ARTICLE REVIEW

A three-judge panel of the U.S. Court of Appeals for the Second Circuit has ruled that New York City’s ban on stun guns survives constitutional scrutiny — not by carrying the government’s burden under the Bruen framework, but by engineering the analysis so that burden never reaches the government at all. The summary order in Calce v. City of New York is a textbook case of the procedural gamesmanship plaguing Second Amendment litigation in hostile circuits.

The Two-Step Shell Game

Under the Bruen methodology, step one asks whether the Second Amendment’s plain text covers the individual’s conduct. If it does, the Constitution presumptively protects that conduct, and the burden shifts to the government at step two to justify its regulation through the nation’s historical tradition of firearms law.

The Second Circuit’s panel, led by Judge Raymond J. Lohier Jr., collapsed this framework by stuffing the “in common use” test into step one. The panel held that the plaintiffs — the Firearms Policy Coalition, the Second Amendment Foundation, and individual New Yorkers including lead plaintiff Nunzio Calce — bore the burden of proving that stun guns are “in common use today for self-defense” before the plain text was even implicated. Because they allegedly failed to adduce sufficient evidence on that point under Rule 56, summary judgment for the City was appropriate.

This gets the analysis backward. The Supreme Court in Heller defined “arms” as anything that can be used offensively or defensively — a definitional, linguistic inquiry rooted in founding-era dictionaries by Samuel Johnson and Noah Webster. A stun gun plainly qualifies. The “in common use” language in Heller arose during the historical analysis, where Justice Scalia identified the tradition permitting bans only on “dangerous and unusual weapons.” That is a government burden at step two, not a plaintiff burden at step one.

Circular Authority and the Inferior Court Problem

The most revealing aspect of the panel’s order is what it cited — and what it did not. The Second Circuit did not grapple with Heller’s definition of arms. It did not address Caetano v. Massachusetts, the 2016 per curiam decision in which the Supreme Court unanimously held that stun guns are protected arms. Instead, the panel relied on its own prior Second Circuit decisions. Under Article III, the Second Circuit is an inferior court bound to follow the Supreme Court. Citing yourself to avoid binding precedent from above is a circular authority game, not legal reasoning.

The Caetano problem is particularly acute. Jaime Caetano used a stun gun to defend herself against an abusive ex-boyfriend, was arrested under Massachusetts law, and the Supreme Court summarily reversed her conviction. If the nation’s highest court has already said stun guns are arms, the Second Circuit’s conclusion that plaintiffs failed to establish plain-text coverage is irreconcilable with controlling authority.

The Legislative Facts Sleight of Hand

The panel also conflated two distinct categories of evidence. It rejected materials the plaintiffs introduced on appeal — newspaper articles, a Congressional Research Service report documenting surging civilian stun gun purchases, and Justice Alito’s Caetano concurrence — on the ground that they were not presented to the district court.

But evidence of an arm’s prevalence in American society is a legislative fact, not an adjudicative fact requiring trial testimony. Courts consider legislative facts at any stage of proceedings. No witness needs to take the stand to establish that the American Revolution occurred or that the Federalist Papers exist. The same principle applies to evidence that millions of Americans own stun guns. Treating this as a failure of proof conflates two fundamentally different evidentiary categories — conveniently in the government’s favor.

The Summary Order Shield

The panel labeled its ruling a summary order with no precedential effect — a tell. A court confident in its reasoning publishes a precedential opinion. A court worried about Supreme Court review buries its work in a non-precedential format, hoping to avoid scrutiny.

Whether the Firearms Policy Coalition and Second Amendment Foundation seek certiorari remains to be seen. If they do, the Supreme Court will confront a lower court that ignored Caetano, misapplied Heller and Bruen, and ensured the government never had to carry the burden the Constitution assigns to it. A summary reversal — as the Court did in Caetano itself — would be entirely appropriate.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

Governor Abigail Spanberger signed HB40 into law on April 10, 2026, making Virginia the latest state to ban so-called “ghost guns” — the political shorthand for privately made firearms that lack government-issued serial numbers. The law prohibits building, importing, selling, transferring, or possessing an unserialized firearm or unfinished frame or receiver in the Commonwealth. It also requires that any existing privately made firearm be taken to a federal firearms licensee to have a serial number applied and recorded.

Stripped of its public safety branding, HB40 is a registration mandate. And under the Heller–Bruen analytical framework, it almost certainly cannot survive constitutional scrutiny.

The Plain Text Gets You There

The Second Amendment protects “the right of the people to keep and bear arms.” As the Supreme Court has explained, “keep” means to possess, and “bear” means to carry. But both presuppose a logically prior right: the right to acquire arms. You cannot keep or bear what you were never permitted to obtain. And acquisition comes in only a few flavors — purchase, inheritance, or manufacture.

HB40 directly burdens the manufacturing path. It does not outright prohibit a Virginian from building a firearm at home, but it conditions that activity on submission to a federal regulatory apparatus: take your finished product to an FFL, have it serialized, and allow it to be recorded in books subject to government inspection. For a person who is not in the business of selling firearms and is not engaged in any commercial transaction, that is a substantial regulatory imposition on conduct the plain text of the Second Amendment protects.

Registration Is the Real Target

The serialization requirement is the mechanism, but registration is the purpose. As then-Judge Brett Kavanaugh explained in his Heller II dissent in 2011, the historical record shows that firearms registration has been essentially forbidden throughout American history. The founding generation understood that registries are precursors to confiscation — and they wanted no part of it.

