Second Amendment Does Not Extend to Unlicensed Export of Firearms Abroad; AECA’s U.S. Munitions List Delegation Sustained

1. Introduction

In United States v. Derby Clerfe (3d Cir. Aug. 10, 2026), the Third Circuit affirmed the conviction of Derby Clerfe, who purchased multiple 9mm handguns in Pennsylvania and arranged to smuggle them to Haiti without filing required export information and without any lawful export authorization. Clerfe pleaded guilty to conspiracy under 18 U.S.C. § 371, while reserving the right to appeal the denial of his motion to dismiss on two constitutional theories: (1) the laws governing export controls and export-information filings violated the Second Amendment, and (2) the Arms Export Control Act (“AECA”) unconstitutionally delegated legislative power to the President by allowing the executive to define “defense articles” on the United States Munitions List (“USML”).

The court rejected both challenges. It held that exporting firearms abroad in violation of arms-trafficking/export-control laws is not conduct covered by the Second Amendment’s “keep and bear Arms” text. Even assuming coverage, longstanding historical practice supports firearm export restrictions. The court also held that AECA’s delegation survives the modern “intelligible principle” test and would survive even under a more demanding approach, especially given the foreign-affairs context.

2. Summary of the Opinion

  • Second Amendment (Bruen step one): The phrase “keep and bear Arms” does not include exporting arms abroad; Clerfe’s conduct involved dispossession and international trafficking, not possessing or carrying arms for confrontation.
  • Second Amendment (Bruen step two, alternatively): A robust historical tradition—beginning immediately after ratification—supports restrictions on exporting arms, including laws from 1794, 1795, 1806, and 1807.
  • Non-delegation: AECA’s authorization to designate “defense articles” “[i]n furtherance of world peace and the security and foreign policy of the United States” provides an intelligible principle, supported by additional AECA policy statements and procedural safeguards; circuit precedent uniformly sustains it.
  • Judgment: Affirmed.

3. Analysis

3.1. Precedents Cited

A. Second Amendment framework and methodology

  • District of Columbia v. Heller, 554 U.S. 570 (2008): The court relied on Heller’s textual analysis of “keep Arms” (to have/possess) and “bear Arms” (to carry for confrontation). Heller anchored the Third Circuit’s conclusion that exportation—dispossession and transfer abroad—is not within the ordinary meaning of keeping/bearing.
  • New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): Provided the two-step structure: (1) whether the Second Amendment’s plain text covers the conduct; (2) if so, whether the regulation is consistent with historical tradition. The Clerfe court resolved the case primarily at step one, then supplied an alternative step-two analysis.
  • United States v. Rahimi, 602 U.S. 680 (2024): The court used Rahimi to clarify that “relevantly similar” historical analogues suffice, focusing on “why” and “how” a regulation burdens the right, rather than requiring a “historical twin.”
  • Range v. Att'y Gen., 124 F.4th 218 (3d Cir. 2024) (en banc): Cited for the proposition that Clerfe (an adult citizen) is among “the people,” and that handguns are “arms,” narrowing the dispute to whether exporting firearms is covered conduct.
  • Frein v. Pennsylvania State Police, 47 F.4th 247 (3d Cir. 2022): Used to distinguish “infringement” that hinders retaining firearms (Frein involved refusal to return seized guns) from restrictions that prevent exporting guns abroad. The court treated Frein as confirming that the textual inquiry remains tethered to the protected core—retaining/possessing arms—not every restriction tangentially related to firearms.

B. “Ancillary” Second Amendment rights and commercial regulation

  • Luis v. United States, 578 U.S. 5 (2016) (Thomas, J., concurring); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011); Jackson v. City and County of San Francisco, 746 F.3d 953 (9th Cir. 2014); Andrews v. State, 50 Tenn. 165 (1871): The opinion acknowledged the “implied corollary rights” concept (training, ammunition acquisition), but found Clerfe’s reliance on it “tautological” because the challenged laws did not meaningfully restrict keeping/bearing for confrontation; they restricted international export.
  • Oakland Tactical Supply, LLC v. Howell Twp., 103 F.4th 1186 (6th Cir. 2024); B & L Prods., Inc. v. Newsom, 104 F.4th 108 (9th Cir. 2024); United States v. Vereen, 152 F.4th 89 (2d Cir. 2025); Gazzola v. Hochul, 88 F.4th 186 (2d Cir. 2023): These post-Bruen authorities were cited to illustrate emerging tests for ancillary rights (“meaningfully constrain” vs. “necessary to effectuate”). Clerfe did not adopt any new ancillary-rights test; it instead held export trafficking is outside the plain text.
  • United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); Drummond v. Robinson Twp., 9 F.4th 217 (3d Cir. 2021): The court limited prior statements about commercial regulations to circumstances where such regulations functionally end-run the right to possess and carry. Marzzarella and Drummond were treated as consistent with the view that commercial laws matter only when they burden the protected core.

