Not Your Father’s DOJ: Trump Administration is Backing the Second Amendment in Litigation

It has, in theory, always been the sworn duty of the U.S. Department of Justice to uphold the constitutional rights of American citizens and to affirmatively protect fundamental liberties. But its active support for the right to keep and bear arms has been vanishingly rare. Recent developments under President Trump, however, are beginning to change that longstanding neglect. For perhaps the first time in the nation’s history, DOJ is proactively using its legal authority to protect Second Amendment rights.

We have already reported on examples of this, including DOJ’s investigation of the Los Angeles Sheriff Department’s concealed carry permitting practices and its Interim Final Rule aimed at restoring lost firearm-related rights. We also noted that the government dropped a charge for illegal possession of a short-barreled rifle “in the interest of justice” in a case involving a braced pistol. This trend has continued and escalated to the point where DOJ is reversing positions in gun control cases and has now even asked the U.S. Supreme Court to hear a case that addresses a growing trend among anti-gun states that threatens the viability of lawful carry.

Another case in which the government has reconsidered its support for gun control came last month in New York v. Arm or Ally, in which the state of New York is pursuing various companies for selling products that the state claims undermine its gun control regime. Specifically, the companies sold unfinished frame or receiver blanks that customers could use in constructing personally made firearms. The companies in some cases advertised their products as having not yet obtained the status of firearms under the law, such that customers could obtain them without following the same rules that pertain to functional guns.

As a matter of federal law, it has long been legal to obtain precursor parts for frames or receivers without following the formalities that apply to firearm sales. The government under the Biden-Harris administration, however, tried to narrow the range of products exempt from the coverage of federal gun control statutes with an expansive rulemaking.

Meanwhile, New York and certain other anti-gun states passed laws that dealt with personally made firearms, and the parts from which they’re made, more strictly than federal law. Among other things, state officials have used these laws to give themselves standing to sue companies that sell unserialized receiver blanks interstate.

Recently, the U.S. Supreme Court upheld the Biden-era rule because, it stated, the rule could legitimately apply to Polymer80 type receiver blanks and to build kits that contained such blanks and all the other components necessary to assemble a functional firearm. Otherwise, however, the Supreme Court did not elaborate on where the lines would be drawn for products that require more extensive and specialized finish work to be usable in a functional firearm.

Initially, the U.S. government had intervened to join the state as a plaintiff in the New York lawsuit. This substantially increased the resources, personnel, and expertise available for New York to try to vindicate its punitive and persecutory approach to personally made firearms.

Last month, however, the Trump/Bondi DOJ reversed that decision and asked the Second Circuit, which is hearing an appeal in the case, to allow it to withdraw from the case. In a letter dated April 21, the government cited President Trump’s Executive Order, “Protecting Second Amendment Rights,” as well as Attorney General Pam Bondi’s recently created Second Amendment Task Force as leading DOJ to reassess its participation. The government recognized the Supreme Court had recently “provided some clarity on the regulatory question of how best to apply the Gun Control Act to unfinished frames and receivers[.]” But, it continued, “this interpretation should not serve as a basis for punishing gun manufacturers for conduct that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) considered lawful at the time of the sales.” The upshot of these determinations was the “government .. no longer wishes to be a party to this litigation.“

In another welcomed development last week, DOJ filed a friend of the court brief supporting a petition for the U.S. Supreme Court to review a Ninth Circuit decision upholding an expansive Hawaii gun control law. The case is Wolford v. Lopez.

Hawaii’s law, like the laws of four other anti-gun states, flips the traditional presumption that lawful public carry extends to publicly accessible private property, unless the property owner affirmatively bans it and provides notice of the ban. The challenged law would instead presumptively ban concealed carry on publicly accessible private property, unless the property owner affirmatively decided to allow it and provided prescribed forms of notice for that decision. This, along with extensive statutorily prescribed “gun-free zones” in “sensitive places” in those jurisdictions would, in practical effect, nullify the right to carry, even for those who had successfully navigated the permitting process to do so.

The government’s brief presented a forceful and convincing case for the court to intervene. It noted the lack of any historical tradition for such a restriction, as required by the Supreme Court’s precedent in New York State Rifle & Pistol Association v. Bruen. Moreover, the brief explained, “Hawaii’s default rule functions as a near-complete ban on public carry,” and “effectively nullifies[] the ‘general right to publicly carry arms’ that Bruen recognized.” The government even suggested the state was not acting in good faith: “That is no accident. The structure and operation of Hawaii’s law reveal that the law serves no legitimate purpose and instead seeks only to inhibit the exercise of the right to bear arms.”

Amplifying the need for the court’s intercession, the brief pointed out, the Court of Appeals for the Second Circuit had invalidated a similar New York law in Antonyuk v. James.

DOJ’s participation in cases has traditionally been treated as significant and influential by federal courts, given the department’s duty to pursue the public interest. Its litigators are considered among the nation’s best and often go on to appointments as federal judges, become partners in prestigious law firms, or end up in academia or elected office. The government’s ability to litigate a case, moreover, doesn’t depend on the resources of a given party. To say a committed and involved DOJ could be a force multiplier in the project to uphold the Second Amendment would be an understatement. It could be a gamechanger and could give recalcitrant anti-gun states – used to acting with virtual impunity – a reason to curb their prohibitionist ambitions.

NRA-ILA looks forward to reporting on other developments ushered in by the Attorney General’s Second Amendment Task Force. The Trump Administration’s actions to date have already set a new highwater mark for DOJ’s affirmative protection of the right to keep and bear arms.