HB40 accomplishes through indirection what a direct registry would accomplish openly. By requiring every privately made firearm to pass through an FFL’s books, the law creates a de facto government record of who owns what. The FFL’s bound book is not a private diary; it is subject to ATF inspection and, presumably under Virginia’s new statutory framework, review by Virginia State Police.

America’s Tradition of Private Gunmaking

Under the Bruen methodology, once the plain text is implicated, the burden shifts to the government to identify a historical tradition of analogous firearms regulation from the founding era. Virginia will find no such tradition.

The most thorough scholarly treatment of this history is Joseph G.S. Greenlee’s article “The American Tradition of Self-Made Arms,” published in Volume 54 of the St. Mary’s Law Journal in 2023. Greenlee, who also filed an amicus brief for the NRA in the VanDerStok litigation at the Supreme Court, documents in painstaking detail that the founding generation not only tolerated private gunmaking — they actively encouraged it. Colonial governments promoted gunsmithing among ordinary tradesmen, lawyers, and shopkeepers because an armed citizenry depended on a domestic supply chain the British could not cut off.

The great American firearms inventors were, almost to a man, tinkerers working outside any licensing regime. Joseph Belton pitched his repeating flintlock to the Continental Congress in 1777. Samuel Colt was a serial entrepreneur. John Browning revolutionized firearm design from a small Utah workshop. Eugene Stoner developed the AR-15 platform as a private-sector engineer. None of them operated under a regime that required serialization and government registration of privately made arms.

The Only Historical Analogue Proves the Opposite

The technology to mark metal existed in the late 18th century, and some firearms were in fact marked — but only in narrow, private contexts. Militia organizers like George Washington would stamp numbers on government-owned muskets so they could track which militiaman had which weapon and retrieve it afterward. That was property management, not regulation. No law required it.

The one genuine historical example of compelled serialization and registration comes from Ireland, where the English Crown forced Irish Catholics to etch and register the few firearms they were permitted to own. The purpose was not public safety — it was suppression of a subjugated population. The founding generation knew this history well and explicitly rejected it. As historian Clayton Cramer and others have documented, the American project was built in part on the determination never to become the Irish under English rule.

Where This Goes

Harmeet K. Dhillon, the Assistant Attorney General for Civil Rights, wrote to Governor Spanberger on April 10 warning that the Department of Justice is reviewing Virginia’s slate of new gun laws for potential constitutional violations. HB40 should be high on that list. It imposes a registration requirement with no historical pedigree, burdens the clearly protected right to manufacture arms for personal use, and draws its only historical parallel from a regime of colonial oppression the founders repudiated.

Virginia’s ghost gun ban is not just bad policy. Under the framework the Supreme Court has prescribed, it is almost certainly unconstitutional.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The Second Amendment community spent the past week in a frenzy over a statement by a Department of Justice trial attorney in the ongoing VanDerStok v. Bondi litigation, claiming the Trump administration has permanently embraced the Biden-era definition of what constitutes a firearm frame or receiver. The reality is considerably more nuanced, and the panic may be premature.

The Procedural Context Everyone Is Missing

To understand why this statement may be far less consequential than social media suggests, you need to understand the procedural posture of the case. After the Supreme Court’s 7-2 decision in Bondi v. VanDerStok in March 2025 — in which Justice Neil Gorsuch’s majority opinion held that the ATF’s frame-or-receiver rule was not facially inconsistent with the Gun Control Act — the case was remanded to the Northern District of Texas and landed back before Judge Reed O’Connor. But the Supreme Court’s ruling was narrow: it addressed only certain provisions under an Administrative Procedure Act facial challenge. Significant issues remain unresolved, and the Second Amendment community can still prevail on those open questions.

When the Trump administration took office, the DOJ moved to stay several pending challenges to the Biden-era rule, signaling that the ATF planned to amend or revoke the regulation — which would moot the cases entirely. Judge O’Connor granted the stay, and the case sat dormant.

The April 2 Status Report

On March 19, 2026, Judge O’Connor ordered the parties to provide an update. The resulting joint status report, filed on April 2, contained a critical disclosure: the ATF had advised that it “plans to take agency action to amend the challenged rule.” The parties — with the notable exception of intervenor plaintiffs Defense Distributed and the Second Amendment Foundation — requested that the court maintain the stay for another 90 days to allow the rulemaking process to play out.

Defense Distributed and SAF, however, declined to wait. They proposed moving forward with renewed summary judgment briefing, and the defendants did not oppose. The parties agreed to submit a proposed briefing schedule by April 9.

The Statement That Launched a Thousand Posts

On April 8 — the day before that scheduling deadline — a DOJ trial lawyer sent a letter to opposing counsel stating that “at this time, the government has decided to maintain the current definition of firearm frame or receiver contained in the final rule.” This is the statement that triggered the uproar.

Read carefully, however, and it says less than the headlines suggest. The phrase “at this time” is doing significant work. The lawyer is making a statement of present fact for the purpose of finalizing a litigation schedule — not announcing a permanent policy position on behalf of the Trump administration.

The Regulatory Freeze Explains the Delay

The most likely explanation for the DOJ’s current posture has nothing to do with a policy betrayal and everything to do with standard administrative procedure. On January 20, 2025, President Trump issued a regulatory freeze memorandum ordering all executive departments and agencies not to “propose or issue any rule” until a department or agency head “appointed or designated by the President” has reviewed and approved it.

The ATF currently does not have a Senate-confirmed director. Robert Cekada, the president’s nominee, cleared his Senate Judiciary Committee hearing in February 2026 with broad bipartisan support and was advanced by the committee on March 5 by a 14-8 vote. But the full Senate has not yet voted to confirm him. Under the terms of Trump’s own executive order, the ATF arguably should not be proposing new rulemaking until Cekada is formally installed as director.

