Trump’s Latest Executive Order on Firearms

This guest post does not necessarily represent the views of the Duke Center for Firearms Law. 

President Trump’s February 7 executive order on the Second Amendment is a continuation of his strange relationship with guns.

For starters, it’s illegal for him to own any. Because he’s a convicted felon, he is barred under federal law from possessing firearms or ammunition. It is unclear whether the president has surrendered all of his firearms and ammunition. He has also been the target of multiple assassination attempts, including one conducted in Pennsylvania by a 20-year-old shooter just months after the Third Circuit strengthened the right to keep and bear arms for persons under twenty-one years old.

Before entering politics, Trump professed support for banning so-called assault weapons. And during his first term, he banned bump stocks after the Las Vegas massacre. But more recently, he told his supporters on the campaign trail that people “have to get over it” in response to a deadly school shooting in Iowa and bragged that he “did nothing” about guns while in office.

The latest executive order signals a strong anti-regulatory push. In the order, President Trump directed the Attorney General to review reports and documents from the White House Office of Gun Violence Prevention, rules promulgated by the Department of Justice pertaining to firearms, and agency classifications of firearms and ammunition, among other federal actions. These reviews are to be conducted with the goal of protecting Americans’ Second Amendment rights. Importantly, the president has also directed the Attorney General to review every position taken by the federal government in “all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights[.]”

This may mean that the federal government will stop defending certain firearm regulations in court. But what does that portend for the Second Amendment’s novel history and tradition test that the Supreme Court adopted in New York State Rifle & Pistol Association and refined in United States v. Rahimi?

Under Bruen and Rahimi, modern firearm regulations that burden the right to keep and bear arms are constitutional only where they are consistent with history and tradition. If the regulated conduct is protected by the Second Amendment, the government, not the challenger, bears the burden of showing historical analogues that are relevantly similar to the modern regulation. If the historical analogues share similar purposes and means of regulation, the law is constitutional. The failure to demonstrate a historical pedigree renders the law unconstitutional.

Courts are under no obligation to locate historical evidence themselves – indeed, the Supreme Court noted that lower courts are entitled to rely “on the historical record compiled by the parties.”

But if the government doesn’t provide this historical evidence to courts, who will? Certainly not the challengers. Parties challenging firearm regulations have little, if any, incentive to produce historical evidence that might justify the modern regulation’s constitutionality. Courts may find the historical evidence themselves, either in databases or precedent, but given their heavy dockets and lack of obligation under Bruen, this task may easily become a low priority, if it is one at all. And there might, in fact, be ethical and practical reasons why judges should avoid conducting independent historical research – as discussed by prior posts and scholarship. Amici may fill in some of the gaps. But asking amici to step into the shoes of the federal government, particularly given the stunning volume of Second Amendment challenges after Bruen, is fraught.

In sum, the executive order signals that the federal government may cease to comply with Bruen’s historical demands when defending firearm regulations with which the administration disagrees. Perhaps the reversal will affect only a limited number of cases. But there are reasons to think that the impact will be much broader.

As one example, President Trump may seek to alter the government’s position on 18 U.S.C. § 922(g)(1), the federal felon-in-possession law. Given that President Trump is a convicted felon who has repeatedly claimed to own guns himself, he may have a special interest in ceasing the defense of the provision. That has broad implications for as-applied challenges. Since Bruen’s announcement of the new test two-and-a-half years ago, there have been more than 1,000 challenges to the federal felon-in-possession ban alone. In these cases, the Department of Justice has typically compiled historical evidence to justify the modern regulation.

This executive order may end that practice. If the DOJ ceases to provide historical evidence to support the felon-in-possession ban, it will mean that many as-applied challenges to 922(g)(1) and similar regulations could prevail due to the lack of historical evidence compiled by the government, provided that the challenge is brought in a circuit where historical evidence is considered when adjudicating new as-applied challenges. While Rahimi’s more flexible mode of analysis may allow courts to rely on the historical evidence that has already been incorporated into the case law, much of this evidence may not justify disarmament depending on the nature of the underlying felony conviction.

There are too many contradictions to make confident predictions about where the White House will ultimately fall on specific litigation positions. The president likely owns firearms but is legally barred from doing so. He has scorned gun safety regulations after supporting, and enacting, such regulations in the past. His current vice president dismissed gun violence as a “fact of life,” despite the president’s own life being nearly lost to an assassin’s gun. And now, President Trump is calling into question major aspects of the federal gun safety regime.

While it is too early to tell how dramatic the executive order’s effect will be, many (though not all) of our most important federal firearm regulations may suddenly receive the cold shoulder from the government: the entity that should be most prepared to defend them in accordance with the Court’s presumption that the government would do so in Bruen.

The government should continue to defend firearm regulations against Bruen challenges. With the Bruen test still in the early stages of doctrinal development, the failure to do so will pressure courts to create precedents that are unmoored from text, history, or common sense. The White House has the ability to prevent this result, and it should do so.