The DOJ Says It Will Challenge Unconstitutional Gun Policies. Maybe It Should Stop Defending Them.
The Justice Department's litigation positions are at odds with its avowed intent to protect Second Amendment rights.
The Justice Department recently established a "Second Amendment Section" within its Civil Rights Division. On its face, that move is a welcome development for defenders of the constitutional right to armed self-defense—an impression reinforced by the alarm the new initiative has generated among gun control advocates. But the section's mission statement raises doubts about its commitment to Second Amendment advocacy. So does the Justice Department's ongoing defense of constitutionally dubious federal gun laws.
"I'm really excited about this," Harmeet Dhillon, the assistant attorney general in charge of the Civil Rights Division, told Fox News. "For the first time, the DOJ Civil Rights Division and the DOJ at large will be protecting and advancing our citizens' right to bear arms as part of our civil rights work….As Attorney General Pam Bondi has said, the Second Amendment is not a second-class right, and I couldn't agree more with my boss."
Dhillon said the Justice Department will challenge obstacles to obtaining concealed carry permits such as "multi-thousand-dollar costs" and "unreasonably long delays." Another potential target, she said, is state bans on "guns that should be protected by the Second Amendment" under "recent Supreme Court precedent," by which she presumably meant "assault weapon" bans. In a recent Supreme Court brief, the government's lawyers suggested that "cases involving state laws banning AR-15 rifles" provide good "vehicles for clarifying the appropriate framework for discerning what types of arms the Second Amendment protects."
So far, so good. But the Justice Department's description of the Second Amendment Section's agenda should give pause to anyone familiar with the litigation inspired by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which clarified the Second Amendment test for gun control laws and cast doubt on the constitutionality of many longstanding firearm restrictions.
The Second Amendment Section aims to protect "the natural firearm rights of law-abiding American citizens and ensure that such rights to keep and bear arms will not be infringed," the Justice Department says. "The mission of the 2nd Amendment Section is to ensure that law-abiding American citizens may responsibly possess, carry, and use firearms."
That "law-abiding" qualifier does not appear in the text of the Second Amendment. Nor is it "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test established by Bruen. And taken literally, it excludes millions of peaceful Americans from exercising "the right of the people to keep and bear arms," which is in fact the upshot of policies that the Trump administration defends.
In the landmark Second Amendment case District of Columbia v. Heller, the Supreme Court did refer to "law-abiding citizens." It said the amendment "does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." And it upheld "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." But the Court also recognized that the phrase "the people," which appears in the First, Fourth, Ninth, and 10th amendments as well as the Second, "unambiguously refers to all members of the political community, not an unspecified subset." According to Heller, that language creates a "strong presumption" that the right to arms "belongs to all Americans."
In the 2023 case Range v. Attorney General, the U.S. Court of Appeals for the 3rd Circuit unambiguously rejected the proposition that the Second Amendment applies only to "law-abiding" citizens. "We are confident that the Supreme Court's references to 'law-abiding, responsible citizens' do not mean that every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment," Judge Thomas M. Hardiman wrote in the majority opinion.
What about more serious offenses, such as felonies? The problem with that reading, Hardiman said, is that it empowers the government to strip individuals of their constitutional rights based on how legislators decide to classify an offense. "At root, the Government's claim that only 'law-abiding, responsible citizens' are protected by the Second Amendment devolves authority to legislators to decide whom to exclude from 'the people,'" Hardiman noted. "We reject that approach because such 'extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.'"
The law at issue in that case was 18 USC 922(g)(1), which makes it a felony for anyone convicted of "a crime punishable by imprisonment for a term exceeding one year" to receive or possess a firearm. That provision, the 3rd Circuit ruled, was unconstitutional as applied to Bryan Range, a Pennsylvania man who lost his gun rights because he had pleaded guilty nearly three decades earlier to fraudulently obtaining $2,458 in food stamps by understating his income.
Range's offense was a misdemeanor under Pennsylvania law, and his sentence was limited to restitution, a $100 fine, $288 in court costs, and three years of probation. But because his crime was notionally punishable by up to five years in prison, his conviction triggered Section 922(g)(1), which encompasses state misdemeanors punishable by more than two years of incarceration.
"The Government has not shown that the Nation's historical tradition of firearms regulation supports depriving Range of his Second Amendment right to possess a firearm," Hardiman wrote. "Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, [it] cannot constitutionally strip him of his Second Amendment rights."
As I explain in my new book Beyond Control, the law that deprived Range of his gun rights covers an absurdly broad spectrum of offenses, disarming millions of people with no history of violence. It does not matter what the offense entailed, how long ago it was committed, or what sentence was actually imposed. Section 922(g)(1) empowers Congress and state legislators to restrict the Second Amendment simply by authorizing maximum sentences that meet the provision's criteria, even if those penalties are rarely or never imposed in practice.
Since Bruen, at least seven federal appeals courts have ruled that Section 922(g)(1) is constitutional in all of its applications. But at least three—the 5th, 6th, and 7th circuits—have joined the 3rd Circuit in holding that Section 922(g)(1) may be unconstitutional as applied to people with nonviolent criminal records.
The Justice Department repeatedly defended that law against such challenges during the Biden administration. It continues to do so under the Trump administration, notwithstanding the president's avowed commitment to the Second Amendment and his personal experience with this law, which bars him from possessing firearms because he was convicted of state felonies involving falsification of business records.