This is not a Trump administration problem — it is a Senate scheduling problem. And it is entirely consistent with longstanding practice across administrations, including those of Presidents Obama and George W. Bush, that agencies refrain from major rulemaking without a confirmed head.

What This Means Going Forward

There are two tracks to watch. First, the litigation itself: Defense Distributed and SAF are pressing forward with summary judgment briefing before Judge O’Connor, which will address the remaining challenges to the Biden-era regulation that the Supreme Court did not resolve. That fight is very much alive, and the plaintiffs are in a strong position.

Second, the rulemaking track: once Cekada is confirmed, the ATF will have a Senate-confirmed director and the regulatory freeze obstacle will be removed. At that point, the agency will be free to propose amendments to the frame-or-receiver definition — exactly as the April 2 status report indicated it planned to do.

A factual statement by a low-level DOJ trial lawyer negotiating a scheduling order in a Texas district court is not a definitive statement of administration policy. It is a snapshot of where things stand today, constrained by procedural realities that have nothing to do with the Trump administration’s commitment to the Second Amendment. The Second Amendment community should pay attention to this issue, but it is not yet time to panic.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

On a Friday afternoon, the Department of Justice’s Civil Rights Division did something that would have been unthinkable a few years ago: it put a sitting governor on formal notice that signing gun control legislation would trigger a federal lawsuit defending the Second Amendment. The target was Virginia Governor Abigail Spanberger, and the weapon was a two-page letter from Assistant Attorney General Harmeet K. Dhillon that reads less like diplomatic correspondence and more like a litigation hold notice.

The Letter and Its Target

The letter zeroes in on SB 749, the Virginia assault weapons ban that would criminalize the purchase, sale, and manufacture of AR-15s and other semi-automatic firearms in common use. Dhillon’s language is blunt: the Civil Rights Division “will commence litigation” if Virginia enacts bills that “unconstitutionally limit law-abiding Americans’ individual right to bear arms.”

Dhillon invoked Executive Order 14206, signed by President Trump in February 2025, which directed the Attorney General to take affirmative steps to ensure Second Amendment rights are not infringed. She noted that immediately upon being sworn in as Assistant Attorney General, she launched the department’s first-ever investigation into practices alleged to violate law-abiding citizens’ Second Amendment rights, and that her division has since formally created a dedicated Second Amendment Section — the first of its kind in DOJ history.

The letter does not merely threaten. It invites Virginia’s attorney general to confer with Acting Chief Andrew Darlington of the Second Amendment Section “in an effort to avoid unnecessary litigation.” That is the prosecutorial equivalent of a polite warning before the handcuffs come out.

The Legal Foundation: Building Brick by Brick

What makes the DOJ’s letter legally formidable is the case law it marshals. Dhillon cites the Supreme Court’s unanimous 2025 opinion in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, which noted that the AR-15 “is both widely legal and bought by many ordinary consumers.” She also points to Garland v. Cargill (2024), where even Justice Sotomayor’s dissent acknowledged that AR-15s are “commonly available semi-automatic rifles” — hardly a concession from a friend of gun control.

The letter further cites Justice Kavanaugh’s statement respecting the denial of certiorari in Snope v. Brown (2025), in which Kavanaugh observed that Americans possess an estimated twenty to thirty million AR-15s and that “this Court should and presumably will address the AR-15 issue soon.”

These citations are not random. They reflect a deliberate, incremental strategy — one brick laid upon another — to establish that semi-automatic rifles in common use are constitutionally protected under District of Columbia v. Heller’s “dangerous and unusual” framework.

The Strategic Calculus: Why States, Not Congress

The DOJ’s laser focus on state gun control laws is not accidental. Consider the Supreme Court’s track record. In Heller, the Court struck down D.C.’s handgun ban. In McDonald v. City of Chicago, it incorporated the Second Amendment against the states and invalidated Chicago’s handgun ban. In Caetano v. Massachusetts, it vacated a stun gun conviction. In New York State Rifle & Pistol Ass’n v. Bruen, it dismantled New York’s discretionary carry permitting regime. And in Wolford v. Lopez, currently pending, the challenge arises from a Hawaii state law.

Contrast this with United States v. Rahimi, where the Court upheld a federal statute — 18 U.S.C. section 922(g)(8) — prohibiting firearm possession by those subject to domestic violence restraining orders. The pattern is instructive: the Court has shown far greater willingness to strike down state and local restrictions than federal statutes enacted by Congress. The votes of Justices Kavanaugh, Roberts, and Alito are more reliably pro-Second Amendment when the target is state overreach rather than congressional action.

This explains why the DOJ is channeling its resources toward Virginia, Illinois, and other blue-state jurisdictions rather than picking fights over federal gun control laws. Favorable precedent is more likely to emerge from challenges to state laws, and unfavorable precedent — the kind that could haunt the Second Amendment for decades — is less likely to result.

What Comes Next

Governor Spanberger faces a deadline. Her General Assembly has forwarded over twenty bills restricting Second Amendment rights. If she signs SB 749 into law, the DOJ has all but promised a federal lawsuit seeking injunctive relief. The question is whether Spanberger, a former CIA officer who has staked her governorship on a gun control agenda, will blink.

