The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Big Business as Gun Control
Partly from coercion and partly by choice, many banks and social media businesses impose severe gun controls
On July 6, 1775, the great Pennsylvania lawyer John Dickinson coauthored the Continental Congress' Declaration of Causes and Necessity of Taking Up Arms. Among the grievances in the Declaration were the British government's gun control program, namely having "murdered" people in attempting to confiscate arms and gunpowder at Lexington and Concord, and the disarmament of the people of Boston. Known as the "Penman of the Revolution," Dickinson is the namesake of Penn State Dickinson Law school. Fittingly for the 250th anniversary of John Dickinson's immortal declaration, the Dickinson Law Review has published a symposium issue on arms rights and arms controls.
My article, coauthored with George Mocsary and Bhav Ninder Singh, addresses a form of constriction on the right to arms that was unknown to John Dickinson: Big Business as Gun Control. Here's the abstract:
Gun control increasingly bypasses direct legislative enactments by co-opting the commercial marketplace. Financial institutions and insurers often face regulatory pressures, frequently articulated through vague notions of "reputational risk," to terminate or restrict services for lawful firearms businesses and advocacy groups. The debanking tactic, seen in initiatives such as Operation Choke Point, can deny essential financial products to firearm owners, merchants, and organizations, curtailing the practical exercise of constitutionally protected rights. Simultaneously, government agencies sometimes pursue warrantless data collection from bank records and merchant category codes, building profiles of lawful purchasers and eroding privacy and due-process norms.
Social media platforms compound these problems by removing or limiting firearms-related content under opaque or inconsistently applied standards. Although they occasionally frame their policies as safeguards against violence, enforcement often removes instruction, historical discussion, and other legitimate forms of speech. The censorship distorts public debate about firearms, stifling conversations on safety, training, and responsible ownership.
This Article describes the significant shift toward privatized gun control, in which government entities and large corporations converge to limit access to banking, insurance, and information platforms. The outcome is a new type of regulatory regime that can subvert constitutional checks, undermine lawful enterprise, and chill lawful speech. Curbing abuses requires a combination of targeted legislation, judicial oversight, and self-restraint by private institutions to ensure that neither lawful commerce nor individual liberty are sacrificed to hidden agendas.
Part I of the Article examines debanking and other financial blacklisting, and explains how the financial regulatory environment enables abuse. When a regulator illegally says "jump," many banks and insurance companies tend to believe that the only response that will save their business from being destroyed is to respond "Yes, sir!" A case in point is the Obama administration's Operation Choke Point, which was an effort to debank the entire firearms industry. While that particular program was thwarted by its exposition in congressional hearings, debanking continues to be a growing problem. Abuses have been particularly severe in New York State. There, the Governor, the head of the Department of Financial Services, and the Attorney General engaged in egregious misconduct to attempt to destroy the National Rifle Association (NRA) for political reasons.
Part II turns to forced disclosure of private banking information. Section A briefly surveys the widespread problem of administrative subpoenas, including for banking data relating to firearms purchases. Section B addresses legislation to create separate merchant category codes for firearms business.
Social media censorship of firearms-related content is the subject of Part III. Based on examination of the policies and practices of six leading social media businesses, the worst offenders are Meta and YouTube. While these companies have published detailed policies, the companies' censors act arbitrarily, capriciously, and contrary to the published policies.
In each of Parts I–III, a final section examines potential solutions for the problems described in the relevant part. There are multiple ways to deal with debanking and other financial blacklisting, but many suffer from the penchant of some financial regulators to act as a law unto themselves, regardless of their statutory or regulatory authority. Financial privacy is the easiest issue to address, using the model of several states that have already enacted legislation against turning credit card transactions into gun registries. As for social media, the problem may be unsolvable by legislation, lawsuits, or antitrust.