Consider the government's response to a Supreme Court petition from Melynda Vincent, a Utah social worker who is barred from possessing firearms under Section 922(g)(1) because she was convicted of passing a bad check at a grocery store 17 years ago. Vincent is asking the Court to resolve the circuit split on this issue, arguing that the law is unconstitutional as applied to her because "our historical tradition of firearms regulation does not permit the federal government to permanently disarm someone based solely on the fact of a prior nonviolent criminal conviction." That is especially true, her lawyers say, when "no evidence suggests that the person poses, or has ever posed, a threat to anyone else."
In opposition to Vincent's petition, Solicitor General D. John Sauer argues that she "cannot prevail on her Second Amendment challenge" because the Justice Department has revived a previously moribund process for restoring the gun rights of people whom the attorney general determines are not "likely to act in a manner dangerous to public safety." But that process is entirely discretionary. If disarming someone like Vincent fails the Bruen test, it is no answer to say she can beg for the restoration of constitutional rights she should not have lost to begin with.
"At least as a general matter," Sauer says, "Section 922(g)(1)'s disarmament of convicted felons complies with the Second Amendment." In Heller, he notes, the Supreme Court described "longstanding prohibitions on the possession of firearms by felons" as "presumptively lawful," and it quoted that language in subsequent decisions. But none of those cases directly addressed Section 922(g)(1), and describing certain restrictions as "presumptively lawful" suggests that presumption might be overcome in some circumstances. The Court in Heller explicitly did not delve into the reasoning for that label, saying "there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."
Sauer also trots out the familiar argument that "death was 'the standard penalty for all serious crimes' at the founding," which he thinks means the lesser penalty of losing one's gun rights must be constitutional. But as Justice Amy Coney Barrett noted in a 2019 dissent as an appeals court judge, "the obvious point that the dead enjoy no rights does not tell us what the founding-era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society."
It surely would be odd to argue, based on that "obvious point," that people with felony records should automatically lose, say, the right to freedom of speech or the right to be free from unreasonable searches and seizures. Although Dhillon declares that "the Second Amendment is not a second-class right," the government's position in this case seems to treat it that way.
That position puts the Trump administration at odds with the National Rifle Association (NRA), the Firearms Policy Coalition, and the Second Amendment Foundation. Under Bruen, those groups argue in a brief supporting Vincent's petition, "all firearm regulations must be justified by historical tradition, including the regulations that Heller labeled 'presumptively lawful.'"
Delving into the historical evidence, the NRA et al. conclude that "there is no tradition of disarming peaceable citizens." Historically, they say, "nonviolent criminals—including nonviolent felons—who did not demonstrate a propensity for violence retained the ability to exercise their right to keep and bear arms." In fact, "some laws expressly allowed or even required them to keep and bear arms" for militia service.
The Trump administration's position in United States v. Hemani further illustrates its determination to restrict Second Amendment rights. That case, which the Supreme Court will hear this term, involves 18 USC 922(g)(3), which prohibits gun possession by any "unlawful user" of a "controlled substance." Like Section 922(g)(1), that provision disarms millions of Americans who pose no plausible threat to public safety, including cannabis consumers who live in states that have legalized marijuana for medical or recreational use. And as with Section 922(g)(1), the Trump administration echoes the Biden administration in arguing that the law is perfectly constitutional.
In the 2024 case United States v. Connelly, the U.S. Court of Appeals for the 5th Circuit found "no historical justification for disarming a sober citizen not presently under an impairing influence." This year in United States v. Cooper, the U.S. Court of Appeals for the 8th Circuit agreed that specific prosecutions under Section 922(g)(3) may violate the Second Amendment. It concluded that "nothing in our tradition allows disarmament simply because [someone] belongs to a category of people, drug users, that Congress has categorically deemed dangerous."
The 5th Circuit and the 8th Circuit are wrong, Sauer argues in Hemani. In making that case, he repeatedly states that Section 922(g)(3) "disqualif[ies] only habitual users of illegal drugs from possessing firearms," which is not true. The ban applies to all consumers of federally prohibited drugs, no matter their pattern of use and regardless of whether they ever handle guns while intoxicated. It is analogous to a categorical ban on gun possession by alcohol consumers—a point that Sauer obscures by equating all "unlawful" drug consumers with "habitual drunkards."
Sauer implausibly argues that all drug users, including occasional cannabis consumers and patients who use marijuana for symptom relief in compliance with state law, pose a danger to public safety that justifies disarming them. And even if there might be "marginal cases" where that is not true, he says, they can be addressed by seeking relief from the attorney general—the same unsatisfactory solution he offers for people with nonviolent criminal records.
The Firearms Policy Coalition (FPC) welcomed the Justice Department's Second Amendment Section as "a major step toward properly recognizing the Second Amendment as protecting a real right that warrants the same institutional protection as all other enumerated rights." But it also noted that "the DOJ continues—at this moment—to advance harmful and anti-originalist arguments in multiple ongoing cases, including efforts that would narrow or even reverse major Second Amendment victories protecting millions of peaceable Americans."
In addition to the Justice Department's defense of Section 922(g)(3), the FPC cited the government's position in cases involving the ban on guns in post offices and the National Firearms Act's registration requirements. The organization urged the Trump administration to "immediately halt these contradictory litigation positions and begin supporting—rather than opposing—strong constitutional litigation that advances the very rights this new DOJ section is intended to protect."
It is encouraging that the Justice Department plans to challenge policies and practices that infringe on the right to arms. But if it were serious about defending the Second Amendment, it would stop defending unjust, historically ungrounded laws that disarm Americans for no good reason.
