An excerpt from the longish decision in Monday’s U.S. v. Clerfe, written by Third Circuit Judge David Porter, joined by Chief Judge Michael Chagares and Judge Jane Roth:
Derby Clerfe purchased handguns in the United States and smuggled them to the Republic of Haiti in violation of numerous federal laws. He was indicted for and later pleaded guilty to one count of conspiring to violate federal laws that prohibit exporting firearms without filing an export information ….
We agree with the government that “keep[ing] and bear[ing[] Arms” does not encompass sending them abroad in violation of arms-trafficking laws.
We begin with Heller, which explicated the meaning of the phrases “keep arms” and “bear arms.” Looking to founding-era dictionaries and treatises, the Supreme Court concluded that “the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons.'” … By comparison, Clerfe’s conduct—exporting arms abroad—involved dispossessing himself of firearms….
As a fallback, Clerfe argues that even if exporting arms abroad does not count as “keep[ing] Arms,” his conduct is covered by the plain text because the Second Amendment prohibits all “infringe[ments],” which he reads to mean anything that hinders the right. He suggests that “even the smallest burden” hinders the right. Clerfe relatedly points to pre-Bruen caselaw recognizing that the Second Amendment right, like other rights, “implicitly protect[s] those closely related acts necessary to [its] exercise.” We agree with those authorities. But Clerfe’s argument is tautological: His right to “keep Arms” was not “infringed” for the same reason that exporting arms abroad is not protected by the right to “keep Arms” in the first place….
Finally, Clerfe cites to this Court’s pre-Bruen caselaw stating that “[c]ommercial regulations on the sale of firearms do not fall outside the scope of the Second Amendment.” Clerfe stretches that language much too far. The explicit lesson of those cases is that it matters whether a commercial regulation impinges upon the “right to possess and carry weapons in case of confrontation.” After all, “[i]f there were somehow a categorical exception for these restrictions, it would follow that there would be no constitutional defect in prohibiting the commercial sale of firearms. Such a result would be untenable.” …
Put differently, a commercial regulation cannot end-run the “individual right to possess and carry weapons,” but if the regulation does nothing to “infringe[]” upon that right, the Second Amendment is not implicated. Because the laws that prohibit Clerfe from exporting handguns to Haiti do not limit his right to “keep and bear Arms,” the plain text of the Second Amendment does not protect the conduct at issue….
Even assuming the Second Amendment covers Clerfe’s conduct, the government has shown that the challenged laws prohibiting the export of weapons abroad are “consistent with the Nation’s historical tradition of firearm regulation.” Since the founding of the Republic to the present day, Congress has restricted the exportation of weapons abroad. In 1794, just three years after the Second Amendment was adopted, the Third Congress passed a law titled “An Act prohibiting for a limited time the Exportation of Arms and Ammunition, and encouraging the Importation of the same.” That statute made it unlawful “to export from the United States any cannon, muskets, pistols, bayonets, swords, cutlasses, musket balls, lead, bombs, grenados, gunpowder,” etc.
Likewise, the Ninth Congress “suspend[ed] the commercial intercourse between the United States, and certain parts of the island of St. Domingo”—modern-day Haiti. And the Tenth Congress for its part promulgated the Embargo Act of 1807 which prohibited the export of all goods, including firearms, from the United States. The Congresses that enacted these laws included John Adams, Oliver Ellsworth, Rufus King, Albert Gallatin, Robert Morris, James Monroe, Joseph Story, Jonathan Trumbull, James Madison, Henry Clay, John Quincy Adams, and others who knew a thing or two about the Constitution.
Clerfe resists these historical analogues, arguing that they, especially the 1794 law, addressed different societal problems and imposed different burdens. He claims that the 1794 law had nothing to do with the foreign-policy concerns that motivate modern-day arms export regulations. Though the 1794 law, titled “An Act prohibiting for a limited time the Exportation of Arms and Ammunition, and encouraging the Importation of the same” seems to have been enacted, in part, to increase the domestic stock of firearms, it strains credulity to think that foreign-policy considerations were not also relevant. But even spotting Clerfe that difference, other generally applicable founding-era export controls addressed the same sort of foreign-policy considerations….
Adam Hallowell and Laura Irwin represent the government.
