New Fronts in the War on Gun Owners

What our adversaries lack in logic, integrity and public support, they make up for in determination, underhandedness and cunning.

With the American people rejecting the radical gun-ban agenda through their elected representatives and a U.S. Supreme Court that respects Second Amendment rights, restless gun-control activists and anti-gun politicians are no longer satisfied with confining their campaign to the legislative process and are increasingly taking alternative steps to pursue their failed policies. In some cases, this means marshalling ostensibly private actors to enact firearms restrictions. In other instances, gun-control advocates advance ever-more-dubious legal theories to curtail access to firearms with frivolous lawsuits.

Since at least 2018, anti-gun activists have pressured the major payment processors, such as Visa, Mastercard and American Express, to restrict how gun buyers and firearm retailers could use the payment networks. That year, gun-control activist Andrew Ross Sorkin, who styles himself a journalist, wrote in The New York Times that the payment processors and banks could “set new rules for the sales of guns in America.” Rather than leave it to the U.S. Constitution or democracy, Sorkin proposed that these companies deny their services to gun stores that sell certain commonly owned semi-automatic firearms. The result, Sorkin boasted, would be that these guns “would be eliminated from virtually every firearms store in America.”

The payment processors weren’t receptive to the notion of becoming the moral arbiters of which lawful products Americans can buy. So, gun-control activists hatched a new plan to leverage the payment networks to their ends.

Retailers on the major payment-processing networks have a Merchant Category Code (MCC) that corresponds to the type of business they conduct. Firearm retailers are typically classified under the MCC for “sporting goods stores” or “miscellaneous retail stores.” As Visa has explained, payment processors “use MCC data for a range of purposes, including activity tracking, reporting, and risk management.” MCCs are set by the Geneva, Switzerland-based nongovernmental International Organization for Standardization (ISO), typically with some input from the payment-processing industry.

For years, gun-control advocates and their political allies pressured the payment processors to support an MCC specific to firearm retailers. The goal of such a code is to enable the payment processors and banks to compile and track data on gun and ammunition sales and even potentially block so-called “suspicious” sales.

In 2021, New York City-based Amalgamated Bank applied to the ISO to create a firearm-retailer MCC. The bank’s efforts were initially rejected, then rejected again in early 2022 following an appeal. 

On Sept. 1, however, Sen. Elizabeth Warren (D-Mass.) led a letter from anti-gun lawmakers to the CEOs of the major payment processors demanding that they support the firearm-retailer MCC surveillance scheme. Gun-confiscation advocate Sen. Dianne Feinstein (D-Calif.) and 26 other like-minded members of Congress joined the Warren letter.

Responding to Sen. Warren on Sept. 9, Visa explained that they opposed the gun-control effort because “If a transaction is legal, Visa’s policy is to remain neutral and process the transaction.” The payment processor went on to note, “We believe that asking payment networks to serve as a moral authority by deciding which legal goods can or cannot be purchased sets a dangerous precedent. We understood Amalgamated Bank’s request to be justified, at least in part, by an interest in blocking transactions that would fall under such a new category, and Visa’s rules expressly prohibit blocking of legal transactions under an MCC.”

Despite Visa’s objection, ISO’s technical subcommittee 68/SC 9 approved the firearm-retailer MCC. The participating members of the subcommittee include representatives from the national standards bodies of Russia and China—two countries that aren’t exactly known for their good governance and commitment to civil liberties.

As for how the MCC could be abused, Amalgamated Bank has stated that it intends to use it to develop a software algorithm “to report suspicious activity and illegal gun sales to authorities.” A definition of “suspicious activity” has not been provided, but as for “illegal gun sales,” the proposed scheme makes no sense. Firearm retailers are already required to run an FBI National Instant Criminal Background Check System (NICS) check on gun buyers.

Similarly, The New York Times contemplated, “Banks could then either allow [flagged] transactions, or block them and file suspicious activity reports with the Treasury Department’s Financial Crimes Enforcement Network, which would ideally also create a system to quickly forward that information to local law enforcement and the F.B.I.”

