Attorneys General question companies' firearms shipping policies

Dec. 1—Attorneys General from 18 states want to know the details behind major shipping companies' new policies regarding tracking firearm sales.

West Virginia AG Patrick Morrisey is part of the coalition requesting clarification on those policies that allow them to track firearm sales with "unprecedented specificity and bypass warrant requirements to share that information with federal agencies."

Morrisey said in an announcement Wednesday that reports indicate UPS and Fedex are now "burdening those who hold Federal Firearms Licenses by requiring them to ship separately and track firearms, firearms parts and firearm products so gun purchases can be tracked and retain documents about what specific items those shipments contain and make that information available to the companies upon request."

"These demands, in tandem, allow [UPS/FedEx] to create a database of American gun purchasers and determine exactly what items they purchased... In doing so you, perhaps inadvertently, give federal agencies a workaround to normal warrant requirements," Morrisey joined the other AGs in saying in the request. "This allows [UPS/FedEx] to provide information at will or upon request to federal agencies—information detailing which Americans are buying what guns. Additionally, we recommend that you consider taking actions to limit potential liability moving forward, including the immediate cessation of any existing warrantless information sharing with federal agencies about gun shipments."

In addition to requesting updated FFL-related shipping policies from the two companies, Morrisey also asked them to clarify the following:

—Did UPS/FedEx enact these policies with the goal of information sharing with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) or any other federal agency?

—Did UPS/FedEx enact these policies at the request of officials in ATF, a different federal agency, or on its own initiative?

—If UPS/FedEx implemented these policies at the request of a federal agency, please identify that agency, the officials who made that request, the nature of that communication, and any legal authorization cited by those officials.

—If UPS/FedEx changed its policies on its own initiative, please explain why it made those changes.

—Did UPS/FedEx communicate or coordinate with each other in making these changes?

—Did ATF or other federal agency employees help draft the updated shipping agreements?

Morrisey joined in the Montana-led letters with his counterparts from Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, South Carolina, Texas, Utah and Wyoming

On a related issue, Sen. Shelley Moore Capito, R-W.Va., recently questioned why some credit card companies have started a new separate merchant code for firearms sales.

Capito sent a letter to Visa, Mastercard and American Express asking why the decision was made and what the purpose is.

"I write to express my apprehension regarding the decision to implement new, separate, merchant category codes (MCCs) for firearms sales under the International Organization for Standardizations (ISO) guidelines," she said in the letter. "I am concerned that these efforts will undermine the ability of lawful Americans to exercise their constitutional Second Amendment rights, and seek reassurance that you will not participate in activist efforts to impede free exercise of these rights."

Capito said the move is a "worrying signal to legal sellers and buyers of firearms that their purchases can be monitored, disclosed, or even prevented from occurring."

"This prompts serious constitutional concerns, and sets a troubling precedent wherein gun owners can be impeded in their free exercise of constitutional rights through fear of reprisal, or even the threat of their privacy being invaded," she said. "Visa, Mastercard, and American Express are under no legal obligation to implement this new MCC and I urge you to change course immediately."

The ISO's internal committee (Registration and Maintenance Management Group (RMMG)) approved the creation of a new MCC for gun retailers on Sept. 9, 2022, she said.

Capito told the companies that if they choose to move forward with the new codes, they need to clarify the reasons to implement the change and what would be done with the information.

Those questions include:

—Will you be storing and tracking individual purchases of firearms, and if so, what are your plans to share this information externally, including with government agencies?

—How will you ensure that the privacy of law-abiding firearms owners is maintained?

—What proactive steps and guidelines will you provide to ensure that constitutional protections are not violated?

—Is there a clear standard of practice for merchants and/or individuals to opt-out of being assigned as a firearm seller under the MCC outside of submitting a request to your companies?

Capito also wants to know who influenced the decision regarding the new codes.

Morrisey also questioned the move and joined a coalition of AGs from 24 states opposing the decision.

"Categorizing the constitutionally protected right to purchase firearms unfairly singles out law-abiding merchants and consumers alike," a letter sent by the coalition said. "Efforts to track and monitor sales at gun stores would only result in vague and misleading information. This categorization would not recognize the difference, for example, between the purchase of a gun safe and a firearm. Nor would it capture firearm purchases made at department stores, resulting in arbitrarily disparate treatment of 'gun store' merchants and consumers ... Social policy should be debated and determined within our political institutions. Americans are tired of seeing corporate leverage used to advance political goals that cannot muster basic democratic support."

According to an article in The Hill, gun control activists have long demanded the credit card giants establish a merchant category code (MCC) for firearm purchases, arguing it would be a commonsense policy for tracking gun and ammunition purchases. MCCs exist for nearly every kind of purchase, but gun purchases were previously categorized as general merchandise.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com