Will the Trump DOJ Reverse Course in Major Gun Cases?

On February 7, President Trump issued an executive order titled “Protecting Second Amendment Rights.”  Among other items, that order directed the Attorney General to review “[t]he positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights . . . and present a proposed plan of action to the President” within 30 days.  What impact might this order and subsequent executive action have on major ongoing firearms cases?

The executive order was substantially more modest than other orders that have received substantial media attention in recent weeks, including those seeking to end birthright citizenship, deport unauthorized immigrants, and reform the federal civil service.  The Second Amendment EO, by contrast, accomplishes nothing concrete and merely directs the AG to review certain materials to determine whether any current government positions threaten to undermine Second Amendment rights, and then present any such situations to the President for possible future action.  As commentators have noted, gun rights were conspicuously absent from Trump’s “day one” activities.  Despite broad campaign promises to immediately roll back Biden-era restrictions, in general guns have taken a backseat to other priorities so far. 

Moreover, Pam Bondi was confirmed as Trump’s Attorney General and even picked up a Democratic vote in the process.  Bondi, who defended age purchase restrictions and spearheaded enforcement of the Florida’s red flag law as state attorney general, stated during her confirmation hearing that she was pro-Second Amendment but “will enforce the laws of the land”—prompting backlash from some hardline gun-rights groups.  In one of her first acts as AG, Bondi issued a memo that included the following realignment of ATF priorities (emphasis added):

To free resources to address more pressing priorities, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) shall shift resources from its Alcohol and Tobacco Enforcement Programs to focus on matters relating to the other priorities set forth herein. No resources shall be diverted from the ATF’s regulatory responsibilities, such as federal firearms licenses and background checks.

In short, Trump’s actions thus far likely fall short of his campaign promise that “every single Biden attack on gun owners and manufacturers will be terminated my very first week back in office, perhaps my first day.”  Though, to be sure, some of Trump’s pledges—such as promising to sack Biden ATF director Steve Dettelbach—were rendered moot by intervening events.

While the second Trump administration appears to have elevated other policy initiatives above gun rights, the February 7 executive order highlights what may be the administration’s most consequential lever at the current moment: deciding when and where to modify the government’s position in ongoing Second Amendment litigation.  After conducting the required review, it seems likely that the ATF may reverse course in three major areas—and the timing and extent of such reversals could have major consequences.

First, the Trump administration is unlikely to defend Biden-era attempts to regulate firearms through executive action, though the method of reversal may vary depending on the case.  The highest-profile case in this category is Garland v. VanDerStok,[1] an administrative law challenge to ATF’s rule categorizing components used in so-called ghost guns as “firearms” or “frames and receivers” under the Gun Control Act.  The rule subjects ghost-gun parts to serialization and background check requirements and is designed to crack down on the spread of untraceable, self-assembled firearms.  The Supreme Court heard oral argument in VanDerStok in October, and the consensus view among court watchers after argument was that the justices will likely reverse the Fifth Circuit and find the ATF rule an appropriate exercise of agency authority, at least in part.  What’s more, the Court previously voted 5-to-4 to implement a stay of the district court injunction pending further appellate proceedings, potentially signaling their view on the merits.  Trump’s DOJ will now determine how to proceed. 

In a similar procedural situation in United States v. Skrmetti—litigation challenging Tennessee’s ban on certain gender-affirming care for minors—the federal government submitted a letter on February 7 stating that DOJ “has now determined that SB1 does not deny equal protection on account of sex or any other characteristic” and thus would not have intervened in the litigation to support the challenge to Tennessee’s law or appealed the lower court decision upholding that law.  However, the letter explains that the government has nevertheless decided not to seek dismissal at this point, in large part because of the presence of private plaintiffs in the case whose interests remain adverse to Tennessee’s. 

It seems unlikely, however, that the government pursues the same course in VanDerStok (i.e., inform the Court that it no longer believes the ghost gun rule is a permissible exercise of agency authority but is nevertheless content to let the litigation play out).  For one, most predict the government to win VanDerStok but lose Skrmetti—so waiting for a decision in Skrmetti is more likely to ultimately produce the outcome the Trump DOJ prefers.  Moreover, there are no private plaintiff-parties in VanDerStok, and thus even the government’s acknowledgement that it believes the rule exceeds agency authority might eliminate a live controversy between the parties and result in the Court losing jurisdiction to decide the case under Article III.  While a number of gun-violence-prevention and other organizations filed amicus briefs on behalf of the government, it’s not immediately clear whether any of those groups could be substituted for the government at this late stage or whether the interests of such a group will be entirely aligned with the government’s position. 