For the Second Amendment community, this is exactly the kind of executive action many voted for — the full weight of the federal government deployed not against gun owners, but on their behalf. The fight is incremental, the progress is measured in individual cases and administrative actions, and no single letter resolves the broader constitutional question. But having the DOJ’s Civil Rights Division treat the right to keep and bear arms as an actual civil right — and enforce it accordingly — is a significant development that should not be understated.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The Trump Department of Justice has a methodology problem — and it keeps showing up in Second Amendment briefs filed by career attorneys operating without oversight from senior political appointees. The latest example comes from the Eleventh Circuit, where the government’s brief in United States v. Alsenat fundamentally misapplies the two-step framework the Supreme Court established in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). This is not an isolated incident. It is a pattern that risks lasting damage to Second Amendment jurisprudence.

The Alsenat Case and the Machine Gun Question

Maxon Alsenat pleaded guilty to possessing a machine gun in violation of 18 U.S.C. 922(o) after selling conversion devices to an undercover agent. He challenged his conviction on Second Amendment grounds before the Eleventh Circuit, which heard oral argument on April 8, 2026. The core question: does the Second Amendment’s plain text cover machine guns?

Under Bruen, the analysis proceeds in two steps. First, the court asks whether the Second Amendment’s plain text covers the claimant’s conduct — a definitional inquiry about whether the item qualifies as a “bearable arm.” Second, the burden shifts to the government to demonstrate that its regulation is consistent with the nation’s historical tradition of firearms regulation.

The DOJ brief collapses these steps into one. It argues that “the Second Amendment’s text does not preclude section 922’s regulation of machine guns because the amendment’s protection only applies to weapons in common use for lawful purposes.” The brief treats the common-use inquiry as part of the plain text analysis at step one — when it belongs at step two, where the government bears the burden of proof.

Why the Distinction Matters

This is not a semantic quibble. Moving the common-use test from step two to step one shifts the burden of proof from the government to the Second Amendment claimant. At the plain text level, the only question is whether the item is a bearable arm. In Caetano v. Massachusetts, 577 U.S. 411 (2016), the Supreme Court stated that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

A machine gun is plainly a bearable arm. Whether it can be regulated is a question for step two, where the government must show that the arm is both dangerous and unusual — a conjunctive test rooted in historical tradition. If the arm is in common use for lawful purposes, it cannot by definition be “unusual,” and the government cannot meet this burden.

A Recurring Problem Across Multiple Cases

The Alsenat brief is not an outlier. In Brown v. ATF in the Eastern District of Missouri — the challenge to NFA registration requirements — the DOJ made the identical error, arguing that the common-use inquiry “belongs at Bruen’s first step.” Meanwhile, in Benson v. United States before the D.C. Court of Appeals, career DOJ attorneys effectively endorsed gun registration as constitutionally permissible — contradicting then-Judge Brett Kavanaugh’s 2011 dissent in Heller II, where he wrote that D.C.’s registration requirement was unconstitutional under Heller.

The Harmeet Dhillon Contrast

What makes these errors conspicuous is that the DOJ’s own senior political appointees have gotten the analysis right. In Barnett v. Raoul — the Seventh Circuit challenge to Illinois’s AR-15 ban — Harmeet Dhillon’s Second Amendment Rights Section filed a brief that correctly applies Bruen: defining AR-15s as bearable arms at the plain text level, then separately arguing at step two that the government cannot show these commonly owned firearms are dangerous and unusual.

The pattern is clear: when Dhillon’s team or other Trump-appointed officials are involved, the briefs get the methodology right. When career attorneys file without that oversight, the methodology goes wrong in ways that consistently benefit the government’s position by shifting burdens away from where the Supreme Court placed them.

The Real Danger

We can afford to lose some cases involving federal gun control law. But what we cannot afford is to get the Second Amendment jurisprudence of Heller and Bruen screwed up. Erroneous methodology in government briefs creates the risk of bad precedent. Federal judges who accept the DOJ’s conflation of the plain text and historical analyses may establish circuit-level rulings that distort Bruen’s framework — rulings that will be cited long after this administration leaves office.

Someone at the Department of Justice needs to review every Second Amendment brief before it is filed in any federal court. Whether the errors in Alsenat and Brown are the product of deliberate resistance, honest misunderstanding, or carelessness is irrelevant. The briefs are wrong, they contradict the administration’s own senior officials, and they need to stop.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The Trump administration deserves credit for its pro-Second Amendment posture — from its amicus brief in Barnett v. Raoul to Harmeet Dhillon’s personal appearance before the Seventh Circuit. But unforced errors by DOJ line attorneys continue to undermine that agenda. The latest example is a brief filed in the Eastern District of Missouri in Brown v. ATF, the major challenge to the National Firearms Act’s regulation of suppressors and short-barreled rifles. The brief misapplies Supreme Court precedent in ways difficult to reconcile with either Heller or Bruen — and somebody at the Department of Justice needs to get control of these filings.

The Case: Brown v. ATF

Brown v. ATF was filed in August 2025 by the Second Amendment Foundation, Firearms Policy Coalition, NRA, and American Suppressor Association, along with individual plaintiffs including Chris Brown. The lawsuit argues that suppressors and short-barreled rifles should be removed entirely from the NFA’s regulatory framework, particularly after the One Big Beautiful Bill Act zeroed out the $200 NFA excise tax on these items effective January 1, 2026. With the taxing power hook eliminated, plaintiffs contend that the remaining NFA registration regime lacks constitutional authorization and that these items are constitutionally protected arms under the Second Amendment.

The argument is straightforward: treat suppressors and short-barreled rifles the same as any ordinary handgun or semiautomatic rifle — no NFA registration, no special regulatory burden.

