A man walks into a sporting goods store in Monroeville and buys a handgun. Perfectly legal. He comes back and buys another. Still legal. Over about ten weeks he buys nine 9mm pistols in all — and every one of those purchases, standing alone, was something he had a constitutional right to make.
Then he arranged to ship them to Haiti.
That is the case the Third Circuit decided on August 10, 2026, in United States v. Clerfe, No. 24-2116 (3d Cir. 2026). The question it answers is: does the Second Amendment have anything to say about laws that stop you from sending your guns abroad? Judge Porter, writing for a unanimous panel that also included Chief Judge Chagares and Judge Roth, held that it does not — and that even if it did, the laws would survive anyway.
What Derby Clerfe Did
Between December 2017 and February 2018, Derby Clerfe bought nine 9mm handguns from a store in Monroeville. Federal authorities noticed the pattern and came to his home in March 2018 to talk to him.
Clerfe did not deny much. He told the agents he had already arranged to get the guns to Haiti through an out-of-state resident who had a “connect” with a shipping company. He said that as far as he knew the guns had not been declared, and he suggested they may have been hidden inside barrels. He had recently traveled to Haiti himself, and told the agents the guns had not arrived before he came home.
He was charged with one count of conspiring to commit an offense against the United States under 18 U.S.C. § 371, plus two counts of transferring firearms to an unlicensed out-of-state resident under 18 U.S.C. § 922(a)(5). Because a conspiracy charge under § 371 requires the government to identify the underlying federal offense the defendant agreed to commit, the District Court granted Clerfe’s request for a bill of particulars — a filing that forces the government to spell out the specifics behind a charge. The government responded with a list of federal laws that make smuggling guns into Haiti illegal.
Clerfe then moved to dismiss the indictment on Second Amendment, non-delegation, and vagueness grounds. Judge Stickman denied the motion. Clerfe pleaded guilty to the conspiracy count while reserving his right to appeal the denial — what’s called a conditional plea. The Second Amendment and non-delegation issues came up on appeal.
The Regulatory Maze Behind the Charge
Part of what makes this case worth reading is the machinery the court had to lay out before it could get to the constitutional questions. There is no single statute that says “don’t smuggle guns to Haiti.” There are four overlapping layers.
Layer one: the export information requirement. It is a federal crime to knowingly fail to file an export information sheet when you send goods out of the country. 13 U.S.C. § 305(a)(1). Some exports are exempt from that filing requirement — but not exports covered by the International Traffic in Arms Regulations, known as ITAR.
Layer two: what ITAR covers. ITAR reaches anything on the United States Munitions List, a catalog of items the President has designated as “defense articles” under the Arms Export Control Act, or AECA. 22 U.S.C. § 2778(a)(1). At the time Clerfe bought his guns, ordinary semi-automatic handguns were on that list. ITAR then separately requires exporters of defense articles to file certain export information with Customs and Border Protection. 22 C.F.R. § 123.22.
Layer three: the license requirement. The AECA makes it unlawful to export a designated defense article without a license. 22 U.S.C. § 2778(b)(2). And Haiti has long been subject to an arms embargo, under which it is the stated policy of the United States to deny license applications for defense articles altogether. 22 C.F.R. § 126.1.
Layer four: the smuggling statute. It is a separate crime to export goods “contrary to any law or regulation of the United States.” 18 U.S.C. § 554(a).
One detail deserves attention because it changes the analysis for anyone facing similar conduct today. In a footnote, the court observed that nonautomatic and semi-automatic firearms were removed from the Munitions List in 2020. See 85 Fed. Reg. 3819 (Jan. 23, 2020) (effective Mar. 9, 2020). The handguns in Clerfe were defense articles when he bought them.
Why “Keeping” Arms Doesn’t Include Giving Them Away
Under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), Second Amendment analysis runs in two steps. First, does the Amendment’s plain text cover the conduct at issue? If it does, the conduct is presumptively protected. Second, if it does, the government must show the challenged law is consistent with the nation’s historical tradition of firearm regulation. United States v. Rahimi, 602 U.S. 680 (2024), added that the historical comparison asks about the “principles that underpin our regulatory tradition” — the law does not need a “dead ringer” or a “historical twin,” but it has to be “relevantly similar” in why and how it burdens the right.
Nobody disputed the easy parts. Clerfe is an adult citizen and therefore part of “the people.” Range v. Att’y Gen., 124 F.4th 218, 228 (3d Cir. 2024) (en banc). Handguns are “arms.” The fight was over whether shipping guns to Haiti is covered by the words “keep and bear Arms.”
The court’s answer turned on founding-era dictionaries. Heller had already concluded that the most natural reading of “keep Arms” is “have weapons.” 554 U.S. 570, 582–83 (2008). The panel worked from there. Samuel Johnson’s 1773 dictionary defines “keep” as to retain, not to lose, to have in custody, to preserve, not to let go. Noah Webster’s 1828 dictionary defines it as to hold, to retain in one’s power or possession, not to lose or part with.
Then the sentence that carries the holding: Clerfe’s conduct — exporting arms — involved dispossessing himself of firearms. Reading “keep Arms” to include “giving away Arms” would run against the ordinary meaning of the words.
Clerfe had a fallback. The Second Amendment forbids “infringe[ments],” he argued, and even the smallest hindrance to the right is an infringement. He pointed to cases recognizing that the right to keep and bear arms implies certain related rights — the right to train, Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011); the right to acquire ammunition, Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014); and going further back, Andrews v. State, 50 Tenn. 165 (1871), which recognized a right to purchase arms and keep them in repair.
