I know the US Constitution covers the right to bear arms, but can the government theoretically ban the buying, selling and manufacture of arms?
Keep in mind that prior to District of Columbia v. Heller, 554 US 570 (2008), the Second Amendment to the U.S. Constitution was basically a dead letter with no enforceable effect, in substantial part due to its ruling in United States v. Miller, 307 U.S. 174 (1939).
The Supreme Court held in United States v. Cruikshank (1876) that the Second Amendment did not apply to state governments, affirming an earlier decision in Barron v. Baltimore (1833) that the Bill of Rights did not apply to state and local governments. This remained good law, and the Second Amendment as interpreted by Heller (which was limited to federal law), was not "incorporated" to apply to state and local governments until McDonald v. City of Chicago, 561 U.S. 742 (2010) was decided.
The development of this area of law is ongoing and evolving.
Heller and McDonald struck down laws that basically prohibited all private possession of handguns by ordinary people for use of self-defense in their homes.
Still, as Heller acknowledges, the Second Amendment itself, with its reference to a "well-regulated militia" on its face recognizes the validity of reasonable regulation of firearms. Heller and subsequent cases make clear that a complete ban on buying, selling or manufacturing firearms is not constitutional, but significant restrictions are allowed.
In particular, Heller expressly stated that:
nothing in our opinion should be taken to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms.
In general, business regulation of the sale and manufacture of firearms as long as its does not effectively foreclose or unduly burden an individual's right to self-defense with firearms is permitted.
As a result there has been very little litigation, post-Heller, of these kinds of regulations compared to regulations of individual possession and ownership of firearms.
Heller adopted the theory that the individual right to buy arms is tie-barred to the natural right of self-defense. So, selling military grade weapons to members of the general public (e.g. anti-tank missiles or surface to air missiles) has long been extremely regulated, and those restrictions appear to be constitutional. The courts have so far not adopted the political theory behind the Second Amendment which is that widespread firearm ownership discourages authoritarian regimes. Thus:
[T]he Supreme Court noted that one important limitation on the Second Amendment right is “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
The Court acknowledged that “weapons that are most useful in military service—M-16 rifles and the like—may be banned” without violating the Second Amendment.
The Court also recognized that its prior decision in Miller explained that the weapons protected by the Second Amendment are those “in common use at the time”; Miller held that for this reason, short-barreled shotguns (which were not in common use) are unprotected.
The selling and manufacture of firearms and explosives in the U.S. is regulated and taxed by the federal government and administered by the Alcohol and Tobacco Trade Bureau (TTB) within the U.S. Dept. of Treasury, in a regime of regulation that has been held to be constitutional. One must obtain a license to sell or manufacture firearms, which costs a significant amount to keep in force and can be revoked for failure to comply with regulatory requirements like conducting background checks and maintaining records. This has been upheld as constitutional. See United States v. Focia, 869 F.3d 1269 (11th Cir. 2017) (federal law prohibiting unlicensed dealing of firearms “merely ‘impos[es] conditions and qualifications on the commercial sale of arms’” so “qualifies as the kind of ‘presumptively lawful regulatory measure’ described in Heller”); United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016) (federal law prohibiting unlicensed firearms dealing is a facially constitutional “longstanding condition or qualification on the commercial sale of arms”).
States laws that have been upheld as valid likewise require background checks in sales involving private buyers and sellers of firearms. So have laws requiring sales by out of state dealers to be handled by someone with an in state dealer's license. Mance v. Sessions, No. 15-10311, 2018 U.S. App. LEXIS 20270 (5th Cir. July 20, 2018).
