Facebook Isn’t Violating Your 2nd Amendment Rights

On Friday, January 29, 2016, Facebook announced that it was banning private sales of guns on its social network and on Instagram, in an attempt to end unlicensed gun transactions facilitated through its social media forums. It should also be noted that although the ban applies to private, person-to-person gun sales, licensed commercial gun dealers and gun clubs will be able to maintain their Facebook and Instagram accounts for commercial purposes. The purported reason for the change in policy is that:

” Although Facebook was not directly involved in gun sales, it has served as a forum for gun sales to be negotiated, without people having to undergo background checks. The social network, with 1.6 billion monthly visitors, had become one of the world’s largest marketplaces for guns and was increasingly evolving into an e-commerce site where it could facilitate transactions of goods (source).”

Predictably, after the announcement, the “Obummer is coming for my guns”/”Molon Labe”/”Come and Take it” crowd immediately started throwing a hissy fit about their 2nd Amendment rights (if you need proof, head over to any right wing Facebook page and you’ll find hundreds, if not thousands of comments regarding Facebook “violating people’s 2nd Amendment rights”). The problem however, is that these statement are entirely incorrect, because the 2nd Amendment doesn’t apply in this situation. So clearly, these people either skipped the day in civics class where they were taught about  the state action doctrine and therefore clearly (and laughably) don’t seem to realize the Bill of Rights doesn’t apply, or worse they simply just don’t seem to care that their understanding of the Constitution is flawed at best, and flat out incorrect at worst. Maybe it’s time for a remedial lesson?

Now, we seriously should not have to go over this concept every damn time something along these lines occurs, but unfortunately, here we go again. The reason the 2nd Amendment does not apply in this situation, is because Facebook is a private company; Facebook is not the government. Therefore, if Facebook decides to ban private gun sales on its social media platform, Facebook has every right to do so; and not only is Facebook not violating anyone’s 2nd Amendment rights, the 2nd Amendment isn’t implicated.

In closing, constitutional rights i.e. the Bill of Rights, apply in situations where THE GOVERNMENT (federal, state, city, and/or local) is the entity taking action (i.e. a “state actor”) against the individual right(s). On the contrary, where the actor is a private corporation (i.e. a “private actor”), such as Facebook, the 2nd Amendment doesn’t apply. And yes, it really is that simple.

DISCLAIMER: The information in this article is provided for general informational purposes only and is not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied.






About Ilyssa Fuchs 6 Articles
Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who has both a Juris Doctor and a B.A. in Political Science and Government. She is the founder and CEO of the popular Facebook page Politically Preposterous and a political and legal analyst on Let Your Voice Be Heard Radio. You can also find Ilyssa on Twitter, @IlyssaFuchs.
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