Walmart's Ammo Sales Decision Doesn't Violate the Second Amendment. But the Government Ordering Them To Stop Selling Ammo Would.
Defenders, and enemies, of gun access need to get used to their fight being more cultural than political.
Walmart's announcement on Monday that it will stop selling handgun ammunition and some varieties of rifle ammunition once it sells its existing stock of those products generated waves of incomprehension on both sides of the gun debate.
The National Rifle Association (NRA) tweeted that a private company's choice to stop carrying a product is a situation of "Walmart vs. the Second Amendment," as if one store's choice to not sell an item implicates the constitutional right to keep and bear arms (it certainly does not). Right-wing commentator Ben Shapiro, in other contexts not one to insist a private business must perform certain transactions, considers Walmart's choice a "dangerous precedent."
On the other side, Bloomberg reporter Sahil Kapur wonders if restrictions on ammunition access offer a secret loophole end-run around the Second Amendment: "2nd Amendment limits gun control options, but ammunition control? Could a very determined Congress or state legislature, say, ban ammo? Tax it at 10,000%? Regulate it into oblivion? Constitutionally speaking, where is the line drawn?"
The doctrine established in the 2008 Heller Supreme Court decision, while it stands, bars the government from completely preventing Americans from having commonly owned arms for self-defense in the home. It's fair to wonder if that might apply to ammo, but that approach is also a non-starter as demonstrated by the 9th Circuit of the U.S. Court of Appeals—not one of the more Second-Amendment friendly judicial bodies—in its 2014 ruling on Jackson v. City of San Francisco.
To quote from that decision:
The Second Amendment protects "arms," "weapons," and "firearms"; it does not explicitly protect ammunition. Nevertheless, without bullets, the right to bear arms would be meaningless. A regulation eliminating a person's ability to obtain or use ammunition could thereby make it impossible to use firearms for their core purpose. Cf. Heller….(holding that "the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional"). Thus "the right to possess firearms for protection implies a corresponding right" to obtain the bullets necessary to use them. Cf. Ezell…(holding that the right to possess firearms implied a corresponding right to have access to firing ranges in order to train to be proficient with such firearms). Indeed, Heller did not differentiate between regulations governing ammunition and regulations governing the firearms themselves…..Rather, the Court considered the burden certain gunpowder-storage laws imposed on the Second Amendment right, and determined that they did not burden "the right of self-defense as much as an absolute ban on handguns." This observation would make little sense if regulations on gunpowder and ammunition fell outside the historical scope of the Second Amendment.
….we conclude that prohibitions on the sale of ammunition do not fall outside "the historical understanding of the scope of the [Second Amendment] right."….Heller does not include ammunition regulations in the list of "presumptively lawful" regulations.
At least one judge or majority panel in any chain of appeals would likely conclude that laws that make it impossible or very difficult to obtain ammunition would indeed implicate the Second Amendment right as established in Heller.
Until Heller is overturned (if ever), Walmart's move and the public reaction are an indicator of how we will mostly fight over guns in the near future: in the marketplace of ideas and products, not necessarily via the law (although it would not be very shocking in the near future to see new federal laws regarding universal background checks and/or a repeat of a ban on rifles with certain features that make some call them "assault weapons," though that distinction is often effectively meaningless). I reported on this trend last year when 3D-printed gun provocateur Cody Wilson saw mediums of communication and monetary exchange shutting out companies like his:
the culture at large, not necessarily the state per se, is closing in on him and his interests. "This is really happening now. YouTube, Google, banks….The libertarian response is just that these are all private companies, so….? And that's true. But if you are no longer a person" [Wilson said] to such leading institutions in marketing, commerce, and communication, "then what [options are] there?"
I'd prefer to live in a world in which commerce was less freighted with ideology, but those engaging in commerce should generally have the power to choose what to sell and who to deal with. The result of those choices won't satisfy every customer or every political activist, but they are a core element of liberty in a free market.
Was Walmart foolish to make this decision? Or to announce at the same time that it supports considering another "assault weapon" ban and would prefer customers no longer open-carry in their stores? Will these positions alienate more of their customers than they will satisfy? Will these announcements win them new business from gun control supporters?
As they noted in their announcement of the new ammo restrictions, the company had already "made decisions to stop selling handguns or military-style rifles such as the AR-15, to raise the age limit to purchase a firearm or ammunition to 21, to require a 'green light' on a background check while federal law only requires the absence of a 'red light,' to videotape the point of sale for firearms…."
The mega-company will certainly lose customers for the specific sorts of ammo they will no longer sell, at least when it comes to buying that ammunition. How many Americans are willing to boycott such a useful store entirely over their emotions regarding access to guns and ammo is unclear. People for whom Walmart is the only nearby source of ammo might face a real hardship for their gun-using activities.
Just because Walmart is perhaps the most phenomenally successful and game-changing retail operation in human history doesn't mean every decision they make will prove financially smart. Perhaps the relevant decisionmakers are willing to lose a little money to ensure they have a smaller chance of a connection, via ammunition at least, to any future public shooting.
However, Walmart has not announced it will sell no ammunition moving forward. Given that any ammunition in any gun can be used to kill people, Walmart's move is more symbolic of a cultural and political stance than something sure to be effective in lessening gun violence. It has that in common with most proposed new gun laws or policies.
The very fact that it's more an ideological move than a practical one is likely why Ben Shapiro called the company's decision "dangerous": It makes people uncomfortable to see huge cultural and marketing forces turn hostile to things or constituencies they stand for. While many people pointed out to Shapiro that Walmart's choice does, in fact, reflect the free market in action, it's not necessarily crazy to get a little itchy about a world in which people limit market transactions over political or cultural differences, whether the people being turned away are gay wedding cake enthusiasts or straight white ammo-shooters.
At one time or another, everyone involved in these disputes, or just cheered them from the sidelines, has taken for granted the fact that international cosmopolitan markets—in which people exchange goods without concern for religion, creed, nationality, or color—have made the world an enormously richer and more peacefully interconnected and option-filled place.
Yes, such ideology-blind market cosmopolitanism allows people who you think are bad to make a living, or to obtain things you wish they couldn't obtain. This may be intolerable to you. But no matter how much you resent the existence of ammunition, it is obviously true that the vast, vast majority of such sales do not result in any harm to the innocent.
It is also true that making your political and cultural opponents feel as if the world is closing in around them in an effort to limit their peaceful cultural choices is not a good path to civic peace.