One excessively high sub-national tax on buying a firearm has been invalidated, although the outcomes vary in a face specific case by case manner. A tax on buying firearms in Chicago was upheld in Guns Save Life v. Ali, while a $1000 tax in the Marianas Islands was struck down in Murphy v. Guerrero. See also Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013) (upholding $340 fee to purchase a handgun); Bauer v. Becerra, 858 F.3d 1216 (9th Cir. 2017) (upholding law requiring all firearm purchasers to pay a $19 background check fee, when a portion of the fee goes to maintaining a database to track prohibited persons who have purchased firearms); Cruz-Kerkado v. Puerto Rico, No. 16-cv-2748, 2018 U.S. Dist. LEXIS 59290 (D. P.R. Apr. 5, 2018) (upholding a $250 licensing fee for concealed handgun permits); People v. Stevens, 2018 IL App (4th) 150871 (Ill. App. Ct. May 16, 2018) (upholding a $300 licensing fee for concealed handgun permits issued to out-of-state residents); Commonwealth v. Cassidy, 81 N.E.3d 822 (Mass. App. Ct. 2017) (summary decision) (rejecting argument that firearm license fee is an “excise tax on [the] fundamental right” of “private gun ownership”), aff’d, 479 Mass. 527 (2018).
Murphy and its sister case, Radich v. Guerrero, represented a near complete prohibition, and to some extent can be viewed as a case testing the question of whether Heller applies in a U.S. territory which has a different constitutional status than either the District of Columbia or a U.S. state (e.g. people born in the Marianas Islands are U.S. nationals, but not U.S. citizens).
In 2016, in Radich v. Guerrero, a federal district court struck down a regulatory system in the Commonwealth of the Northern Mariana Islands (CNMI), a US territory, which prohibited most private individuals from possessing and importing handguns and handgun ammunition. The court found this general prohibition on handgun possession to violate the Second Amendment, noting that “the Commonwealth’s ban on handguns cannot be squared with the Second Amendment right described in Heller and McDonald.” Later that year, the same federal district court struck down other aspects of CNMI’s gun laws, including a $1,000 handgun excise tax, a blanket prohibition on the public carry of firearms, a ban on certain assault weapons features, and a ban on long guns with caliber greater than .223.
Federal law that has been held to be constitutional likewise prohibits various classes of people including minors (although some restrictions on persons aged 18-20 have been struck down in a split of authority between different federal and state appellate courts considering the issue), drug users, people who have been involuntarily committed for mental health issues, see, e.g., Mai v. United States, 952 F.3d 1106, 1109 (9th Cir. 2020), undocumented aliens (see below), and people with prior convictions for felonies, see, e.g., United States v. Massey, 849 F.3d 262 (5th Cir. 2017) or for domestic violence offenses from buying firearms. For example, the 11th Circuit, the most conservative of the U.S. Court of Appeal, upheld the prohibition on undocumented immigrants buying or possessing firearms, in a decision issued this week.
Regarding regulation of sales to people age 18-20 see Jones v. Becerra, 498 F.Supp.3d 1317, 1326-28 (S.D. Cal. 2020) (concluding that age-based restrictions on firearms sales are consistent with longstanding historical prohibitions, and thus presumptively lawful regulations that do not implicate the Second Amendment); NRA of Am., Inc. v. Swearingen, No. 4:18cv137, 2021 U.S. Dist. LEXIS 117837 at *3 (N.D. Fl. June 24, 2021) (finding that “the Second Amendment does not protect the sale of firearms to 18-to-20-year-olds”); Mitchell v. Atkins, 483 F.Supp.3d 985, 993 (W.D. Wa. Aug. 31, 2020) (joining the “several courts that have concluded that firearms age restrictions, particularly those for people under 21, fall outside the Second Amendment’s ambit”); Lara v. Evanchick, No. 2:20-cv-1582, 2021 U.S. Dist. LEXIS 73813 at *4 (W.D. Penn. Apr. 16, 2021) (“An examination of federal caselaw following Heller shows a broad consensus that restrictions on ownership, possession and use for people younger than 21 fall within the types of ‘longstanding’ and ‘presumptively lawful’ regulations envisioned by Heller [which thus] fall outside the scope of the Second Amendment.”); Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,700 F.3d 185 (5th Cir. 2012); see also L.S. v. State, 120 So. 3d 55 (Fla. Dist. Ct. App. 2013).