The DOJ’s First Error: Elevating Common Use to the Plain Text

The DOJ’s brief argues that the “common use” inquiry belongs at step one of the Bruen analysis — the plain text level — rather than step two. This matters enormously because of where the burden of proof falls.

Under Heller and Bruen, the plain text analysis is definitional. “Arms” includes anything that can be used offensively or defensively. Bruen extended the definition further, holding that “any instrument that facilitates armed self-defense” qualifies. A suppressor facilitates armed self-defense by protecting the user’s hearing during training and defensive encounters. A short-barreled rifle is, by definition, a rifle. These items satisfy the plain text with room to spare.

The “common use” test derives from the historical tradition of restricting “dangerous and unusual” weapons — the government’s burden to establish at step two. The DOJ’s move to place this burden on plaintiffs at step one inverts the entire Bruen framework.

Notably, the brief relies on authority from the Fourth, Seventh, and DC Circuits — among the most frequently reversed on Second Amendment questions. When the Trump DOJ cites circuits that routinely get it wrong, something has gone off the rails.

The DOJ’s Second Error: Misapplying the Facial Challenge Standard

The brief argues that because the NFA’s provisions could theoretically be applied to criminal misuse, the statute cannot be struck down on its face. This collapses the moment you apply it to Heller. The DC handgun ban was struck down facially — in its entirety. Under the DOJ’s logic, that result should have been impossible, because DC’s ban could also have been “applied” to criminals misusing handguns. But Justice Scalia did not ask whether the statute had some hypothetical valid application against a criminal; he asked whether the statute’s elements required proof of criminal conduct. DC’s ban did not. Neither does the NFA’s regulation of suppressors and short-barreled rifles. That is precisely why the statute is vulnerable to facial challenge.

The Registration Problem

The DOJ continues to defend the NFA’s registration regime by analogizing it to a shall-issue licensing system. But registration and licensing are constitutionally distinct categories. As then-Judge Brett Kavanaugh explained at length in his dissent in Heller II at the DC Court of Appeals in 2011, a registration requirement is a precursor to confiscation — a government-maintained record of who owns what — while a licensing regime merely verifies that an individual is not a prohibited person. The two serve fundamentally different governmental purposes and carry fundamentally different constitutional implications.

The Bigger Picture

The Trump administration, through Dhillon and the Civil Rights Division, has taken strong positions in cases like Barnett v. Raoul and Cheeseman v. Platkin. But the left hand does not know what the right hand is doing. While DOJ argues against arms bans in the Seventh Circuit, DOJ attorneys in Missouri file briefs contradicting the administration’s own doctrinal positions.

Someone at the Department of Justice needs to make clear that briefs inconsistent with Supreme Court precedent will not be tolerated. This is not rocket science. It is paint by numbers — and these lawyers keep coloring outside the lines.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The Trump administration has released its proposed fiscal year 2027 federal budget, and buried within the document are several provisions that represent meaningful advances for Second Amendment rights. This is not aspirational rhetoric. It is line-item funding directed at institutional infrastructure designed to protect the right to keep and bear arms — and to dismantle the regulatory apparatus that the Biden administration weaponized against lawful gun owners.

The DOJ’s Second Amendment Mandate

The budget opens its DOJ section with priorities that signal a fundamental reorientation of resources away from harassing law-abiding citizens and toward violent criminals. It includes a dedicated section on protecting constitutional rights, with the Second Amendment receiving explicit attention. The budget “affirms the president’s commitment to definitively protect the Second Amendment and other constitutional rights of citizens.” That language — “definitively” — suggests permanence, not half-measures.

$1.4 Million for the Second Amendment Rights Section

The marquee item is $1.4 million allocated to fund an office within the Civil Rights Division “solely dedicated to protecting Second Amendment rights from unlawful infringement on the right to bear arms and pursuing cases to definitively enshrine those rights in perpetuity.” This is the formal budgetary enshrinement of the Second Amendment Rights Section that Harmeet Dhillon — the Assistant Attorney General for the Civil Rights Division — announced in late 2025. Creating that unit was a significant institutional accomplishment by Dhillon and former Attorney General Pam Bondi. Locking it into the federal budget transforms it from an executive initiative into something Congress would have to affirmatively defund to eliminate.

A dedicated Second Amendment section provides a permanent institutional home, a point of contact for citizens whose rights are being violated, and a mechanism for accountability. When the government has a named office responsible for protecting a right, it becomes far easier to measure whether that office is doing its job.

$4.8 Million for Firearms Rights Restoration

The budget allocates $4.8 million to the Office of the Pardon Attorney’s firearms rights restoration initiative under 18 U.S.C. 925(c) — the provision allowing individuals prohibited from possessing firearms to petition for administrative restoration of their rights.

For decades, Congress effectively killed this program by inserting a rider into ATF appropriations bills prohibiting any funding for processing 925(c) applications. The political logic was bipartisan cynicism: Republicans did not want to be seen restoring gun rights to people with criminal records, and Democrats did not want anyone getting guns back. A federal statute remained on the books as a dead letter.

The Trump administration revived the program, transferred authority to the Office of the Pardon Attorney, and published proposed regulations. The budget allocation signals that the final rule is on its way and that infrastructure is being built to process what could be hundreds of thousands of applications.

Unwinding Biden-Era ATF Overreach

The budget directs the ATF to continue reversing Biden-era regulations that “effectively criminalized law-abiding gun ownership,” identifying four areas: universal background check requirements, the pistol brace rule that subjected lawful gun owners to up to ten years in prison for failing to register stabilizing braces, excessive restrictions on homemade firearms (the so-called “ghost guns”), and the revocation of federal firearms licenses from dealers on pretextual grounds.

