Litigation Highlight: Plaintiffs File Second Amendment Challenge to Federal Ban on Mailing Firearms

In mid-July, two gun-rights groups and an individual plaintiff wishing to mail a handgun to her father filed suit in federal court in Pennsylvania alleging that the federal ban on mailing firearms through the U.S. Postal Service violates the Second Amendment.  This federal restriction dates to 1927—as the complaint notes, it was the first federal gun control law[1] and pre-dates the National Firearms Act by almost a decade.  The lawsuit, which is still in its early stages, implicates tricky questions surrounding legislative intent and how historical tests can account for technological innovation.

Filed on July 14, the Pennsylvania case is captioned Shreve v. United States Postal Service.  The plaintiffs ask the court to strike down 18 U.S.C. § 1715, which provides that “[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 contains exceptions for guns mailed in connection with military or law enforcement service and for “customary trade shipments” in which firearms are conveyed from manufacturers to dealers.  The statute only applies to the United States Postal Service.  Knowing violations of the ban constitute a federal crime.

Shreve, a Pennsylvania citizen, would like to mail a handgun to her father as a gift and is permitted to do so under state law. The two organizational plaintiffs, Gun Owners of America and Gun Owners Foundation, each assert standing because “some of the[ir] members . . .  also wish to use the U.S. Postal Service to mail their lawfully owned handguns and other concealable weapons for private, lawful purpose.”  The plaintiffs assert that they cannot use private courier services—such as UPS or FedEx—because “private common carriers have prohibited the practice [of mailing guns] for several years.”

The plaintiffs in Shreve argue that the conduct of mailing firearms is protected because, “if the Second Amendment’s plain text did not cover such ancillary acts as shipment or receipt, the government could ban these acts outright, crippling Americans’ access to firearms.”  They emphasize that, while “the U.S. Postal Service traces its lineage to 1775, . . . at no point did the Founders ever criminalize the mailing of handguns as the challenged statute does now.”  The complaint further argues that exceptions to the federal ban—including for official weapons shipped by government agencies, commercial transactions, and long guns—belie any purported public safety objective.  Plaintiffs frame the 1927 statute largely as a response to “anti-gun media sensationalism” that “did little – if anything – to curb violent crime.”  Thus, the complaint concludes, the law “is inconsistent with Founding-era historical tradition [and] violates the Second Amendment.”

First, it’s worth unpacking why this challenge to a 100-year-old law is being brought now.  Bruen is, of course, a large part of the story—the plaintiffs surely have a stronger argument that the restriction is inconsistent with history than they would under a means-end scrutiny approach that accounts for safety concerns with postal employees handling firearm shipments.

However, another wrinkle is the fact that, while major private carriers like UPS and FedEx were once willing to ship at least some firearms for private customers, that is no longer the case. The 1927 law did not place any restrictions on firearm shipments through private couriers.  And it appears that private companies did permit shipments until quite recently, at least in some form—one report suggests that UPS stopped shipping guns for private individuals in 2022 and FedEx changed its policy in 2020.  Both companies now generally limit firearm shipments to licensed dealers who have a pre-existing contractual relationship with the company.  That change may have been legally significant, too.  As a matter of standing, it’s not clear that a plaintiff like Shreve would be able to allege a cognizable injury based on the inability to ship with USPS if other options were available (even at a slightly higher cost).

Second, it’s not immediately clear from the complaint why—as the plaintiffs suggest—the approach to mailing would or should be the same for handguns and long guns.  The complaint suggests that it is “curious” that Americans “remain free to ship long guns like rifles and shotguns.”  Yet states, and the federal government, frequently regulate handguns differently from long guns.  For example, FFLs are permitted to sell long guns but not handguns to individuals under age 21.  And this has been true for centuries.  Much early state gun regulation focused specifically on small, easily concealable weapons such as pistols and knives but did not impact larger firearms like muskets or rifles.

Third and finally, the push to overturn the mail order ban comes at an interesting time: as self-manufactured firearms proliferate and it becomes easier to order gun parts that can be assembled into a working firearm.  As the Supreme Court recently noted, some build-it-yourself gun kits are “so easy to assemble that . . . an individual who ha[s] never before encountered the kit [i]s able to produce a gun from it in 21 minutes using only ‘common’ tools and instructions found in publicly available YouTube videos.”  Notably, the federal mailing ban in § 1715 does not appear to apply to all “firearms” under federal law, a term which ATF has construed to include many, if not all, gun assembly kits.  Rather, § 1715 applies only to a listed set of guns: “Pistols, revolvers, and other firearms capable of being concealed on the person.”  Shreve purportedly wishes to mail a fully operable handgun to her father; but future debates will likely center around the propriety of mailing kits, 80% receivers, and associated parts that enable the recipient to create an unserialized, untraceable firearm.