Indeed, in 2021 about 14% of all federal criminal sentences were for firearms offenses, mostly possession of a firearm by a felon, for which federal law imposes a long mandatory minimum sentence.
The Supreme Court has weighed in on a Second Amendment case only two times since 2010. The first was in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam), involving a Massachusetts law that prohibited private possession of stun guns. In a short, unsigned opinion, the Court did not break any new legal ground or rule that stun guns are protected by the Second Amendment. Instead, the Caetano Court simply vacated and remanded a state court’s decision that upheld the constitutionality of the state’s stun gun ban using a test that the Supreme Court had previously rejected, and directed the state court to re-decide the case according to Heller.
Second, in 2019, the Supreme Court heard New York State Rifle & Pistol Association v. City of New York (“NYSRPA”). However, the NYSRPA Court ended up not issuing a substantive Second Amendment ruling in the case, which had been brought by a state affiliate of the NRA. Instead, by a 6–3 vote, the justices found that that the NYSRPA case was moot based on New York City’s decision to repeal the challenged handgun transport restrictions. N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 140 S. Ct. 1525, 1526 (2020) (per curiam). However, four justices joined separate opinions indicating that they would support taking up another Second Amendment case in the near future. Justice Kavanaugh, who agreed that the case was moot, wrote a separate concurrence to express “concern” that lower courts are wrongly upholding gun regulations in a manner inconsistent with the Supreme Court’s prior Second Amendment decisions. Justice Alito also wrote a dissent, joined by Gorsuch and in part by Thomas, disagreeing that the NYSRPA case was moot and expressing the same concern over lower courts. . . .
In April 2021, the Supreme Court granted certiorari in New York State Rifle & Pistol Association v. Bruen, No. 20-843 (“Bruen”), a challenge to New York State’s concealed carry licensing requirements brought by the same NRA-affiliated plaintiffs that had earlier initiated NYSRPA. Oral arguments were held on November 3rd, 2021, with questioning from the justices suggesting that a majority of the Court is likely to strike down New York’s requirement of “proper cause” to carry a loaded firearm in public.
Some of the gun control laws which have been upheld by lower courts post-Heller include:
Requiring “good cause” for the issuance of a permit to carry a concealed firearm.
Prohibiting the possession of machine guns, assault weapons, and large capacity ammunition magazines.
Requiring that firearms be stored in a locked container or other secure manner when not in the possession of the owner.
Forbidding gun possession by dangerous persons including those convicted of felonies and domestic violence crimes, and those who have been involuntarily committed to mental institutions.
Requiring the registration of all firearms.
Forbidding persons under 21 years old from possessing firearms or carrying guns in public.
Regulating firing ranges, including zoning, construction, and operation requirements.
Requiring that handguns sold within a state meet certain safety requirements.
Imposing fees on the commercial sale of handguns to fund firearm safety regulations.
Requiring a waiting period before completing a firearm sale.
Where else have Second Amendment claims been successful?
[T]he Seventh Circuit and two district courts struck down laws interpreted to completely ban the carry of guns in public, while the DC Circuit invalidated Washington DC’s “good cause” concealed carry permit law, departing from all other federal circuit courts to have considered such a law. In addition, while upholding the central components of Washington’s gun registration system, the DC Circuit struck down other provisions in the law, including a ban on registering multiple guns each month and a requirement that residents pass a test on the District’s gun laws. The Illinois Supreme Court struck down a law that prohibited carrying guns within 1,000 feet of a public park, finding the law “effectively prohibit[ed] the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago.” In 2011, the Seventh Circuit enjoined enforcement of a Chicago ordinance banning firing ranges in city limits where range training was a condition of lawful handgun ownership, and the same panel later struck down a zoning law restricting where firing ranges could operate and an age restriction barring entry into ranges by supervised minors. Finally, as previously mentioned, courts have approved a handful of as-applied challenges to federal prohibitions on firearm possession, including in the Third and Sixth Circuits.