Each of these represents a distinct regulatory abuse. The pistol brace rule alone turned millions of law-abiding gun owners into potential felons overnight. The FFL revocation campaign under the Biden ATF’s “zero tolerance” policy drove small dealers out of business for minor paperwork errors. The budget’s commitment to unwinding these policies provides the ATF with marching orders and the funding to execute them.

Targeting Violent Crime, Not Lawful Ownership

The budget redirects enforcement resources toward illegal firearms traffickers, violent crime in American cities, drug cartels, and federal prison security. This is the correct priority structure. Every dollar spent prosecuting a cartel firearms trafficker is a dollar that makes communities safer and reduces the likelihood of the sensationalized events that gun control advocates exploit to restrict the rights of law-abiding citizens.

The Proof Is in the Pudding

The budget is a proposal, not law. Congress must still act. But as a statement of presidential priorities, this document is significant. It puts institutional money behind institutional commitments, creates budget lines that future administrations would have to affirmatively zero out, and signals to every federal agency that the direction of travel is toward protecting rights — not restricting them.

The war for the right to keep and bear arms is fought in increments, and this budget represents a good day.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

A Predictable Result From an Unpredictable Framework

On April 3, 2026, the U.S. Court of Appeals for the First Circuit unanimously reversed a district court order enjoining Maine’s 72-hour waiting period for firearm purchases in Beckwith v. Frey. The opinion, authored by Judge Seth R. Aframe, represents the latest — and perhaps most analytically strained — effort by a federal appellate court to uphold a firearms restriction while nominally applying the framework established in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

The decision deepens an existing circuit split with the Tenth Circuit, which struck down New Mexico’s seven-day waiting period in Ortega v. Grisham, and may accelerate Supreme Court review.

Background

Maine enacted its 72-hour waiting period in 2024 following the October 2023 Lewiston mass shooting that killed eighteen people. The law requires a three-day delay between purchase and delivery of a firearm, with exemptions for law enforcement. Plaintiffs — individual gun owners, dealers, and shooting organizations — represented by Paul D. Clement and Erin E. Murphy, filed suit. The district court applied Bruen’s two-step framework, found the waiting period implicated the Second Amendment’s plain text, concluded that Maine had failed to identify a supporting historical tradition, and granted a preliminary injunction.

The First Circuit’s Novel Analytical Move

The panel held that Maine’s waiting period does not regulate conduct covered by the Second Amendment’s plain text because the law targets the acquisition of firearms — conduct that occurs “before a person keeps or carries a gun.”

This is analytically untenable. You cannot keep a firearm you have been prevented from possessing. The right to keep and bear arms necessarily encompasses the right to acquire them — just as the Seventh Circuit recognized in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), that the Second Amendment protects ancillary activities like firearms training and ammunition purchases. A three-day prohibition on taking possession of a lawfully purchased firearm is, functionally, a three-day ban on exercising the right itself.

The Incoherent “Burden” Category

Perhaps more troubling is the opinion’s attempt to create a middle tier within Bruen. The court acknowledged that laws falling outside the plain text may still “burden” the right to keep and bear arms, and that such laws are only “presumptively constitutional.” But this formulation is logically incoherent: if a regulation burdens the right to keep and bear arms, then by definition it touches conduct protected by the Second Amendment’s plain text.

The First Circuit has effectively invented a sub-constitutional holding pen — a category of regulations that restrict a fundamental right but escape meaningful judicial review. This is interest balancing by another name, precisely the methodology the Supreme Court rejected in Bruen and in District of Columbia v. Heller, 554 U.S. 570 (2008).

Interest Balancing Through the Back Door

The opinion’s reliance on social science reinforces this concern. The court devoted multiple pages to the purported benefits of cooling-off periods in reducing suicides and crimes of passion — the kind of empirical policy analysis that Bruen explicitly displaced. When a court begins by cataloging the social costs of firearms misuse, it is conducting means-ends scrutiny regardless of what label it applies.

Judge Aframe teaches First Amendment law at the University of New Hampshire. One wonders whether he would endorse a 72-hour waiting period before a citizen could publish an opinion piece or register to vote. The disparity in treatment between the First and Second Amendments is the point.

A Circuit Split That Demands Resolution

The First Circuit’s decision stands in direct tension with the Tenth Circuit’s ruling in Ortega v. Grisham, which struck down New Mexico’s waiting period on the ground that cooling-off periods lack any historical analogue in the founding era. With the circuits now divided, the case for Supreme Court review is strong. Clement and Murphy have the appellate firepower to bring this to the Court’s attention, and the doctrinal mess may provide exactly the kind of confusion the Court prefers to resolve sooner rather than later.

The Fundamental Problem

There is no historical tradition of imposing blanket waiting periods on the acquisition of firearms. Founding-era restrictions on arms possession were always individualized — tied to specific determinations of dangerousness, not applied as a universal condition on every citizen exercising a fundamental right. The First Circuit’s effort to avoid this straightforward conclusion required constructing an analytical framework the Supreme Court never endorsed and that contradicts Bruen’s clear instructions. The First Circuit’s reasoning is unlikely to survive.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The U.S. Attorney’s Office for the District of Columbia, led by Jeanine Pirro, has filed a brief agreeing that the D.C. Court of Appeals should rehear Benson v. United States en banc — the landmark decision striking down D.C.’s ban on magazines holding more than ten rounds. At first glance, this looks like a betrayal. It is not, exactly. But the legal analysis the Pirro office deployed to get there is flatly wrong on a critical point of Second Amendment law, and that error deserves careful examination.