C. Historical practice and foreign affairs

  • United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936): Central to both the historical-tradition analysis (noting longstanding export restrictions) and the non-delegation/foreign-affairs analysis (emphasizing the President’s special discretion in international relations).
  • United States v. La Vengeance, 3 U.S. 297 (1796): Discussed to address the scope of the 1794 export prohibition (commercial merchandise vs. private arms), though the Supreme Court in that case affirmed on jurisdictional grounds. Clerfe treated the case as part of the historical record, not as controlling constitutional doctrine.

D. Non-delegation and separation of powers

  • Mistretta v. United States, 488 U.S. 361 (1989); Federalist No. 51 (James Madison): Cited for separation-of-powers principles and the premise that process and branch cooperation are constitutionally promised.
  • Gundy, 588 U.S. (non-delegation intelligible-principle analysis; including references to Gundy, 588 U.S. at 162-64 (Gorsuch, J., dissenting)): Provided the framework: interpret the statute, identify what is delegated, and assess the guiding principle; also supplied (through the dissent) “guiding principles” the court considered as a belt-and-suspenders alternative.
  • Ramos v. Louisiana, 590 U.S. 83 (2020): Cited for the instruction that lower courts must apply existing Supreme Court doctrine “unless and until” overruled.
  • Lichter v. United States, 334 U.S. 742 (1948); Yakus v. United States, 321 U.S. 414 (1944); Nat'l Broad. Co. v. United States, 319 U.S. 190 (1943): Examples of broad delegations upheld under the intelligible-principle test.
  • A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935): The two canonical cases where the Supreme Court invalidated delegations, used to emphasize how rarely the doctrine has been used to strike statutes.
  • Touby v. United States, 500 U.S. 160 (1991): Used as the closest analogue because executive designations can trigger criminal exposure. Touby also allowed consideration of procedural constraints as relevant to the delegation’s validity.
  • United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011); Regan v. Wald, 468 U.S. 222 (1984) (Blackmun, J., dissenting): Amirnazmi upheld broad IEEPA delegations; Clerfe treated it as binding Third Circuit support for upholding export-control delegations featuring procedural restrictions.
  • United States v. Henry, 888 F.3d 589 (2d Cir. 2018); United States v. Hsu, 364 F.3d 192 (4th Cir. 2004); United States v. Chi Tong Kuok, 671 F.3d 931 (9th Cir. 2012): Cited for the inter-circuit consensus sustaining AECA’s delegation.
  • United States v. Cooper, 750 F.3d 263 (3d Cir. 2014): Cited for the Third Circuit’s prior decision to avoid resolving whether “more than an intelligible principle” is required in the criminal context, following Touby.

3.2. Legal Reasoning

A. Second Amendment: Why the claim failed at Bruen step one

The opinion’s most precedent-setting move is its textual limitation: “keep” means to have/possess/retain arms, and “bear” means to carry them for confrontation. Exporting firearms abroad—particularly through clandestine channels—does the opposite of “keep”: it is a relinquishment of possession and control. By framing the “conduct” with specificity (international shipment/trafficking to Haiti, without export filing/licensing), the court avoided converting the Second Amendment into a generalized right to transact in arms across borders.

The court also rejected Clerfe’s attempt to broaden “infringe” into an independent hook that constitutionalizes any firearm-related hindrance. Using Frein v. Pennsylvania State Police, it drew a line between burdens that hinder someone’s ability to “hold on to his guns” (core retention/possession) and laws that regulate exporting guns abroad (non-core conduct).

B. Second Amendment: Why the government prevailed at Bruen step two (in the alternative)

Even if exportation were covered conduct, the court held the government carried its historical burden by showing a continuous American tradition of restricting arms exports. It relied on founding-era statutes: the 1794 act temporarily prohibiting exporting arms and ammunition, the 1806 suspension of commercial intercourse with parts of St. Domingo (Haiti), and the 1807 embargo broadly halting exports. These historical controls, combined with United States v. Curtiss-Wright Export Corp.’s observation that export controls have been enacted by “nearly every Congress,” supplied the “relevantly similar” tradition demanded by New York State Rifle & Pistol Association, Inc. v. Bruen and refined by United States v. Rahimi.

Clerfe’s attempts to distinguish those analogues (limited duration; commercial scope; different motivations) failed because Rahimi rejects a requirement for historical twins and because at least some founding-era statutes explicitly involved foreign-policy and security judgments—precisely the “why” supporting modern export controls.