Federal trial courts have ruled in favor of Second Amendment claims in various cases, several of which are currently being appealed. A district court in the Seventh Circuit struck down a Chicago law completely banning the sale or transfer of firearms except through inheritance, but explicitly reiterated that cities and states have broad authority to regulate the sale of firearms, including limits on the locations where dealers may operate. A district court in the Ninth Circuit, citing the now-vacated Peruta panel opinion, struck down regulations prohibiting the possession of firearms on U.S. Army Corps of Engineers property. A district court in the Ninth Circuit also issued an injunction blocking implementation of a California law prohibiting the possession of large-capacity magazines; the court found that California’s prohibitions on the sale, transfer, and possession of large-capacity magazines violate the Second Amendment and that the possession restrictions also violate the Takings Clause. The district court’s order is an extreme outlier that contradicts decisions reached by six federal appellate courts. Recognizing that the district court’s “decision [to enjoin California’s law] cuts a less-traveled path,” the district judge stayed his own injunction order in part, allowing California to continue to enforce the ban on the manufacture, sale, and transfer of large-capacity magazines pending the state’s appeal to the Ninth Circuit. Note that the district court had earlier issued a preliminary injunction that was narrowly affirmed by the Ninth Circuit in an unpublished decision that did not reach the merits of the constitutional challenge, but found only that the district court’s preliminary assessment was not an abuse of discretion.
Other outliers include: a California federal district court decision currently under appeal finding the state’s assault weapon prohibitions unconstitutional, North Carolina district court decision finding that a state law prohibiting the carrying of firearms during states of emergency violated the plaintiffs’ Second Amendment rights, an Ohio state-court decision sustaining a constitutional challenge to a domestic violence restraining order that prohibited the respondent from possessing firearms, a Massachusetts federal district court decision finding that a U.S. citizenship requirement for possessing and carrying firearms violated the plaintiffs’ Second Amendment rights, and decisions in Massachusetts, Illinois, Michigan, and New York striking down state laws prohibiting the possession of Tasers and stun guns, concluding that the Second Amendment protects those devices.
(Source) (citations to case law citations in the source omitted).
Only one case where a law has been struck down on Second Amendment grounds, other than Murphy mentioned above in the Marianas Islands, and one 7th Circuit trial court ruling (which involved a total ban), have invalidated regulations of the manufacture and sale and taxation of firearms, and the trial court decision in the 9th Circuit is unlikely to be upheld as it contradicts many other appellate court decisions.
Essentially, the case law has been applied at the margins to limit more extreme prohibitions and regulations in an "intermediate scrutiny" analysis, while still allowing substantial regulation.
Such laws would be struck down as unconstitutional
TLDR: The current interpretation of the 2nd amendment is that it provides an individual right to gun ownership, and that the right cannot be meaningfully hindered beyond very specific restrictions. A blanket ban on gun manufacture or sales would de-facto restrict gun ownership and thus unconstitutional under Heller.
While I may have missed something, there is no court cases on this issue that say something like "you can't ban the production of guns", but the implication of the major rulings on this issue leads to the conclusion that such a ban would be unconstitutional (at least under the current interpretation of the 2nd A). The major evidence that supports this are the major rulings regarding possession, taxes and age based sales restrictions.
District of Columbia v. Heller
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
There's a lot more that can be quoted and analyzed but the basic idea is that Heller, for the first time, made the 2nd amendment an individual right. By making the transition from group based rights (United States v. Miller) to individual, the court made any laws that ban sales unconstitutional. It would be silly to say that someone has the absolute right to gun ownership, but only if a gun were to magically appear in their hands -- banning sales would be an obvious infringement to the right of possession no different than a direct ban on the object itself.
There's been some attempts at getting around the 2nd by attaching high taxes to the purchases of ammo/guns. Such laws are also seen as generally unconstitutional.
The Illinois Supreme Court ruled Thursday that Cook County taxes on guns and ammunition violate the state constitution because they “directly burden a law-abiding citizen’s" second amendment right to buy the items for self-defense.