The court agreed with those authorities and still rejected the argument, calling it tautological: Clerfe’s right to keep arms was not infringed for the same reason that exporting arms is not protected by the right to keep arms in the first place.
The panel found support in its own decision in Frein v. Pennsylvania State Police, 47 F.4th 247 (3d Cir. 2022), where police refused to return firearms seized as evidence even after the criminal case ended. Frein held that the Second Amendment forbids not just destroying the right but “lesser violations” that hinder “a person’s ability to hold on to his guns.” Export laws, the panel said, do not limit Clerfe’s ability to hold on to his guns. They limit his ability to send them abroad.
Finally, Clerfe leaned on United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and Drummond v. Robinson Township, 9 F.4th 217 (3d Cir. 2021), for the point that commercial regulations of firearms are not categorically outside the Second Amendment. True, the court said — but the lesson of those cases is that it matters whether a commercial regulation actually impinges on the right to possess and carry weapons for confrontation. A commercial regulation cannot be used to end-run that right. Where it does nothing to burden that right, the Amendment is not implicated.
The Alternative Holding: A Founding-Era Tradition of Export Controls
The court did not stop at step one. Assuming the Second Amendment covered Clerfe’s conduct, it held the export laws are consistent with the nation’s historical tradition anyway — and the history section is the most quotable part of the opinion.
In 1794, three years after the Second Amendment was ratified, the Third Congress passed “An Act prohibiting for a limited time the Exportation of Arms and Ammunition, and encouraging the Importation of the same.” Act of May 22, 1794, 1 Stat. 369. It made it unlawful to export cannon, muskets, pistols, bayonets, swords, cutlasses, musket balls, lead, bombs, grenades, and gunpowder. In 1806, Congress suspended commercial intercourse with “certain parts of the island of St. Domingo” — modern-day Haiti. In 1807, it passed the Embargo Act, barring the export of all goods, firearms included.
The panel then listed who was in those Congresses: John Adams, Oliver Ellsworth, Rufus King, Albert Gallatin, Robert Morris, James Monroe, Joseph Story, Jonathan Trumbull, James Madison, Henry Clay, John Quincy Adams — “and others who knew a thing or two about the Constitution.”
Clerfe pushed back on the analogy. The 1794 law, he said, was aimed at building up domestic gun stocks, not at foreign policy; it lasted only a year; and it applied only to goods already in the stream of commerce. The court answered each. On motive, it pointed to an August 1794 letter from Alexander Hamilton to Robert Purviance showing Hamilton’s concern about arms leaking to foreign nations despite the Act. On duration and scope, it pointed to the 1807 Embargo Act, and to Rahimi‘s instruction that the government need not produce a historical twin.
The closest analogue came from a law Clerfe himself cited. A 1795 statute authorized the export of arms and military stores “in cases connected with the security of the commercial interest of the United States, and for public purposes,” subject to Presidential approval. The panel called that an “uncanny resemblance” to the AECA, which conditions the export of defense articles on compliance with federal regulations.
The Non-Delegation Challenge — and Why It Failed Twice
Clerfe’s second argument was structural. The AECA lets the President decide which items count as “defense articles” on the Munitions List. Because that designation is what made his conduct criminal, he argued, Congress had handed legislative power to the executive in violation of the separation of powers.
Here is the doctrine in plain terms. Congress makes law; the executive enforces it. The non-delegation doctrine polices that line. But under current law the line is drawn generously: Congress may delegate authority to the executive so long as it supplies an “intelligible principle” to guide how that authority is used. The panel was candid about how low that bar sits. Courts have upheld delegations to fix “fair and equitable” commodity prices, to recover “excessive profits” on military contracts, and to regulate broadcasting in the “public interest.” The Supreme Court has struck down a statute on non-delegation grounds exactly twice, both in 1935.
Following Gundy v. United States, 588 U.S. 128 (2019), the court began with statutory interpretation, because what Congress actually delegated often answers the constitutional question. The AECA authorizes the President to designate defense articles “[i]n furtherance of world peace and the security and foreign policy of the United States.” 22 U.S.C. § 2778(a)(1). Clerfe called that too broad and amorphous. But the court read it alongside the statute’s declaration of policy in § 2751 — that the United States will exert leadership to reduce the international trade in implements of war and lessen the danger of regional conflict — and alongside the AECA’s procedural requirements: 30 days’ notice before removing an item from the list, periodic review of whether listed items still warrant controls, and reporting obligations.
That structure tracked Touby v. United States, 500 U.S. 160 (1991), which upheld the Attorney General’s power to temporarily schedule a controlled substance — another delegation that turns lawful conduct into a crime. And it tracked the Third Circuit’s own decision in United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011), upholding what the panel described as an arguably more sweeping delegation under the International Emergency Economic Powers Act. Every circuit to consider § 2778(a)(1) has upheld it. The Third Circuit joined that consensus.
Clerfe had a second, more ambitious argument: that non-delegation should require more than an intelligible principle when the delegated power carries criminal consequences. The Supreme Court expressly declined to decide that question in Touby, and the Third Circuit has declined twice before. It declined again here.
But the panel then did something notable: it analyzed the case under the heightened standard anyway, using the three principles Justice Gorsuch laid out in his Gundy dissent. Congress may let another branch “fill up the details” once Congress makes the policy decisions; it may make the application of a rule depend on executive fact-finding; and wide discretion raises no separation-of-powers problem where the discretion concerns matters already within executive power. The AECA cleared all three. Deciding which arms go on a list, in service of a policy Congress set, is filling up details. And determining what arms to control in furtherance of foreign policy sits squarely within the President’s own constitutional authority over foreign affairs — an area where, under United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the President’s power does not rest on delegation alone.