingly, after the federal government’s reasoned and unequivocal refusal to defend this law, the chief law enforcement officers of the three states filed a motion seeking to intervene, as they bizarrely phrase it, “to provide the Second Amendment defense that no other party currently will.” They also seek an order of summary judgment dismissing the lawsuit and a ruling in favor of the named defendants, the USPS and federal DOJ.
Their press releases explaining these maneuverings reach for the standard well-worn gun control buzzwords, “illegal guns,” “loophole” and “commonsense gun safety measure.” Letitia James, the NY Attorney General, also claims that if the law is not upheld, it will raise costs due to state police snooping through the mail: “state law enforcement would have to spend significant resources creating entirely new investigative and tracking systems to address the unregulated mailing of concealable firearms, including ghost guns, through USPS.”
The press release from James’ counterpart in Delaware is more candid, pointing to the federal administration no longer serving the same agenda. AG Jennings fumes that “[i]f you needed any more confirmation that this Administration is bought and paid for by the gun lobby, look no further. There is no good reason – none – to do away with a nearly century-old common-sense gun safety measure like this one. If the White House isn’t going to step up to keep this law in place, then we will.”
It remains to be seen whether the court will grant the motions to intervene and summary judgment. Doing so may represent an empty victory, now that the federal government has announced its position on the validity and enforceability of the law.
The government’s refusal to defend an indefensible law is good news for America’s gun owners, and it is to be hoped this resolve to protect constitutional rights extends to future decision-making.
As for the anti-gun state officials, it says a lot that they are not content merely to enforce their own unconstitutional gun control laws but will spend their constituents’ hard-earned dollars to try to resurrect other such infringements from the dead.
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