I’m scheduled to appear on CNN around 7:30 a.m. Eastern today to discuss Tennessee’s new law allowing teachers to be armed. A few years back I took the training teachers in Colorado need to be armed in schools that allow it. So, I should be able to give some unique insight.
I may get bumped for breaking news since that’s always a risk in live TV. But, if not, tune in and check out my interview!
On to the news now. We’ve covered the rapid spread of permitless gun-carry and how it’s quickly reaching a likely ceiling. Now, Contributing Writer Jake Fogleman takes a look at the latest gun-rights policy trend: credit card merchant code bans.
Then, I take a look at the Supreme Court’s new gun case. I think there are several reasons to think the Court is leaning against the ATF’s so-called ghost gun ban. Of course, I’m not the only one looking at this case.
That’s why we have law professor Jonathan Adler on the podcast to provide his insight into the case. And he has a different point of view on where the case might be headed. Listen to our conversation and see where you come down.
Analysis: Nixing Credit Card Codes is the Latest Gun-Rights Policy Trend [Member Exclusive]
By Jake Fogleman
Financial privacy measures have quickly become one of the fastest-spreading policy successes of the gun-rights movement.
Just this past week alone, three more Republican-led states enacted laws restricting the use of specialty merchant category codes (MCCs) for gun and ammunition stores. The Governors of Iowa, Tennessee, and Georgia signed bills with nearly identical language prohibiting credit and debit card companies from using any MCC that “distinguishes a firearms retailer from a general merchandise retailer or a sporting goods retailer.” The laws also contain provisions prohibiting financial institutions from discriminating against lawful gun businesses and from disclosing transaction data in most instances.
The total number of states with similar laws on the books now stands at 14 (Kentucky, Wyoming, Indiana, Utah, Florida, Idaho, Mississippi, Montana, North Dakota, Texas, and West Virginia have all adopted similar laws). Just two years ago, that number was zero.
That’s a remarkable amount of policy success in such a short period. The progress is akin to other widespread gun rights policy pushes, like permitless carry and Second Amendment sanctuary resolutions.
But while it took those movements decades to become popular across red states, MCC bans have been more of an overnight sensation. That’s largely in reaction to the swift increase in gun-control activism on the same topic.
Until recently, the intersection of merchant category codes and firearms policy was a foreign concept to most political observers. MCCs, which payment processing companies have used for many years, were relatively uncontroversial. They are often used to track general spending categories for things like rewards programs.
However, the seed for political discord over the codes was first planted in 2018 by financial writer Andrew Ross Sorkin. Writing in the New York Times, Sorkin documented numerous instances of high-profile mass shooters using credit or debit cards to purchase the guns and ammunition used in their attacks, often spending thousands of dollars in the process. He pitched the idea of banks and credit card companies attaching specific MCCs to gun stores the companies could use to “track” gun sales and help them report “suspicious” purchasing patterns to law enforcement.
While it did not initially receive much mainstream attention, the piece did inspire activist financial institutions like Amalgamated Bank to begin lobbying the International Organization for Standardization (ISO) to create a firearm MCC. The ISO eventually agreed to do so in 2022. Shortly after, major credit card companies like Visa, MasterCard, and American Express announced they would start using the new code, sparking backlash from gun-rights supporters.
Over 100 Republican congressmen, at least a dozen Senators, and two dozen attorneys general sent the companies separate letters excoriating their decision to adopt the codes. However, it was not until states began passing laws banning the use of the new MCC the pushback started seeing some success. The prospect of facing inconsistent legal regimes led the major companies to “pause” their implementation of the gun MCC last March.
“Multiple U.S. states are considering legislation to prohibit or restrict the use of the new merchant category code (MCC) for gun and ammunition stores,” Julia Thompson, a Visa spokesperson, told The Reload at the time. “There is now significant confusion and legal uncertainty in the payments ecosystem, and the state actions disrupt the intent of global standards. Accordingly, Visa is pausing implementation of the MCC.”
Officially, that is where things stand today, in a “paused” state without a final determination as to whether implementation of the MCC will move forward.
Democrats, spearheaded by figures like Senator Elizabeth Warren (D., Mass.), have continued to pressure the companies and are pushing legislation for nationwide implementation of a gun MCC. Republicans, in turn, have introduced legislation of their own banning the use of a gun MCC under federal law. Neither effort stands much chance of going anywhere in the current Congress.
But there are plenty of signs that the state trend against a gun store MCC will continue. States like New Hampshire, Ohio, Oklahoma, and Alabama are considering similar bills this year and likely won’t be the last. At the same time, as with so many other realms of gun policy in today’s polarized era, blue states are pursuing the exact opposite policy.
California lawmakers mandated the use of firearm MCCs last September with a bill signed into law by Governor Gavin Newsom (D.). Colorado lawmakers recently passed a bill to do the same, though Governor Jared Polis (D.) has not yet signed it into law.
