The Department of Justice is taking some historic steps to defend our Second Amendment rights, including suing the Los Angeles County Sheriff’s Department over delays in issuing concealed carry permits and filing amicus briefs in support of challenges to state-level gun control laws.
At the same time, though, the DOJ has continued to defend existing federal gun laws. It’s declared the National Firearms Act’s $200 tax and registration requirements impose only a “modest burden” on the right to keep and bear arms, has fought to minimize a Fifth Circuit decision declaring 18-to-20-year-olds have the right to purchase handguns at retail, and has sought the names of members of groups like FPC and SAF as part of injunctive relief in a challenge to the federal ban on concealed carry on U.S. Postal System property.
Now the Firearms Policy Coalition is urging President Donald Trump to “take immediate action to restore the integrity of his pledge to protect Second Amendment rights.”
Since President Donald J. Trump signed the “Protecting Second Amendment Rights” executive order in February, his Department of Justice has done exactly the opposite—relentlessly defending the federal government’s unconstitutional gun control regime. Instead of using the Justice Department’s vast power to secure Americans’ right to keep and bear arms, the Trump DOJ has used it to fight against the People—even taking extreme positions in court to resist injunctions that block the government’s enforcement of gun laws that federal judges have already found unconstitutional.
Last month, the Administration’s Solicitor General, D. John Sauer—the government’s top appellate lawyer, often called the “10th Justice” for his influence with the Supreme Court—urged the Court to deny review in a case challenging the National Firearms Act’s (NFA) registration and taxation scheme for short-barreled rifles. The Administration argued that the NFA’s intrusive requirements are “consistent with this Nation’s historical tradition of firearm regulation,” effectively endorsing the very federal overreach the Second Amendment was written to prevent.
In an effort to convince the Court to dodge the question of unconstitutional federal restrictions, the Trump DOJ suggested that the Court should focus on “laws banning AR-15 rifles.” Yet, when the opportunity arose for the Administration to support exactly such a case—a challenge to an AR-15 rifle ban out of Illinois—the Trump DOJ was silent.
It’s true that the DOJ hasn’t taken a position on FPC-supported challenge to Cook County’s ban on so-called assault weapons, but DOJ Civil Rights Division chief Harmeet Dhillon has weighed in and objected to the state-level ban imposed by the Protect Illinois Communities Act. In fact, Dhillon participated in oral arguments at the Seventh Circuit earlier this year.
Still, the Viramontes case out of Cook County is currently pending review by the Supreme Court in conference, and there’s no reason why DOJ couldn’t submit an amicus brief in support of the plaintiffs in that lawsuit as well.
FPC goes on to argue that ,”[r]ather than support good Supreme Court vehicles, the Trump DOJ has chosen to game the system and throw its weight behind bad cases likely to strengthen the government’s power and weaken individual liberty, such as United States v. Hemani, which the Supreme Court recently agreed to hear.”
The Trump DOJ’s continuing adversarial posture to the Second Amendment doesn’t end there. In United States v. George Peterson—an FPC-supported Fifth Circuit criminal appeal that challenges the NFA’s unconstitutional registration and taxation of firearm suppressors—the Trump DOJ opposed a petition for rehearing en banc, doubling down on its defense of oppressive federal gun laws.
The Trump DOJ’s sustained pattern of anti-Second Amendment litigation cannot be dismissed as bureaucratic inertia—it reflects deliberate choices.
FPC calls on President Trump to immediately direct his Department of Justice to end its defense of federal gun control laws and to begin using the full power of the executive branch to actively protect and advance the Second Amendment rights of the American people.
Dhillon has previously argued that there are no circuit court splits on the constitutionality of the National Firearms Act, and that the federal courts are unlikely to side with the plaintiffs in these challenges. Of course, there’s no split on “assault weapon” bans either, at least at the moment, but that didn’t stop her from siding with the plaintiffs in challenging Illinois’ ban on commonly owned semi-automatic long guns and “large capacity” magazines.
Sauer has also tried to distinguish the DOJ’s position that the NFA imposes only a modest burden on the Second Amendment from a hypothetical $200 tax on, say, handguns, but in doing so has essentially argued that some arms enjoy more Second Amendment protections than others; a position that runs contrary to everything the Supreme Court has said about our right to keep and bear arms, and a position that invites courts to adopt an interest balancing test for the constitutionality of bans on firearms, magazines, suppressors, and other 2A-protected items.
Perhaps most troublingly, Sauer has adopted the position that the Supreme Court need not consider the constitutionality of laws like Section 922(g)(1), which prohibit gun possession by anyone convicted of a crime punishable by more than one year in prison. Sauer maintains that a potential DOJ rule allowing prohibited persons to apply to the Attorney General to have their rights restored means that the underlying statute should remain in place. That, however, completely ignores the question about whether the statute is valid in the first place; either facially or as it applies to individual defendents.
It’s one thing to argue that someone like Melynda Vincent, who lost her Second Amendment rights after writing a bad check nearly 20 years ago, should apply to the DOJ for relief instead of taking her case to court. But that still doesn’t address whether someone like Vincent should automatically forfeit their right to keep and bear arms because of a non-violent offense punishable by more than a year in prison, even if they’re only sentenced to probation.
And despite Sauer’s claim that Vincent can apply to the Attorney General for relief, that proposed rule is not yet in place, which leaves her and others in limbo. That rule could also be undone by future administrations, so it is important for the Supreme Court to address these issues now despite Sauer’s objections.
Will FPC’s request fall on deaf ears, or will we see the White House prod DOJ, Attorney General Pam Bondi, and Solicitor General D. John Sauer to stop defending some or all of these federal statutes? I confess that I’m not optimistic much will change as a result of the FPC’s demand, but that doesn’t mean the group is wrong to call DOJ’s positions in these cases to the president’s attention.
Editor’s Note: After more than 40 days of screwing Americans, a few Dems have finally caved. The Schumer Shutdown was never about principle—just inflicting pain for political points.
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