Is Trump Willing to Play 4D Chess to Make Lasting Progress in Furthering Americans’ Gun Rights?

One advantage the new (again) president has as he approaches inauguration day is choosing his own people, the executive management who will implement his policies. They will be the primary tools used to undo the damage and fix the many things his predecessor has broken.

Damage, for instance, such as what the Biden-Harris administration has done to the Second Amendment. The obvious first steps wouldn’t even require appointees to be confirmed. Trump 2.0 can begin by shutting down Biden’s Ministry of Gun Control and rescinding his executive orders. He could also order executive branch agencies kill many of the onerous rules they’ve put in place. While that’s certainly good, that won’t necessarily be the best answer in every case. For example, let’s look at the Biden Administration’s rule that has turned you — yes you — into a gun dealer.

This ATF rule reinterpreting existing law was ostensibly put in place to do something about so-called rogue gun shops the Biden administration claimed were selling firearms to known criminals. When you dig deeper, though, you see that the rule gives the Bureau of Alcohol, Tobacco, Firearms and Explosives incredibly wide latitude that enables it to call you a “dealer engaged in the business” of buying and selling firearms, even if you offer to buy or sell even a single gun to another individual.

You don’t even have to complete a single sale to be considered a gun dealer. And as usually the case with three-letter branch enforcement, the prosecution is the punishment since federal agents spend limitless amounts of government money to prosecute you while you have to pay out of pocket for lawyers to defend you and your family…for nothing more than selling a gun to your brother-in-law. Note, for instance, that BATFE considers the Washington, DC Police Department to be a “rogue firearms dealer.”

So it will be instructive to see what happens now that a more pro-rights president is in the White House.

Again, President Trump could overturn the most onerous rules and executive orders with the stroke of a pen and a phone call to his agency heads. The problem with that approach is that the next gun-grabbing Democrat who wins the White House could simply reinstate those same orders…or worse.

Instead of playing around on the policy see-saw, let’s spitball here a little. If he’s clever, President Trump could decide to use the vast administrative state (along with the judicial system) against itself to create some long-lasting changes that would outlive his presidency.

To begin, he can order BATFE to make the broadest possible claims possible under the current Biden-created executive orders and rules. For example, BATFE might declare that anyone who buys and sells a single gun must become a Federal Firearms Licensee, i.e., a federally licensed gun dealer. He could then use the administration-controlled Department of Justice charge a sympathetic plaintiff in a pro-rights federal District Court. I’m thinking they could to charge a black single mother who is trying to sell her gun back to her policeman-boyfriend.

The DOJ could then deliberately overstate the claims and overcharge her. The plaintiff’s defense expenses could be covered by one or more gun rights organization. The District Court would then clear the defendant, declaring the Biden-created rule unconstitutional. After that decision, the rule can’t be enforced in that federal district.

This is where things get interesting. The District Court has ruled the Biden ATF-imposed rule is unconstitutional. Trump’s DOJ would then appeal the case to the (Fifth) Circuit Court of Appeals, which would uphold the District Court’s ruling. The DOJ would then ask for review of the case by the Supreme Court where — we’d hope — the rule is declared unconstitutional across the entire United States.

Yes, this would require some regulatory and legal 4D chess. It isn’t clear that the Trump 2.0 administration is willing or capable of playing at that level. The advantage here, of course, is the much wider scope of a SCOTUS pro-rights decision. Those decisions can’t easily be overturned by the next Democrat administration.

The disadvantage is that, barring a nationwide injunction, many people’s rights will continue to be violated for years as the case winds its way through the courts. And it isn’t certain that the Supreme Court would choose to hear the case.

Also, too often, our elected representatives feel the need to appear relevant in the next news cycle and certainly before the next election. Playing a long game like this may not appeal to them. Are they, and we, willing to wait?

We can win small and fast (Trump issues his own executive orders) or we can win big and slow (4D chess). This same strategy can be used with many of the rights that Biden and his hoplophobic handlers have taken from us. The choice depends on how patient we’re willing to be and how forcefully we ask our representatives to do the right thing.

 

This article originally appeared at the Slow Facts blog and is reprinted here with permission.