The Trump Department of Justice just handed the Second Amendment community one of the most consequential wins in years — not by winning a case, but by choosing not to fight one. On June 27, 2025, the deadline passed for Solicitor General D. John Sauer to petition the Supreme Court in Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, No. 23-30033 (5th Cir. Jan. 30, 2025). The DOJ let it expire without filing. That silence is deafening — in the best possible way.
What the Fifth Circuit Actually Held
In January, a unanimous Fifth Circuit panel struck down 18 U.S.C. §§ 922(b)(1) and (c)(1) — the federal statutes that prohibited Federal Firearms Licensees from selling handguns to adults aged 18 to 20. The court applied the Bruen text-and-history framework and held the restrictions facially unconstitutional under the Second Amendment. Not just as applied to the plaintiffs. Facially. That is the highest possible form of relief in a constitutional challenge — it means the law is void in all applications, not merely in the narrow circumstances of the litigants before the court.
The historical record the court examined left little room for doubt. The Militia Act of 1792, passed just months after the Second Amendment’s ratification, required men aged 18 to 45 to arm themselves and report for militia musters with their own privately owned firearms. That foundational evidence makes it extraordinarily difficult to argue that 18-to-20-year-olds fall outside “the people” whose right to keep and bear arms the Second Amendment protects.
Why Not Seeking Cert Is Historic
I want to be direct: in my entire time as a member of the United States Supreme Court Bar, I cannot recall a prior instance where a federal statute was declared facially unconstitutional by a lower court and the solicitor general of the United States simply declined to seek review. This is not a normal occurrence.
The closest analogy I can point to is United States v. Windsor, 570 U.S. 744 (2013), the DOMA case. There, Solicitor General Donald Verrilli sought cert on behalf of the Obama administration — but only so the government could argue the other side and urge the Court to strike the law down. That is a very different posture from Reese, where the DOJ did not seek cert at all. There was no attempt to flip, no attempt to vindicate the statute. Just silence. Legally, that silence now means the Fifth Circuit’s pro-Second Amendment ruling is binding precedent in Texas, Louisiana, and Mississippi, and the only entity with power to undo it is the Supreme Court itself — and only if someone with standing asks it to.
The Reese–Range Distinction Matters
Some will compare this to Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023), where the Trump DOJ also declined to seek cert after the Third Circuit ruled that non-violent felon Bryan Range could not be permanently disarmed. That was a meaningful win. But Reese is bigger, and the reason is straightforward: Range was an as-applied ruling — it protected Bryan Range specifically, based on his particular circumstances. Reese is a facial ruling. The statute is unconstitutional across the board, not just in the sympathetic case of one plaintiff. The precedential weight of Reese is categorically heavier.
Personnel Is Policy — And These People Delivered
None of this happens without the right people in place. Solicitor General John Sauer, confirmed by the Senate 52-45 in April 2025, is exactly the kind of principled advocate this moment required. Harmeet Dhillon at the Civil Rights Division, who established a dedicated Second Amendment section within DOJ, reflects the same institutional commitment. I said before the election and after it that Donald Trump would be the most pro-Second Amendment president in modern American history. Some thought I was engaging in hyperbole. Reese is Exhibit A.
Here is my honest read: if any other Republican had been in office — George W. Bush, George H.W. Bush, Ronald Reagan — his solicitor general almost certainly would have sought cert. Not out of hostility to gun rights, but out of a law-and-order instinct to defend validly enacted federal statutes. Trump’s DOJ did the opposite.
What Comes Next
The elephant in the room is the circuit split. Chief Judge William H. Pryor Jr. of the Eleventh Circuit wrote an 8-4 en banc opinion in NRA v. Bondi (March 14, 2025) upholding Florida’s firearm purchase ban for under-21s. With the Fifth Circuit saying one thing and the Eleventh saying another, the question of young-adult Second Amendment rights is not permanently resolved at the national level. The Supreme Court will address this split eventually.
My read is that the constitutional argument is firmly on our side. The Militia Act of 1792 alone rebuts any claim that the Founding generation treated 18-to-20-year-olds as outside the Second Amendment’s protection. Even if one accepts the anti-gunner framing that the historical principle is “minors can be disarmed,” that principle stops at 18 — because 18-year-olds are not minors under any current legal standard. Either way, we should win. But I will not pretend guarantees exist. Judge Pryor’s ruling in NRA v. Bondi is proof that talented conservative judges can reach the wrong conclusion. What the Trump DOJ accomplished in Reese is locking in a major precedent without giving a potentially unpredictable Supreme Court the chance to muddy the waters.
This is a brick in the wall. Build enough bricks, and the wall protects everyone.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.