Trump Administration and 2A

In the upcoming Firing Lines, we discuss Trump and the 2nd Amendment.  Since our cut off for its publication, more has happened.

Usually, the Department of Justice (DOJ) leans toward enforcement and regulation. It’s rare for the DOJ to support rolling back gun control but the Trump administration is doing just that.

In 2021, the Biden administration promulgated a rule through the Bureau of Alcohol, Tobacco, and Firearms (ATF) setting forth a framework for determining whether pistols equipped with stabilizing braces are considered “short-barreled rifles” and subject to a tax and registration requirements under the 1934 National Firearms Act.  That rule went into effect in 2023 and pistol braces were reclassified as short barreled rifles and a $200 tax and registration requirement were imposed on the estimated 40 million braces in circulation.  Non-compliance meant potential felony charges carrying up to 10 years in prison and $250,000 in fines.

2A advocacy groups argued that the pistols constitute protected arms.

There were many cases challenging the ATF rule and two appeals courts found against the ATF despite the continuing efforts of the Biden administration.

It was recently announced that the Trump (DOJ) has formally ended its defense of that directive.  (By the way, 40 million pistol braces would seem to qualify as ”in common use.”)

In a case involving state laws:

In July, Trump’s DOJ filed a legal brief urging the U.S. Supreme Court to take up the case and strike down sweeping state-level firearm restrictions, in several states.  A 2A win at the Supreme Court level would likely strike down several major gun laws and force states to rethink their entire approach to firearms regulation.  Such a decision could create a national standard that constitutional rights can’t ‘get the run around’ by state-level lawmakers.

The DOJ’s brief targets Hawaii’s law that bars people from carrying firearms on private property unless there’s a visible sign allowing it; lawful carry is a crime unless a property owner explicitly says otherwise. Since most businesses don’t post any signs at all, this creates a “near-complete ban on public carry.”  (SCOPE members will remember that New York State’s ‘Concealed Carry Improvement Act’ also did this.) 

The DOJ is using the New York State Rifle & Pistol Association v. Bruen decision (Bruen) as the foundation for its brief; modern gun laws must align with the historical traditions of firearm regulation in America. The DOJ argues that bans on magazine sizes, carry restrictions, age limits, and licensing schemes do not meet this historical test.  (Again, NYS is a constitutional failure.)

This puts the DOJ on the side of gun owners. The DOJ brief states that the United States “has a substantial interest in the preservation of the right to keep and bear arms.”

In another case, a lower court struck down handgun purchase bans for 18-to-20-year-olds. The court cited the Bruen standard and found the age-based ban unconstitutional

Trump’s DOJ chose not to appeal that decision

This change in attitude at the federal level is important in another sense. 

Previously, NY State lawmakers ignored the U S Constitution when passing laws attacking 2A.  There attitude was ‘sue us.’  Private citizens had to sue the state using private citizen funding while the state used ’house money’ (the taxpayers seemingly bottomless pockets.)  If the state lost at one level, they just appealed to the next level, costing the citizen hundreds of thousands of dollars.  NY’s strategy was to physically, mentally - and most importantly - monetarily exhaust the NY citizen.

With the federal government taking the lead, the feds have a bigger pocket of ‘house money’ and they can afford to challenge the states, where private citizens had to do it in the past.

Of course, it’s the taxpayers’ state money versus the taxpayers’ federal money, but NY State no longer holds the money cards.