John Feinblatt, Everytown for Gun Safety’s president, further fleshed out how the MCC could be misused, stating, “Banks should report dangerous warning signs to law enforcement when extremists are quickly building up massive stockpiles of guns.” This brings about another definitional question: What’s an “extremist”? In modern political speak, the word is devoid of a firm definition and is often used to describe those who exercise their First Amendment rights in a manner the current regime finds objectionable. Consider that in a Sept. 1 speech, President Joe Biden said, “Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic.”

Celebrating the new MCC, New York State Assembly Member Chantel Jackson stated, “Now, credit card companies will explicitly record gun-related purchases, and this data will help law enforcement to analyze suspicious spending patterns.” This statement suggests gun-control advocates may intend to make all firearm-retailer MCC data available to law enforcement, who would then conduct their own analysis.

At the very least, the firearm-retailer MCC is intended to enable a sort of quasi-private registry of gun owners. The scheme is a private-sector end-run around several provisions of federal law, including those in the Firearm Owners’ Protection Act and the Brady Act, that prohibit the federal government from centralizing and maintaining gun-owner data.

To counter this new threat, NRA is working with elected officials at the federal and state levels to protect gun-owner privacy and stop or minimize the implementation of the new MCC.

As of press time, pro-gun lawmakers in the U.S. House and Senate have challenged the payment-processing companies as to how they intend to implement the new MCC. Attorneys general from 24 states notified the major payment processors that they intend to use the laws of their states and the power of their offices to protect the privacy of law-abiding gun owners and urged the companies to “take immediate action to comport with our consumer protection laws and respect the constitutional rights of all Americans.” Going into 2023, gun-rights supporters should expect a handful of pro-gun states to explore legislation curtailing the collection of gun-owner payment data.

Another irregular attack on gun rights has been an anti-gun effort to pressure the major consumer shipping companies to curtail business with gun owners and the firearms industry.

As of press time, both Federal Express (FedEx) and United Parcel Service (UPS) have changed their policies to prohibit non-Federal Firearm Licensees (FFLs) from shipping firearms using their services. UPS’s policy goes further, prohibiting non-FFLs from shipping “Firearm Products,” which is defined to include “Firearm Parts.” The latter term is defined by the policy as “any part or component of a Firearm that does not by itself meet the definition of a ‘Firearm,’” and includes, but is not limited to, “barrels, stocks, grips, firing pins, sights, and magazines/clips.”

The problem created by these policies is particularly acute in the case of handguns. Following the changes, gun owners can still use the U.S. Postal Service to ship rifles and shotguns to out-of-state gun dealers and manufacturers. However, federal law prohibits non-licensees from shipping handguns through the mail. Therefore, gun owners seeking to ship a handgun for repair or other lawful purposes are prohibited from using the three most-viable shipping options.

The third new avenue of attack by gun-control advocates is the use of predatory litigation to get around congressionally enacted legal protections for the firearm industry.

As intended, the Protection of Lawful Commerce in Arms Act (PLCAA) has prevented gun-control advocates and opportunistic tort attorneys from bankrupting the U.S. firearms industry with frivolous litigation. Nevertheless, anti-gun activists have continued to try to impose liability on gun manufacturers for the third-party criminal misuse of their products by way of increasingly flimsy legal arguments.

In an effort to undo the entire act, gun-control advocates have seized on wording in the PLCAA which makes clear that firearms manufacturers that break the law can be held liable. Specifically, the PLCAA allows cases to move forward when “a manufacturer or seller of a [firearm] product knowingly violated a State or Federal statute applicable to the sale or marketing of the product.”

Gun-controllers have honed in on the “marketing” language and claimed that run-of-the-mill, and First Amendment-protected, firearms advertising violates existing state laws against unfair trade practices, opening the manufacturer to liability for third-party criminal acts. Some states have gone further and enacted convoluted firearm sale and marketing laws in an attempt to ensnare the firearms industry in litigation that gun-control supporters claim would be permissible under the PLCAA. 

With gun-control advocates and their political allies desperate for anything they can call a victory, NRA members must be more vigilant than ever of unconventional attacks on our Second Amendment rights.