DOJ Rules Century-Old Statute Prohibiting Shipping Handguns Through the US Mail Unconstitutional

In a monumental development for gun owners, the Department of Justice has acknowledged that one of the oldest federal gun control laws on the books is unconstitutional. The DOJ Office of Legal Counsel issued a memorandum last week titled, “Constitutionality of 18 U.S.C. § 1715.” The statute at issue concerned the federal prohibition on sending handguns through the U.S. mail enacted in 1927.

Specifically, 18 U.S.C. § 1715 provides,

Pistols, 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. …

Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail according to the direction thereon, or at any place to which it is directed to be delivered by the person to whom it is addressed, any pistol, revolver, or firearm declared nonmailable by this section, shall be fined under this title or imprisoned not more than two years, or both.

As the 1927 U.S. Postal Service ban pre-dated the Gun Control Act of 1968, at the time the act served as a ban on mail-order handguns through the U.S. Post direct to consumers. Since the gun control act of 1968, customers purchasing firearms at retail are generally required to obtain all firearms through an FFL or gun dealer in their state.

Still, the USPS handgun prohibition continues to create massive and needless headaches for law-abiding gun owners.

Handgun owners can’t use the U.S. mail to ship their firearms to themselves, say during a move or for a hunting trip or competition. Astute gun owners will be aware of the potential perils of lawfully traveling through certain parts of the country with a legally-owned firearm, despite the federal protections provided by the Firearm Owners’ Protection Act – making mailing a firearm preferable in many instances. Moreover, handgun owners can’t use the USPS to ship their firearm directly to a manufacturer or gunsmith for modification or repair.

The Postal Service prohibition forced gun owners to use private companies for shipping handguns. However, in recent years the major private shipping companies have cracked down on firearm shipments from non-FFLs.

For instance, UPS states on its website,

Shipments containing Firearm Products are accepted for transportation only from shippers who are federally licensed and have an approved UPS agreement for the transportation of Firearm Products.

FedEx provides,

Shippers that do not hold an FFL are not eligible to obtain approval and are prohibited from shipping firearms with FedEx.

With this private suppression of firearms shipping, the USPS’s role in the meaningful exercise of Second Amendment rights has become more important than ever.

The Trump administration DOJ appears to understand the threat, acknowledging in the OLC memo that,

major express services currently forbid all persons from shipping firearms, except for some federal firearms licensees that have private shipping agreements. Thus, unlicensed private citizens face a complete ban on shipping concealable firearms, even though handguns are among the core “arms” protected by the Second Amendment.

In the memorandum, OLC subjected 18 U.S.C. § 1715 to the proper Second Amendment analysis outlined in the U.S. Supreme Court’s decision in the NRA-supported case New York State Rifle & Pistol Association v. Bruen.

First, the document makes clear the U.S. Mail prohibition serves an illegitimate suppression of a protected right, explaining, “to frustrate protected arms’ transportability, thereby making it more difficult for citizens to obtain such weapons—constitutes a per se infringement upon the Second Amendment.”

Next, the OLC determined that the measure is not consistent with the history and tradition of U.S. firearms regulation. The document pointed out “We did not find any relevant historical tradition of generally prohibiting the shipment of constitutionally protected arms.”

After making these dispositive findings, the memorandum concludes,

the Executive Branch may not, consistent with the Constitution, enforce section 1715 with respect to constitutionally protected firearms, and the Postal Service should modify its regulations to conform with the scope of the Second Amendment as described in this opinion.

If the directions of the OLC memorandum are carried through, it will be the latest in a litany of important steps that the Trump administration has taken to protect Second Amendment rights.

While the DOJ OLC is addressing matters regarding the USPS, gun owners would no doubt appreciate it if the office applied a similarly judicious Bruen analysis to the postal service’s ban on carry at post offices open to the public.

Hopefully, the USPS will take swift action to comply with OLC’s findings. We will keep our readers informed as the situation develops.