The Arms Trade Was a Free Calling

The demand, and the answer

Spring 1793. Britain and France were at war. Washington had issued his neutrality proclamation. And the British minister in Philadelphia, George Hammond, was filing memorials with the Secretary of State. One said a French agent was buying up American arms to ship to France.

Hammond wanted it stopped. On May 15, 1793, Thomas Jefferson answered him:

"Our Citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistance because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle, and impossible in practice."

That spelling, "subsistance," is in the letter as preserved.

He kept going:

"The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the Hands of any of the belligerent powers on their way to the ports of their enemies."

Read that carefully. The only consequence was out at sea. If a belligerent caught American arms headed for its enemy, it could take them. At home, nothing changed. No permit. No register. No federal officer standing between a gunsmith and his customer.

This was not an offhand remark

Some letters are casual. This one wasn't. The editors of The Papers of Thomas Jefferson call it a "key official statement on American neutrality policy." They note it went out "after it had been reviewed by the Cabinet and approved by the President." Washington himself sent it back to Jefferson that day with his approval.

The same principle went to the French side. In a letter to the French minister, Jean Baptiste Ternant, dated the same day, Jefferson wrote that "our citizens have been always free to make, vend and export arms: that it is the constant occupation and livelihood of some of them." The rule was the same for both belligerents. That was the point of neutrality.

So this is the founding generation's executive branch, in a wartime crisis, in a formal note to a foreign power, saying that the arms trade belonged to the citizens. Jefferson called it their "callings." He called it their "livelihood." He did not call it a privilege the government handed out.

What that tells us about licensing

If any moment could have justified federal control over making and selling arms, it was this one. A young country, a great-power war, a foreign minister pressing for action, and real fear of being dragged in. The answer was still no. Suppressing the trade would be "hard in principle, and impossible in practice."

Not even a war could justify licensing what peaceable citizens were "always free" to do.

That is why a federal license to make, sell, or transfer firearms is a barefaced usurpation. It takes something the founders treated as an ordinary trade of free men and turns it into permission. The founders knew how to tax, regulate, and restrict when they wanted to. On the arms trade at home, their answer was that the government had no business suppressing it.

Where federal licensing actually came from

Federal dealer licensing is not old. It is a twentieth-century invention.

The first came in the Federal Firearms Act of 1938. Section 2(a) made it unlawful "for any manufacturer or dealer, except a manufacturer or dealer having a license issued under the provisions of this Act, to transport, ship, or receive any firearm or ammunition in interstate or foreign commerce." The fee was set in Section 3: a manufacturer would "pay a fee of $25 per annum and, if a dealer, shall pay a fee of $1 per annum."

That is 145 years after Jefferson's letter. A dollar a year sounds harmless. It established that a federal permission slip stood between the citizen and the trade.

Thirty years later the Gun Control Act of 1968 replaced that scheme. Today the statute, 18 U.S.C. § 923(a), reads: "No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General."

Line that up against 1793. Jefferson: "always free to make, vend, and export arms." Today: no one may engage in the business "until he has filed an application with and received a license." These two statements cannot both describe the same right.

The Heller sentence they lean on

Defenders of the licensing regime usually cite one line from District of Columbia v. Heller (2008). The Court wrote that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." 554 U.S. 570, 626–27 (2008).

That was dicta. Heller was about a handgun ban in a home. It did not test any licensing law against the historical record.

Then came New York State Rifle & Pistol Association v. Bruen (2022). The test is now historical tradition: when the plain text covers the conduct, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." 597 U.S. 1, 17 (2022).

Under that test, a passing line in Heller doesn't count as proof. The government has to show a founding-era tradition. Jefferson's letter is evidence that the tradition ran the other way. A regime that first showed up in 1938 doesn't become "longstanding" just because a court called it that in passing.

Acquiring arms is part of the right

The other dodge is to say the Second Amendment says nothing about buying or selling. Courts are rejecting that.

In Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc), the majority held that "the Constitution does not confer a freestanding right on commercial proprietors to sell firearms" (slip op. at 7–8). Judge Tallman, dissenting in part, wrote that the ordinance "substantially interferes with the right of its customers to keep and bear arms," and that "the ability of lawful gun owners to find a reasonably available source to buy, service, test, and properly license firearms is an attendant right to the fundamental right to bear arms." He added: "I fear today's decision inflicts yet another wound on our precious constitutional right." Judge Bea dissented separately.

In 2025 the Tenth Circuit said it more plainly. In Ortega v. Grisham, which struck down New Mexico's seven-day waiting period at the preliminary injunction stage, Judge Tymkovich wrote: "One cannot keep or bear arms if one cannot acquire them." The court held that "acquiring, purchasing, and possessing firearms is a necessary predicate to keeping and bearing them." It quoted the Fifth Circuit in Reese v. ATF: "the right to 'keep and bear arms' surely implies the right to purchase them."

If the right to buy is protected, the right to sell can't be treated as a favor from the government. Every purchase needs a seller. The founders understood that. Jefferson's gunsmiths made the arms, sold them, and shipped them abroad, and the government's only answer to a foreign power was that they were free to do it.

The record is plain

The founding generation didn't license the arms trade. It defended that trade against a foreign power in the middle of a war. Federal licensing came almost a century and a half later and grew from there.

Requiring a federal license to make, sell, or transfer firearms is a barefaced usurpation. In 1793 the arms trade was a free calling. Under the Constitution, it still is.

Notes

Thomas Jefferson to George Hammond, May 15, 1793, Founders Online (National Archives): https://founders.archives.gov/documents/Jefferson/01-26-02-0031

Thomas Jefferson to Jean Baptiste Ternant, May 15, 1793, Founders Online: https://founders.archives.gov/documents/Jefferson/01-26-02-0034

Federal Firearms Act, ch. 850, 52 Stat. 1250 (June 30, 1938): https://www.govinfo.gov/link/statute/52/1250

18 U.S.C. § 923 (Cornell LII): https://www.law.cornell.edu/uscode/text/18/923

District of Columbia v. Heller, 554 U.S. 570 (2008): https://www.law.cornell.edu/supct/html/07-290.ZO.html

New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022): https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

Teixeira v. County of Alameda, 873 F.3d 670 (9th Cir. 2017) (en banc): https://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/13-17132.pdf

Ortega v. Grisham, No. 24-2121 (10th Cir. Aug. 19, 2025): https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111284574.pdf