The Trump DOJ’s Second Amendment Advocacy

The second Trump administration has recently made waves with affirmative actions that may transform the landscape of gun rights and regulation.  For example, Trump’s DOJ earlier publicized its intent to restart a federal restoration program for those prohibited from possessing guns under federal law.  DOJ has now published a lengthy proposed rule that outlines the process.[1]  The administration has also initiated “pattern or practice” civil rights investigations of cities such as Los Angeles, accusing them of violating Second Amendment rights by subjecting concealed carry permit applicants to excessive wait times.  In the courts, DOJ has dropped appeals of some major rulings striking down gun laws; most notably, declining to file cert petitions seeking review of appellate rulings that invalidated possession bans for certain nonviolent felons and the federal ban on federally licensed dealers selling handguns to 18-to-20-year-olds.[2]

Yet administrative turnover has also had another major impact: in the second Trump administration, the DOJ has been much more willing to weigh in as an amicus in major Second Amendment litigation—both at the Supreme Court and at the appellate level.  These filings seem to be, at least in part, an outgrowth of the administration’s “Second Amendment Enforcement Task Force,” headed by Attorney General Pam Bondi.  The Trump DOJ’s Second Amendment amicus advocacy provides clues into both the types of cases that the government would like the Court to hear soon and, potentially, the administration’s broader theory of Second Amendment rights.  

For one, the Trump DOJ seems especially focused on state assault weapon bans.  This should come as no surprise, as the constitutionality of such laws has been a major point of contention in the federal appellate courts post-Bruen—while there is as of yet no circuit split, the cases have provoked heated dissents.  And the Supreme Court all but guaranteed in Snope v. Brown that it would take up the question soon.[3]  Snope was distributed prior to President Trump’s second inauguration and, thus, the federal government did not weigh in on the cert petition there.  But the Trump DOJ has since been active on the issue at the circuit level.

For example, the federal government filed an amicus brief in Barnett v. Raoul—a Second Amendment challenge to Illinois’ assault weapons and large-capacity magazine ban—in the Seventh Circuit.  The brief excoriates Illinois’ regulatory approach, arguing that the state “violated the Supreme Court’s clear directive that States cannot prohibit arms that are ‘in common use’ by law-abiding citizens for lawful purposes.”  And the brief emphasizes that “multiple Supreme Court Justices (including Bruen’s author) have since made it clear that they disagree with” lower court decisions upholding assault weapon bans. There is little doubt about how Barnett will come out.  The Seventh Circuit has already ruled in a published decision that Illinois’ law is constitutional, and the circuit declined to take that case en banc.  The Barnett panel is bound by the earlier decision in Bevis.  Yet the government’s brief seems designed to send the clear signal that, as cases like Barnett and others work their way up to the Supreme Court, the government will be there as a reliable ally for the plaintiffs supporting their efforts to seek certiorari. 

DOJ does not appear to have filed briefs in other pending assault weapon or large-capacity magazine cases at the appellate level, though many of these pending cases were argued prior to the new administration taking office in January.  It will be especially interesting to see whether the government weighs in on a challenge to New Jersey’s assault weapons that is currently pending before the en banc Third Circuit, with oral argument scheduled for October.

Another area of focus for the federal government is sensitive-place restrictions.  A number of blue states, including Hawaii and California, enacted far-reaching locational restrictions on public carry in the wake of Bruen.  These laws have been challenged in court and generally upheld, and the Supreme Court has declined to get involved so far despite methodological disagreement among appellate judges. In Wolford v. Lopez, the Ninth Circuit upheld a Hawaii law prohibiting permit holders from carrying handguns onto private property without the property owner’s express permission (however given).[4]  The challengers have petitioned for certiorari and they have the federal government’s support.  DOJ argues that Hawaii’s regulation “defies—indeed, effectively nullifies—the ‘general right to publicly carry arms’ that Bruen recognized.”  The government suggests Hawaii’s approach is motivated solely by anti-gun animus and argues that the law is flatly inconsistent with a history of permitting public carry as the default approach.

What are the major takeaways from these two recent examples of DOJ’s Second Amendment amicus advocacy?  For one, DOJ seems to be selectively picking cases with an eye toward Supreme Court review rather than weighing in across the board.  It also may be that DOJ is attempting to steer the Court away from certain types of challenges (including, potentially, age restrictions) to cases that it believes represent a clearer affront to gun rights or to cases where it would like to paint state regulatory action as motivated by anti-gun beliefs.

Another noteworthy fact is that both briefs appear to rely heavily on a “general law” theory of the Second Amendment.  As explained in a recent Notre Dame Law Review article that was part of the Center’s 2023 symposium on Bruen, scholars Will Baude and Robert Leider (the current chief counsel of ATF) advocate an approach of “looking to a wide range of cases, parsing the close cases, setting aside unusual outliers, and trying to distill the general principles.”  According to Baude and Leider, the key source of historical principles under the Second Amendment is the general law: “a form of common law shared among Anglo-American jurisdictions, which could be expounded by any of them, but controlled by none of them.”

By citing Baude and Leider’s work extensively, the government seems to be advocating a high-generality approach to Bruen of the type preferred by the majority in Rahimi.  Baude and Leider, for example, endorse the “dangerousness” principle that the Rahimi majority went on to apply.  The reference to “Bruen’s author” in the Barnett brief, then, is especially interesting.  While DOJ highlights Justice Thomas’ views on assault weapons and invokes his authority as the author of the Bruen decision in that context, it seems to have otherwise parted ways with Thomas’ strict approach to analogy-parsing in prohibited-person cases.