In the months since President Donald Trump issued his executive order on the Second Amendment last February that, in part, directed the Department of Justice to look at federal statutes and policies to ensure they comply with the right to keep and bear arms, the DOJ has continued to defend virtually every statute that’s currently being challenged by gun rights supporters.
Until now.
On Thursday the DOJ’s Office of Legal Counsel issued a slip opinion declaring the federal ban on mailing pistols, revolvers, and “other firearms capable of being concealed on the person” unconstitutional “as applied to constitutionally protected firearms, including handguns, because it serves an illegitimate purpose and is inconsistent with the Nation’s tradition of firearm regulation.”
The ban, which has been in place since 1927, has taken on increased importance in recent years as private carriers like FedEx have prohibited average gun owners from using their services to ship firearms. Last year, Gun Owners of American and Gun Owners Foundation filed a lawsuit called Shreve v. United States Postal Service challenging the prohibition, arguing that it does not comport with the national tradition of keeping and bearing arms.
The DOJ now broadly agrees with that stance, with the OLC declaring that Section 1715 of title 18, U.S. Code creates a “substantial burden” on the exercise of our Second Amendment rights.
.An individual cannot mail himself a handgun for core constitutionally protected activity, such as self-defense, target shooting, or hunting. As the examples below illustrate, traveling with a firearm can be difficult, if not impossible, rendering the mail the most effective way to transport an individual’s firearm to his destination:
(1) A Californian vacationing in Vermont flies into New York. The transportation of his handgun through the New York airport, even if that handgun is properly stowed in his luggage, would trigger an arrest for violating New York’s law against possession of an unlicensed handgun. See Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Port Auth. of N.Y. & N.J., 730 F.3d 252, 257 (3d Cir. 2013).
(2) A person driving from Wisconsin to Michigan stops in Chicago for two days. The break in travel would cause him to lose the protection of 18 U.S.C. § 926A, which otherwise protects the interstate transportation of firearms.
(3) A person takes a bus from Washington, D.C., to Philadelphia,Pennsylvania. The bus would generally refuse to accept his firearm as baggage.
This raises the question of whether the DOJ would consider New York’s law unconstitutional, as well as perhaps the specific provision in the Firearms Owner Protection Act that doesn’t provide protection for travelers who stop off for a day or two on their way to their final destination. Perhaps those questions can be addressed in future litigation, but for the moment the important part of the OLC’s opinion is that the federal government should no longer defend the ban on shipping constitutionally protected arms through the mail.
First, laws infringe Second Amendment rights if they serve the illegitimate purpose of suppressing the right, regulating the right more broadly than needed for a legitimate purpose, or effectively destroying the right. Here, section 1715 serves an illegitimate purpose. The text of the law aims to suppress traffic in constitutionally protected articles: “Pistols, revolvers, and other firearms capable of being concealed on the person are non-mailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service.” 18 U.S.C. § 1715. On its face, then, the statute evinces an attempt to reduce the proliferation of concealable firearms. The law’s design singles out for disfavored treatment pistols and revolvers, “the most popular weapon chosen by Americans for self-defense.” And it operates as a practical bar on private citizens’ ability to transport and receive in the mail constitutionally protected weapons. Such a purpose—to frustrate protected arms’ transportability, thereby making it more difficult for citizens to obtain such weapons—constitutes a per se infringement upon the Second Amendment.
The OLC adds that there are no appropriate historical analogues to the post office’s ban on mailing firearms either, but cautions that there are some instances where § 1715 can be enforced without violating the Second Amendment; namely, by prohibiting the mailing of concealable firearms that aren’t protected by the Second Amendment like “undetectable firearms or concealable gadget-type guns designed primarily for assassination.”
We similarly do not conclude that the Second Amendment creates a positive entitlement to have the government deliver firearms on behalf of customers. Although the Constitution authorizes a postal service,U.S. Const. art. I, § 8, cl. 7, nothing in the Constitution affirmatively requires the government to maintain a postal service or to carry parcels. But Congress, having chosen to maintain a postal service that carries parcels (including handguns for some customers), cannot then discriminate against the carriage of constitutionally protected arms on behalf of private citizens.
The OLC also believes that a ban on mailing ammunition and powder does not violate the Second Amendment, since (in its view) it serves a legitimate purpose of preventing injury postal employees and property.
Most importantly, the opinion declares that the Attorney General “may not, consistent with theConstitution, enforce section 1715 with respect to constitutionally protected firearms, and the Postal Service should modify its regulations to conform with the scope of the Second Amendment as described in this opinion.”
This is, in my opinion, as noteworthy as the DOJ’s Office of Civil Rights taking on gun control laws in places like California and the U.S. Virgin Islands, as well as supporting plaintiffs in other challenges to state-level laws. At the very least it demonstrates that the DOJ can find existing federal law to be in violation of our Second Amendment rights. Whether or not the DOJ will do so beyond this particular statute remains to be seen, but I’d love to see what the Office of Judicial Counsel thinks about the constitutionality of the NFA’s registration requirements, especially on those taxes that have now been zeroed out by the One Big Beautiful Bill Act.
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