The Good News First

Credit where it is due: the Pirro office has stated unequivocally that D.C.’s large-capacity magazine ban is unconstitutional under the Second Amendment. The office has not been enforcing the ban for months and has no intention of doing so going forward. On the merits — the question of whether the government can criminalize possession of magazines holding more than ten rounds — the Trump DOJ is on the right side. That is a significant and welcome position from a sitting U.S. Attorney.

Where Pirro Goes Off the Rails

The problem is the remedy. When the D.C. Court of Appeals’ three-judge panel struck down the magazine ban in its 2-1 ruling, it did not stop there. The court reasoned that because the magazine ban was unconstitutional, Tyree Benson could not have lawfully registered his firearm — registration in D.C. would have required compliance with an unconstitutional condition. The panel therefore vacated not only Benson’s magazine conviction but also his convictions for possessing an unregistered firearm and carrying without a license.

The Pirro office contends this remedy was too broad. Their argument: the magazine ban’s unconstitutionality should not excuse Benson from the separate obligations to register his firearm and obtain a license. They want to continue prosecuting those offenses and are concerned about the practical consequences — reportedly over 300 pending cases involve similar charges, and unwinding them could release individuals convicted under plea agreements.

The policy concern is understandable. But the answer is not to distort Second Amendment doctrine. If someone is a dangerous criminal, prove it at trial rather than leaning on constitutionally suspect shortcut charges.

The Facial Challenge Error

The most troubling portion of the brief concerns facial versus as-applied challenges. The Pirro office argues that the panel improperly conducted a facial challenge, citing United States v. Rahimi for the proposition that a facial challenge requires showing “no set of circumstances exists under which the act would be valid.” Under this logic, if the D.C. Council could hypothetically have passed a narrower statute — say, banning only magazines over fifty rounds — then the existing statute survives because it has some constitutional applications.

This gets the analysis exactly backwards.

The correct approach starts with the essential elements of the crime as written. D.C.’s law criminalizes possession of any magazine holding more than ten rounds. That is the only element the prosecution must prove beyond a reasonable doubt. The statute does not require proof that the defendant possessed a fifty-round drum rather than an eleven-round magazine. Because the statute as written sweeps in plainly protected conduct — possessing standard-capacity magazines in common use for lawful purposes — it fails on its face.

District of Columbia v. Heller itself demonstrates the point. The Court struck down D.C.’s handgun ban facially, even while acknowledging that bans on machine guns and felon-possession prohibitions remained valid. Hypothetical constitutional applications did not save the statute. The Pirro office’s brief asks the court to imagine a statute the D.C. Council never passed and use that hypothetical to rescue the one it did. That is not how facial challenges work.

The Bigger Picture

The silver lining is strategic context. Even if the en banc D.C. Court of Appeals were to narrow or reverse the panel’s ruling, the Third Circuit’s pending en banc decision in Cheeseman v. Platkin — challenging New Jersey’s assault weapons and magazine bans — may render the question academic. That case, recently argued before a full bench that includes newly confirmed Judge Jennifer Mascott, could produce the definitive circuit split needed to bring magazine and rifle ban cases before the Supreme Court this term. A Third Circuit ruling striking down New Jersey’s bans would create a conflict that the Court could not easily decline to resolve.

Still, the Pirro office’s brief is a missed opportunity. The Trump DOJ had a chance to let a clean Second Amendment victory stand and instead chose to re-litigate the remedy using a facial-challenge analysis that contradicts settled law. The correct position was straightforward: decline to seek en banc rehearing and prosecute violent offenders through substantive criminal charges rather than registration technicalities. The Second Amendment community should take the win on the merits — but keep a watchful eye on the DOJ’s remedial instincts.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

The United States Postal Service has published a proposed rule that would, for the first time in nearly a century, allow ordinary Americans to mail handguns through the federal postal system. The move follows a January 2026 memorandum opinion from the Department of Justice’s Office of Legal Counsel declaring that the longstanding federal ban on mailing handguns is unconstitutional. This is a significant and concrete expansion of Second Amendment rights delivered through the administrative process rather than the courts.

The Ban and Its Demise

Since 1927, 18 U.S.C. Section 1715 has classified handguns as “non-mailable,” prohibiting private citizens from sending them through the U.S. mail. Rifles and shotguns, meanwhile, could be mailed under certain conditions. The practical effect was that a law-abiding gun owner could not use the Postal Service to ship a handgun to themselves at a second home or send one out for repair — even though these are clearly lawful purposes involving constitutionally protected arms.

On January 15, 2026, the Office of Legal Counsel changed the calculus. At the request of Attorney General Pam Bondi, the OLC evaluated Section 1715 under the analytical framework established in New York State Rifle & Pistol Association, Inc. v. Bruen. Its conclusion was unequivocal: the statute “is unconstitutional as applied to constitutionally protected firearms, including handguns, because it serves an illegitimate purpose and is inconsistent with the Nation’s tradition of firearm regulation.”

The reasoning was straightforward. Under Bruen, a firearms regulation must have a historical analog in this nation’s tradition of firearm regulation to survive scrutiny. The OLC found none. And since District of Columbia v. Heller established handguns as the “quintessential self-defense weapon,” singling them out for exclusion from the mail while permitting long guns was constitutionally indefensible. The OLC further concluded that the executive branch may not enforce Section 1715 against constitutionally protected firearms and directed the Postal Service to modify its regulations accordingly.

