Under pressure from the governors of New York and California and their enormous state pension funds, Visa, Mastercard and American Express have agreed to keep a list of commercial transactions made through their credit card systems at gun shops.
These credit card middlemen make more money the more purchasers spend, but this pivot to social activism, though lawful, is dangerous to freedom and manifests an antipathy to constitutional norms by the corporations whose services many of us employ without a second thought. Of course, the government involvement is unconstitutional.
The pension funds, managed by state government officials with known animosities to lawful gun ownership, are large shareholders in credit card companies. Their public pressure on the credit card companies to do anything to chill lawful gun ownership constitutes the use of government financial power to erode Second Amendment rights, which the Supreme Court has upheld three times since 2008.
The government officials who have pushed the credit card companies to do this apparently do not take seriously their oaths to uphold the Constitution. Or, perhaps, they deceptively take the oath of office to a Constitution as they wish it to be, and not as the court has interpreted it.
The court has defined the right to keep guns in the home in a case called Heller, and the right to carry guns outside the home in a case called Bruen, as fundamental personal rights of pre-political origins. Stated differently, the right to own, carry and use a gun is a modern-day extension of the ancient right to self-defense, which is a natural right. The court recognized that adults may own, carry and use the same level of weaponry that the bad guys do and that the government uses.
This is so because the dual purposes of the Second Amendment are to recognize and protect the right to shoot crazies and thugs who are killing or threatening innocents before the police arrive and the right to shoot at agents of a totalitarian government or an invading force.
Just three months ago in the Bruen case, the court ruled that the Second Amendment’s protections are not second-class, rather they are coextensive with the protections of the First Amendment. That amendment, of course, recognizes the natural rights to think as you wish, to say what you think, to publish what you say, to associate or not with whomever you please, and to worship how you wish or not. These rights — along with the rights to self-defense, property ownership and the right to be left alone — are the fundamental natural rights utilized by all rational persons in the pursuit of happiness.
Now, back to the big-state pension funds cajoling the credit card companies to keep records for the government. The records are of no commercial value to credit card companies. If you buy a $2,000 gun safe or $2,000 in gun safety lessons or $2,000 in guns and ammunition at a gun shop, the credit card companies’ lists will just show a $2,000 gun shop purchase. They will not show the item acquired.
Since the right interfered with here is fundamental – that’s the highest category of rights we have – it is unconstitutional for the government to lift a finger against it. From 1934 to 2022, the states had near carte blanche to interfere with gun ownership outside the home. That was based on a now reversed, poorly articulated and profoundly unjust Supreme Court decision called Miller v. U.S, in which only the government’s lawyers were heard. And the states made the most of the authoritarian authorization Miller granted to them.
Yet in 2008, and again this year, the Supreme Court finally recognized that Miller was wrongly heard (hearing only the government’s side of the case) and wrongly decided (holding that the Second Amendment only protected state militias). Thus, the same big-government states that Miller unleashed, Heller and Bruen now restrain.
The anti-gun crowd has difficulty accepting this, just as they do any court decision that liberates folks from government clutches. Yet, we and they would all lead the howls of complaint if the credit card companies reported our book purchases or internet usage fees to the government.
We already have massive spying on us by the feds and the states. This is done not by search warrants as the Fourth Amendment requires, but by government at all levels ignoring the Fourth Amendment.
As this column argued last week, the billions of dollars spent on this surveillance is largely without express legislative authorization and consists at the federal level of the exploitation of the intelligence community’s secret budgets, and at the local and state levels of police slush funds with expenditures not authorized by a proper legislative body after a proper public debate.
Where does all this leave us?
It leaves us with the certain knowledge that many of our elected officials — folks we have hired to protect our rights — do not take their oaths of office seriously. It leaves us with a national gun registry nowhere authorized by the Constitution. And it leaves us with the knowledge that the feds have yet another avenue on which to violate our privacy by creepily looking at our credit card bills. Many states already unconstitutionally keep track of gun ownership. Thanks to the credit card companies, the feds can now do so as well.
What should you do if you used a credit card to make a gun shop purchase and the feds come knocking at your door asking to see your hardware? You should ask to see their search warrant. They won’t have one, in which case you should politely say, “Have a good day” and close and lock your door. Then call your local police and report unwanted knocking on your door by an armed stranger.
Does anyone in government take rights seriously?
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.