The Justice Department has issued its reply briefs to two Second Amendment-related cases the Supreme Court will soon consider in conference, and in both filings the Solicitor General is urging the Court to keep the federal gun control laws at issue in place.
West Virginia Citizens Defense League v. ATF is one of two cases coming out of the Fourth Circuit Court of Appeals challenging the federal ban on handgun sales to adults younger than 21. A couple of weeks ago Solicitor General D. John Sauer asked the justices to decline to hear McCoy v ATF, arguing that the case is likely to become moot because the plaintiffs will have aged out by the time SCOTUS issues its decision. Sauer also claimed that the Hemani case (which deals with the federal prohibition on unlawful users of drugs possessing firearms) could “provide valuable guidanceabout the proper resolution,” and that other cases like WVCDL v. ATF don’t face the same issue of mootness.
In his reply to WVCDL v. ATF, though, which was filed on Monday, Sauer once again argued that SCOTUS should hold off addressing whether adults under the age of 21 have the right to purchase a handgun at retail.
The Court recently granted petitions for writs of certiorari in Wolford v. Lopez, No. 24-1046 (Oct.3, 2025), and United States v. Hemani, No. 24-1234(Oct. 20, 2025)—Second Amendment cases that could shed light on the proper resolution of this case and leadt o the resolution of the circuit conflict. This Court should accordingly hold the petition pending the resolution of those cases.
Sauer doesn’t argue that the law itself is constitutional, but he is arguing to allow it to continue to be enforced for several more years. If SCOTUS grants his requests and holds the petition pending the resolution of Hemani and Wolford, the most likely outcome is that the justices would grant cert, vacate the Fourth Circuit’s decisions, and send McCoy and WVCDL back to the lower courts for further review in light of the Court’s opinion in Hemani and Wolford.
The Supreme Court, however, is also set to consider NRA v. Glass in conference soon; a lawsuit challenging Florida’s ban on all commercial firearm sales to adults under the age of 21. If SCOTUS grants cert in that case, it can still decide the issue at hand in McCoy and WVCDL, while leaving those cases on hold for the time being.
Sauer also filed a reply brief this week in Robinson v. U.S.; a challenge to the National Firearms Act restrictions on short-barreled rifles. The Second Amendment Foundation, Gun Owners of America, California Rifle & Pistol Association, Minnesota Gun Owners Caucus, Second Amendment Law Center, Gun Owners of California, Tennessee Firearms Association, Coalition of New Jersey Firearm Owners, Virginia Citizens Defense League, America’s Future, U.S. Constitutional Rights Legal Defense Fund, and Conservative Legal Defense and Education Fund have all joined amicus briefs urging the Court to grant cert and side with the plaintiff’s assertion that the NFA’s tax and registration requirements violate the Second Amendment.
Sauer, however, has declared that the NFA, including its $200 tax and registration requirements, are perfectly legal constructs. Further, the Solicitor General says challenges to restrictions on short-barreled rifles are foreclosed by the Miller case from the 1930s.
As the court of appeals observed, petitioner does not meaningfully distinguish the short-barreled rifle here from the short-barreled shotguns in Miller. Petitioner argues that Miller’s analysis is outdated because such weapons are in common use today, but he cites no evidence establishing any material change in the use of short-barreled rifles or short-barreled shotguns since this Court decided Miller or since it reaffirmed that decision in Heller.
Third, even apart from Miller, requiring the registration and taxation of short-barreled rifles is “consistent with this Nation’s historical tradition of firearm regulation.” American legislatures have long imposed special taxes on arms that are especially susceptible to criminal misuse. For instance, many 19th-century legislatures taxed weapons such as dueling pistols, sword canes, Bowie knives, Arkansas toothpicks, and dirks. Similarly, many States have long regulated the size of firearms. For example, many States banned or taxed pocket pistols. Those regulations applied to “pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed.”
That last argument from Sauer can be pretty easily dismissed. No matter what some 19th century courts said about “pocket pistols,” the Supreme Court has made it abundantly clear that handguns are, in fact, borne as “arms” and are protected by the Second Amendment.
Despite Sauer’s contention that “many” 19th-century legislatures imposed special taxes on Bowie knives, the authors of the law review article he cites actually say that “Sales were banned in a few states, and possession was punitively taxed in a few others,” adding that “[t]he mainstream approach, adopted in most statesthat regulated Bowies, was to ban concealed carry, to forbid sales to minors, or toimpose extra punishment for criminal misuse. As Part V explains, Bowie knife laws usually applied to various other weapons too.”
The DOJ is doing important work to protect our Second Amendment rights, especially from infringement at the state and local level, but these briefs are unfortunately more examples of the DOJ actively and passively defending federal gun control laws. The DOJ even declined to appeal a decision from the Fifth Circuit that held 18-to-20-year-olds do have the right to purchase handguns at retail, but continues to urge SCOTUS to move at a glacial pace in taking up the issue and providing relief to those young adults who are being deprived of their right to purchase the most common arm for self-defense.
There is no need for the Court to decide cases dealing with the “vampire rule” for concealed carry and whether unlawful drug users can possess firearms before determining whether a 20-year-old has the right ot purchase a handgun at retail, and its frustrating to see Sauer try to kick that can down the road for a few years, especially when there may very well be an administration more hostile to the Second Amendment in place by then.
On the NFA, Sauer is right that there’s not currently a circuit court split on the law’s constitutionality, but that still doesn’t mean the DOJ has to defend the law or its taxation and registration provisions. Florida Attorney General James Uthmeier, for example, is refusing to defend Florida’s ban on gun sales to under-21s because he doesn’t believe its constitutionally sound, and there’s nothing stopping the DOJ from taking a similar approach to NFA challenges… other than an apparent belief that a $200 tax and a registration requirement don’t violate our Second Amendment rights.
Editor’s Note: The Schumer Shutdown is here. Rather than put the American people first, Chuck Schumer and the radical Democrats forced a government shutdown for healthcare for illegals. They own this.
Help us continue to report the truth about the Schumer Shutdown. Use promo code POTUS47 to get 74% off your VIP membership.
Read the full article here