What’s more, Trump and his DOJ may not want to do away with the ghost-gun rule.  Public campaign statements to gun-rights groups notwithstanding, this is the same president who banned bump stocks following the Las Vegas shooting, condemned the murder of UnitedHealthcare CEO Brian Thompson—a murder committed with a 3D-printed ghost gun—as a “horrible” and “terrible” event, and often touts his instincts (rather than any overarching political philosophy) as driving his policymaking.  Simply waiting for the Court’s decision, then, might be a strategic play to let the issue blow over and potentially keep the regulation on the books if upheld.

Following the 30-day review specified in the February 7 EO, the administration is more likely to reverse course in administrative-law challenges to other Biden executive actions.  It would not be surprising for Trump’s DOJ to stop defending (or simply repeal) the Biden-era ATF rule classifying stabilizing pistol braces as “short-barreled rifles” subject to heightened NFA regulation—a rule that multiple federal appellate courts have already invalidated on administrative-law grounds.[2]  So too with Biden’s April 2024 order broadening the reach of federal background checks by expanding the definition of “engaged in the business” of selling guns.  In contrast to VanDerStok, these issues have yet to work their way up to the Supreme Court.  DOJ seems most likely to simply undo the orders, which would moot any legal challenge (potentially with advance notice to the relevant courts asking them to pause litigation while the administration evaluates the issue).

Second, a major area to watch will be the DOJ position on the federal statutory ban that has prevented federally-licensed gun dealers (or FFLs) from selling handguns to individuals under the age of 21 since 1968. As I discussed in this prior post, the under-21 FFL sale ban is a major target of younger gun-rights supporters often associated with President Trump and his son, Donald Trump, Jr. The Fifth Circuit Court of Appeals struck down the under-21 FFL sale ban on Second Amendment grounds in a January 30 opinion; a Fourth Circuit panel heard oral argument in an identical case that same day, and seems poised to uphold the law 2-to-1. 

The threshold question here is whether Trump’s DOJ appeals the Fifth Circuit’s decision in Reese to the Supreme Court or chooses to let the ruling stand.  Assuming no intervening en banc petition is filed, the government has 90 days from January 30 to seek cert in Reese.  And DOJ may well decide not to appeal,[3] given that—as in Rahimi—the government’s appeal of a circuit decision striking down a federal law as unconstitutional is almost always a likely cert grant.  Assuming the Fourth Circuit later upholds the law, however, the cert decision there will be in the private plaintiffs’ hands and the government will need to formulate a concrete position.  What’s clear at the moment, however, is that DOJ can slow-roll the age cases if it wishes.  A number of cases challenging state age restrictions are also percolating, including one in the Eleventh Circuit dealing with a Florida law that Bondi defended in her earlier position.  In that case, the panel upheld the law but that decision was subsequently vacated for rehearing en banc.  However, these cases seem relatively less likely to trigger a cert grant given the lack of nationwide consequences.

Third and finally, the 30-day review will likely include discussion about cases challenging the federal bans on possession by convicted felons and habitual users of unlawful drugs.  Most such challenges are brought in the context of criminal proceedings, and it seems unlikely that the Trump administration will order a broad rollback of the use of the felon-in-possession law.  However, the government may well decide to stop defending the law in certain applications, including in the Range case where the en banc Third Circuit recently re-issued a decision granting a challenge to the ban by a man with a decades-old conviction for food stamp fraud.  This might actually be one the least costly potential DOJ reversals, as most seem to accept that restoration is appropriate in Range and the current Supreme Court would likely agree.  Of course, another factor here is President Trump’s potential personal interest in revamping the approach to felon-in-possession cases given his status as a prohibited felon.

Other 922(g)(1) cases, including those involving past convictions for non-violent drug-related felonies, may present a more difficult decision for DOJ—as will the federal unlawful-drug-user ban.  That’s because it is tough to imagine Trump’s Attorney General taking the position that such laws are unconstitutional while also pursuing a “law and order” agenda that includes aggressive efforts to crack down on drug trafficking.  Though these laws, specifically the unlawful-user ban, are a favorite target of many hardline gun-rights groups, they don’t appear to be a neat fit with the rest of Trump’s current policy agenda.  For example, the Bondi ATF memo specifically directs the agency to “eliminat[e]” and take action against various international drug cartels.  Rather than a broad reversal in these cases, it seems more likely that DOJ will provide vague enforcement guidance that suggests a softer hand in ongoing Second Amendment cases but does not fully satisfy the gun-rights movement.