The net result is shaping up to be a national patchwork approach to MCCs with uncertain commitments from the major credit card companies. There are some indications that the companies are taking steps to comply with California’s mandate despite their announced pause. However, they have refused to comment publicly on the matter. Currently, far more states are banning the code than states that have mandated it. That may hinder the viability of global payment companies implementing a code that only applies to one or two states.
The true test of success for the policy movement against gun store MCCs will be whether or not the major companies are forced to abandon the codes once and for all—either by an eventual act of Congress or through sheer unworkability.
Podcast: Law Professor Jonathan Adler on the Supreme Court’s New ‘Ghost Gun’ Case [Member Early Access]
By Stephen Gutowski
The Supreme Court has decided to take up another gun case. Although, it’s another one that doesn’t touch on the Second Amendment. This time, the Court will decide if the ATF’s rule restricting unfinished frames and receivers is an unlawful overreach of the agency’s power.
Jonathan Adler, a law professor at Case Western Reserve University, joins the show to give us his insight into this case and the Court’s recent uptick in gun cases.
He argued that the Court’s acceptance of two cases challenging ATF administrative power alongside an NRA First Amendment case and an actual Second Amendment case should be read as an increased appetite for gun cases. He noted that the Supreme Court has actually been taking fewer and fewer overall cases in recent years but more and more gun-related ones. He doesn’t think that can be brushed aside, even if most of the cases don’t deal with Second Amendment claims.
Still, Professor Adler said he isn’t confident the Court will side with the gun-rights plaintiffs in the so-called ghost gun case. He argued the way they intervened in the lower court case to issue stays on multiple rulings against the ATF should be read as tell for where the justices plan to go on the merits. He said a move like that might be more predictive of intent than most stays issued by federal courts.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is available here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Plus, on the news update, Contributing Writer Jake Fogleman and I discuss an NRA board member pitching Donald Trump Jr. to become the group’s new leader. We also talk about FEC records showing the group continues to be outraised by gun-control advocates, the ongoing permitless carry push in North Carolina, and the continued spread of gun store MCC bans in red states. Audio is here. Video is here.
Analysis: Where Will SCOTUS Come Down on ‘Ghost Guns’? [Member Exclusive]
By Stephen Gutowski
The Supreme Court is set to consider a challenge to the ATF’s unfinished frames and receivers rule, and there are some clues as to how they might rule.
On Monday, the Court agreed to take up Vanderstok v. Garland. The case centers on whether the ATF overstepped its authority by significantly expanding its interpretation of what constitutes a “firearm” under federal law. The outcome will determine the viability of selling unfinished parts, such as “80 percent” AR-15 lowers, without a federal gun dealing license. It will likely have a major impact on the homemade gun market that commonly uses those precursor parts.
The Court’s decision to grant cert is the result of a government appeal against the ruling of a three-judge panel on the Fifth Circuit Court of Appeals. The lower court sided with gun-rights plaintiffs and found the rule was likely “unlawful.”
Taking up a case that went in favor of the gun-rights litigants could be a sign that the Court wants to reverse that lower court decision. In fact, the Court’s tendency to take up cases where it wants to overturn the lower court is one of the main reasons to think it will go in favor of the NRA in the group’s First Amendment case. But that’s probably not what’s going on in this case.
Unlike challenges to state laws or state law enforcement, this case deals with the enforcement of federal law. The federal government requested the Court take it up. It requires the Court to settle an issue to avoid incongruity in how federal law is enforced nationwide.
If the Court didn’t take up this case, it would leave the ATF’s rule in place everywhere but the Fifth Circuit. SCOTUS prioritizes settling these sorts of questions, and it’s a reason to think that granting the case doesn’t say much about why it took it up beyond that.
What does say something about where the justices might come down is the record they’ve already established in this case.
The Supreme Court has already intervened here twice. Both times, it sided with the government. Both times, it blocked lower court injunctions against the ATF’s rule.
That might suggest that the justices will side with them on the merits, but that’s probably not the right read of what happened.
In fact, the earlier interventions actually suggest there are likely already four votes against the government. The first time the Court agreed to issue an administrative stay on the Fifth Circuit’s ruling, it noted that four justices wouldn’t have issued that stay. That probably tells us a lot more about where those justices stand than the five who voted for the procedural move.
It is much more likely a justice would vote for the stay but side with plaintiffs on the merits than the other way around.
Conservative Justices Alito, Gorsuch, Kavanaugh, and Thomas voted against issuing stays on the lower court rulings. So, there’s pretty good reason to think they’ll rule against the ATF on the merits. Liberal Justices Kagan and Sotomayor have commonly taken a narrow view of individual gun rights and an expansive view of government power over firearms regulation. There’s little reason thus far to think Justice Brown Jackson is any different on that front.
That leaves Justices Roberts and Coney Barrett. They sided with the liberals to grant stays on the lower court rulings. But both have signed on to rulings expanding gun-rights protections and limiting executive agency power.
It’s possible, perhaps even likely, they agreed to grant the stays for procedural reasons and will side with plaintiffs on the merits of the case.
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
