Regulating Gun Rentals


A machine gun overpowers a nine-year-old girl, erratically spraying bullets and accidentally killing her instructor; a perturbed mother slays her son and then takes her own life; a convicted felon circumvents federal prohibitions to access a firearm to commit suicide; and, perhaps most notably, Navy SEAL war veteran Chris Kyle, focus of the movie American Sniper, is murdered while attempting to help another veteran recover from post-traumatic stress disorder. We have all seen the headlines, but we have largely ignored the source of this heartbreak. The ramifications of these examples are not merely cinematic, but also involve families suffering from grievous loss. Much ink has been spilled over these news stories, yet only a minimal amount of attention has been paid to the legal issues involved. Other than preventable tragedy, what is the common denominator in these stories? All of these misfortunes took place at a law-abiding gun range.

Few debates are as heated as those involving the Second Amendment right to bear arms and the role of the state in regulating that right. Despite this extensive discussion, the issue of firearm violence on gun ranges has been left unexamined. Loopholes in the regulatory framework for gun ranges endanger our loved ones and threaten public safety across the country.

This Article argues that, unlike gun ownership, on-premises gun rental does not implicate the core protections of the Second Amendment as defined in District of Columbia v. Heller. Heller explains that the Second Amendment confers an individual right “to keep and bear Arms” for the purpose of self-defense in the home. This right, however, refers only to ownership, and renters—by definition—do not own rented firearms. Moreover, gun rentals are, at best, only tangentially related to an individual’s right to self-defense.

To close the loopholes in the current regulatory framework, this Article proposes rational gun rental regulations that will ultimately increase safety on gun ranges and minimize the loss of life that has become all too familiar, but often overlooked, in many areas of the country. These regulations include: (1) treating on-premises and off-premises gun rentals the same; (2) requiring National Instant Criminal Background Check System checks for non-gun owners who borrow weapons; (3) limiting the types of guns permitted for rental; and (4) imposing minimum age requirements. Because gun rental regulations do not implicate any ownership or self-defense interests, this Article argues that these regulations should receive rational basis constitutional review only. Given the government’s strong interest in ensuring public safety and the relatively minor burden imposed on gun renters, gun rental regulations would easily pass muster under this standard. Further, even if a court were to find that gun rental regulations warrant intermediate constitutional scrutiny, this Article demonstrates that these regulations would also survive a heightened level of review.

About the Author

Barnard T. Welsh Scholar and Professor of Law and Justice and Co-Director, Criminal Justice Practice and Policy Institute, American University, Washington College of Law. A.B. University of Pennsylvania; J.D. Harvard University.

By uclalaw