C. Non-delegation: AECA’s intelligible principle and the foreign-affairs “thumb on the scale”

The court began, as Gundy instructs, by interpreting what AECA delegates and what it instructs. AECA empowers the President to designate defense articles “[i]n furtherance of world peace and the security and foreign policy of the United States.” Standing alone, that phrase is broad. But the court treated AECA’s additional policy statement—reducing the international trade in implements of war to lessen regional conflict—and the statute’s procedural features (review, notice, reporting) as meaningful guidance and constraint, drawing support from Touby v. United States and the Third Circuit’s own United States v. Amirnazmi.

Critically, the court emphasized that export controls operate at the intersection of legislation and the President’s Article II responsibilities in foreign affairs and national security. Quoting United States v. Curtiss-Wright Export Corp., it recognized that the President is entitled to “a degree of discretion and freedom from statutory restriction” in international relations, which further supports sustaining AECA’s delegation under existing doctrine.

The court also preserved institutional posture: under Ramos v. Louisiana, it applied the intelligible-principle test “unless and until” the Supreme Court changes it, notwithstanding signals in Gundy that some Justices might revisit the doctrine. Even so, the court added that the delegation would survive under the more demanding “guiding principles” described in Gundy, 588 U.S. at 157 (Gorsuch, J., dissenting), because the statute (1) sets policy while the executive fills details and (2) involves matters within executive foreign-affairs competence.

3.3. Impact

  • Clarifies the Second Amendment’s boundary in cross-border contexts: The decision strongly signals that the Third Circuit will not treat international export or trafficking as “keeping and bearing” arms. This has downstream significance for challenges to ITAR/AECA-related prosecutions and other export-information regimes when defendants attempt to constitutionalize overseas arms movement.
  • Provides a ready-made historical record for export-control litigation: By anchoring its alternative holding in specific founding-era statutes and deploying Rahimi’s “why/how” framework, the opinion equips future courts with a structured way to uphold export restrictions even if a plaintiff can plausibly argue textual coverage.
  • Reinforces AECA against non-delegation attacks: Joining United States v. Henry, United States v. Hsu, and United States v. Chi Tong Kuok, the Third Circuit adds weight to the consensus that AECA’s USML designation power is constitutionally permissible. The foreign-affairs framing—leaning on United States v. Curtiss-Wright Export Corp.—may make AECA especially resilient if the Supreme Court tightens non-delegation scrutiny generally.
  • Limits expansion of “ancillary” Second Amendment rights: While not rejecting ancillary rights in principle, the court treated them as tethered to the core confrontation/possession right; exportation is not framed as necessary to effectuate self-defense. This may affect how litigants plead challenges to firearms-related “commercial” or “transactional” regulations post-Bruen.

4. Complex Concepts Simplified

  • “Bruen step one” vs. “Bruen step two”: Step one asks whether the Second Amendment’s text covers the conduct at all (here: exporting guns abroad). If not, the analysis ends. Step two applies only if covered; the government must then show the law fits America’s historical tradition of firearm regulation.
  • “Keep and bear Arms”: As used in the Second Amendment, “keep” is about possessing/retaining arms; “bear” is about carrying them for confrontation. The court treated exporting as the opposite of keeping.
  • ITAR / USML / AECA (how the export-control system works): AECA authorizes the executive to identify “defense articles” on the USML; ITAR supplies regulatory requirements (including export information filing); exporting listed items generally requires licensing, and certain destinations (like Haiti, per the opinion’s cited regulations) face strong presumptions of denial.
  • Non-delegation and the “intelligible principle” test: Congress may delegate implementation power to the executive if it provides a guiding principle (even a broad one). Courts almost always uphold statutes under this test; only two Supreme Court cases have invalidated delegations.
  • Foreign-affairs “extra discretion” idea (Curtiss-Wright): When regulating international relations, courts often recognize that the President has constitutionally grounded responsibilities and informational advantages, so statutes can grant broader discretion than might be acceptable in purely domestic regulation.

5. Conclusion

United States v. Derby Clerfe establishes a clear Third Circuit rule that unlicensed exportation/trafficking of firearms abroad is not conduct protected by the Second Amendment’s text. It further holds, in the alternative, that American history reflects a longstanding tradition of restricting arms exports, satisfying the post-Bruen historical inquiry. On separation of powers, the decision firmly aligns the Third Circuit with every circuit to consider the question in sustaining AECA’s delegation to designate defense articles on the USML, emphasizing both statutory guidance and the special constitutional context of foreign affairs.