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Rogue Retailers or Agents of Necessary Change? Using Corporate Policy as a Tool to Regulate Gun Ownership

The tragedy of the Parkland, Florida high school shooting shocked the nation and sent thousands of student protestors out of the classrooms and into the streets. Sadly, the nation once again found itself asking the increasingly familiar question of how such senseless tragedies can be prevented. As the search for an answer to this question continues, several avenues of response are being explored. Some have focused on a failure of the “system” and take federal and state authorities to task for not heeding the warning signs. Others are considering how society can deal more effectively with the problem of mental illness. Still others are calling for more restrictive gun laws to address this problem. These calls for action are familiar and the likely federal response is equally familiar: nothing. Federal legislative action that puts further significant limitations on gun ownership is unlikely in the short term. As a result of legislative inaction, we are now seeing a grassroots response not only from concerned individuals, but from corporations willing to take actions that they hope will lessen the likelihood of another act of gun violence by someone under the age of twenty‐one. To accomplish this, retailers such as Walmart, Dick’s Sporting Goods (DSG), Kroger, and L.L. Bean have modified store policies across the United States and will no longer sell long guns (shotguns and rifles) or ammunition to those under twenty‐one. DSG was one of the first to implement this restriction on February 28, 2018. These actions have already been met with resistance from consumers in Oregon and Michigan who allege that such policies violate state public accommodation laws. While the scope of the public accommodation laws’ protections varies among states, Oregon and Michigan are among nineteen jurisdictions that consider age to be a protected class. The first lawsuits in the nation were filed in Oregon against DSG and Walmart by Tyler Watson, a twenty‐year‐old Oregon resident who was unable to purchase a rifle due to the retailers’ newly enacted age restrictions, alleging violation of the public accommodation laws. This Essay explores the merits of this claim using Mr. Watson’s case against DSG as the illustration since it is the furthest along procedurally. After explaining why Mr. Watson is likely to prevail in court, this Essay then concludes with a discussion of the implications of this case for other jurisdictions.