The court held that the $1,000 tax was an unconstitutional restriction on the right to bear arms. The court noted that the excise tax was roughly 670% of the purchase price, far from a de minimis intrusion on the Second Amendment right to bear arms.
Clearly this leads to the conclusion that if high taxes are unconstitutional, so would an outright ban.
Age-Based Sales Restrictions
A federal appeals court ruled Tuesday that the federal law banning handgun sales by licensed dealers to anyone under 21 is unconstitutional.
A panel of the 4th U.S. Circuit Court of Appeals, based in Richmond, Virginia, voted 2-1 to declare the law invalid. "Our nation's most cherished constitutional rights vest no later than 18. And the Second Amendment's right to keep and bear arms is no different," the majority opinion said.
(Again, this is in line with Heller, treating the 2nd as an individual right)
A federal appeals court ruled Wednesday that California’s ban on the sale of semiautomatic rifles to adults younger than 21 was unconstitutional. In a 2-1 decision, a panel of the U.S. 9th Circuit Court of Appeals found that the 2nd Amendment “protects the right of young adults to keep and bear arms, which includes the right to purchase them.”
In summary, because Heller reinterpreted the 2-A as an individual right, any ban on manufacture or sales would be unconstitutional as it is an infringement on the ability to exercise such rights.
The other answers here talk about laws based or revolving around the 2nd Amendment, but yes, it could happen because there's another option, even if it's a long shot.
Repeal the 2nd Amendment.
That would be the first step towards banning owning, manufacture, transport, use, etc. of guns and ammunition. It would avoid all the other legal hassles the other answers describe. It would also likely fail to happen specifically because it would avoid all those legal hassles.
The 18th Amendment was repealed by the 21st Amendment, so it's possible, however unlikely/improbable it is to actually happen*.
Repeal of Prohibition
Passed by Congress February 20, 1933. Ratified December 5, 1933. The 21st Amendment repealed the 18th Amendment
Changing the actual words of the Constitution does take an amendment, as does actually deleting, or repealing, an amendment. Including the first 10 amendments, the Bill of Rights, which were ratified in 1789, the Senate historian estimates that approximately 11,699 amendment changes have been proposed in Congress through 2016. Only one amendment, the 18th Amendment that established Prohibition, was later repealed by the states.
This 2nd link describes how people have considered repealing the 2nd Amendment for years. It also talks about how people want to repeal other Amendments, but that's a bit off topic.
Basically, the only way that this would even have any chance of working is to not just repeal it but to include a replacement. I'm not going to guess what that replacement would have to say to pass, since I don't have a psychology degree to try to figure out what it would take to make that happen, and, because of that, it would be off topic.
If the 2nd Amendment is repealed, it no longer becomes unconstitutional to outlaw owning, manufacture, sales, transportation, etc. of guns and ammunition. People will likely still make that argument, only to be reminded about the new Amendment, which they will probably say is unconstitutional even though it was approved to become part of the Constitution.
I'm not a lawyer, but I believe repealing the 2nd Amendment will nullify any case law that rules based on it. Case law sets precedent of how laws are to be interpreted, it doesn't make law. With a new Amendment, it's making a new law, so any precedent based on invalidated laws would now also become invalid. This would likely be tested in court.
There would also be a whole new set of precedent to be made based on the new Amendment, too.
*I say it's unlikely to to be repealed because of the lobbying done by pro-gun groups such as the National Rifle Association (NRA).
In 1975, [the NRA] formed a lobbying arm, the Institute for Legislative Action, to influence government policy. And in 1977 it formed its own Political Action Committee (PAC), to channel funds to legislators.
The NRA is now among the most powerful special interest lobby groups in the US, with a substantial budget to influence members of Congress on gun policy. It is run by executive vice-president Wayne LaPierre.
In 2020, the NRA spent about $250m (£200m) - far more than all the country's gun control advocacy groups put together.
But the NRA has a much larger membership than any of those groups and uses its funds for things such as gun ranges and educational programmes.
The NRA officially spends about $3m per year to influence gun policy.