The USPS Proposed Rule

The Postal Service has now done exactly that. In a Federal Register notice published April 2, 2026, the USPS proposed revisions to Publication 52, its internal mailability standards. The key change: lawful handguns would become mailable under the same terms and conditions that currently govern the mailing of lawful rifles and shotguns. Mailed firearms must still be unloaded, and items regulated under the National Firearms Act — machine guns, short-barreled rifles, silencers, and the like — remain non-mailable except between authorized persons. The proposed rule includes a public comment period before final promulgation.

Why the Process Matters

The sequence of events here illustrates how executive branch action can vindicate constitutional rights without waiting for a court order. Attorney General Bondi requested the OLC opinion. The OLC — staffed largely by former Supreme Court clerks and widely regarded as one of the most intellectually rigorous offices in the federal government — issued a formal memorandum concluding the statute was unconstitutional. That opinion carries binding weight throughout the executive branch, prompting the Postal Service, a separate agency, to initiate rulemaking to bring its regulations into compliance with the Constitution.

This is the “brick by brick” process at work. One favorable legal determination becomes the foundation for the next concrete policy change. The OLC opinion did not just sit on a shelf — it produced a real-world regulatory outcome that will expand the ability of millions of Americans to transport constitutionally protected arms through the mail.

Looking Ahead

Once the proposed rule is finalized, Americans will be able to mail handguns through the USPS for lawful purposes under the same framework that has governed long-gun shipments for decades. The broader significance, however, is the executive branch’s willingness to apply Bruen’s historical-tradition test proactively — identifying and dismantling federal regulations that lack historical justification rather than waiting for litigation to force the issue. That posture, maintained consistently, could have ripple effects across numerous federal firearms regulations that similarly fail the Bruen standard.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.

With Attorney General Pam Bondi out at the Department of Justice, the Second Amendment community faces an urgent question: who should replace her? The wrong pick could squander the most pro-gun DOJ in American history. Here is a frank assessment of who should — and should not — be the next attorney general, viewed through the lens of firearms rights.

Credit Where It Is Due

Under Bondi and Harmeet Dhillon, who leads the Civil Rights Division, the DOJ compiled an unprecedented pro-Second Amendment track record. Dhillon personally argued before the Seventh Circuit in an assault weapons ban challenge. The DOJ sued the District of Columbia over its AR-15 bans and standard-capacity magazine restrictions. It sued California licensing jurisdictions for excessive delays. It established a dedicated Second Amendment task force — a historic first.

Bondi did not cause the DOJ’s Second Amendment missteps. But she failed to stop them, likely because she did not fully grasp the strategic complexity of the litigation decisions being made beneath her.

Who Should Not Get the Job

Todd Blanche and D. John Sauer. The deputy attorney general and solicitor general, respectively, are talented lawyers. Blanche is a former federal prosecutor out of the Southern District of New York, and Sauer clerked for Justice Antonin Scalia. Neither is a bad person or a bad lawyer.

But there is a strong case that the DOJ’s worst Second Amendment decisions originated from their operations. It was the Solicitor General’s office that pushed United States v. Rahimi to the Supreme Court — a case involving a defendant who admitted to cocaine and marijuana use and had deeply unsympathetic facts. Far stronger vehicles were available: Range v. Attorney General in the Third Circuit presented a sympathetic defendant whose only offense was a decades-old food stamp violation, and Reese v. ATF in the Fifth Circuit offered an ideal vehicle on young adult gun rights for 18-to-20-year-olds.

Bad facts make bad law. Justices Alito and Roberts are law-and-order jurists who do not look kindly on drug-related defendants. Pushing Rahimi when sympathetic alternatives existed was a strategic blunder. Elevating the people likely responsible to run the entire department would be a mistake.

Harmeet Dhillon. This recommendation comes from admiration, not criticism. Dhillon is a force of nature at the Civil Rights Division, doing groundbreaking work on voting integrity, religious liberty, anti-discrimination enforcement, and Second Amendment advocacy. Pulling her out to make her attorney general — where she would be consumed by death penalty cases, congressional testimony, sentencing guidelines, and managing dozens of U.S. Attorney’s offices — would be a terrible waste of her focused effectiveness. The best salesperson is not always the right sales manager. Dhillon should stay where she is.

Who Should Get Serious Consideration

Lee Zeldin. The EPA administrator and former New York congressman has demonstrated exactly the qualities needed. Zeldin proved at the EPA that he will confront entrenched bureaucratic resistance, most notably by dismantling the endangerment finding under the Clean Air Act. He carries an A rating from the NRA, opposes assault weapons bans, supports concealed carry, and took a strong stance against Operation Choke Point. The trade-off of losing him at EPA may be worth making.

The Senate Math Problem

Any nominee must survive Senate confirmation, and the math is tighter than it looks. The Republican majority is not a MAGA majority. Senator Lisa Murkowski of Alaska is unreliable on Trump nominees. Senator Susan Collins of Maine faces a difficult reelection and may need to distance herself on a high-profile vote. Senator Thom Tillis of North Carolina, now retiring after clashing with Trump, has little incentive to cooperate. And if Ken Paxton defeats John Cornyn in the Texas Senate runoff, Cornyn could cast a spite vote on his way out.

This was the danger of removing Bondi in the first place. There was never a guarantee the Second Amendment community would get someone better. The next attorney general must clear a confirmation gauntlet with very little margin for error.

What Matters Most

Whoever fills this role needs one quality above all others: the willingness to override career DOJ attorneys and the Solicitor General’s office when they push the wrong cases to the Supreme Court. The affirmative posture Bondi established must be preserved, but paired with strategic control over which cases reach the high court. Supreme Court precedent cannot be undone by the next administration. Getting the wrong case before the Court is a mistake that echoes for decades.

This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.