The Trump DOJ just filed a motion asking to participate in oral argument in Rhode v. Bonta, No. 24-542 (9th Cir.) — the Ninth Circuit en banc case challenging California’s ammunition background check regime. This isn’t just a win on the merits of one case. It is a signal about where the fight for the Second Amendment is headed and why.
What the DOJ Actually Filed — and Why It Matters
On January 5, 2026, the Department of Justice under AG Pam Bondi and Assistant Attorney General for Civil Rights Harmeet Dhillon filed an amicus brief in Rhode v. Bonta arguing that California’s ammunition background check law — enacted via Proposition 63 and in force since July 1, 2019 — is unconstitutional under the Second Amendment. Days later, DOJ moved to participate at oral argument for five minutes, time seeded by the plaintiffs-appellees. Kim Rhode, the six-time Olympic shooting medalist who is the named plaintiff, and her co-plaintiffs consented.
The DOJ’s position is straightforward and important: ammunition falls within the plain text of “arms,” and the right to “keep” arms necessarily encompasses the right to acquire them. As their motion states, California’s background check regime “necessarily implicates the plain text of the Second Amendment” and “violates the Second Amendment because it advances an illegitimate purpose.”
Two lower courts — the U.S. District Court for the Southern District of California and a three-judge Ninth Circuit panel — already ruled for the Second Amendment in this case. The en banc Ninth Circuit granted rehearing in December 2025 and has scheduled argument for the week of March 23, 2026. We all know what en banc rehearings in the Ninth Circuit usually mean when a Second Amendment ruling goes our way: delay, reversal, and another trip to the Supreme Court. But now DOJ is walking into that courtroom with us.
The Strategic Logic Behind the DOJ’s Approach
I want to address the critics who say the Trump administration isn’t doing enough. You can have that debate, but let me explain what I think is actually going on — and why it makes sense even if it isn’t everything we’d want.
The DOJ appears to be laser-focused on knocking out state gun control laws rather than challenging federal ones. Look at the pattern: amicus briefs and courtroom participation in Rhode v. Bonta (California), Barnett v. Raoul, No. 23-3166 (7th Cir.) challenging Illinois’s assault-weapons ban, Cheeseman v. Platkin before the Third Circuit targeting New Jersey’s assault-firearms ban, and Wolford v. Lopez, No. 24-1046, the Hawaii concealed-carry case now before the Supreme Court. Meanwhile, DOJ has been quieter on challenges to federal gun statutes.
My read is that this reflects a sober assessment of the current Supreme Court. Look at what the Court has already done against state laws: Heller struck down D.C.’s handgun ban, McDonald v. City of Chicago, 561 U.S. 742 (2010), incorporated the Second Amendment against the states, Bruen, 597 U.S. 1 (2022), killed New York’s “proper cause” licensing requirement, and Caetano v. Massachusetts, 577 U.S. 411 (2016), protected stun guns. The pattern is clear. In contrast, United States v. Rahimi, 602 U.S. ___ (2024), upheld a federal firearm prohibition 8-1, with only Justice Thomas dissenting.
Justices Kavanaugh, Barrett, and Chief Justice Roberts appear more willing to strike state gun laws than federal ones. Charging headlong into federal statutes right now risks creating bad precedent that could set us back a decade. I don’t love every aspect of this calculus, but I understand it.
The Precedent Ladder: Learning From the Gay Rights Playbook
Here is where this story gets bigger than ammunition. Winning Rhode v. Bonta would establish two foundational precedents: first, that “arms” under the Second Amendment includes ammunition; second, that the right to “keep” arms encompasses the right to acquire them. Those might sound technical, but they are building blocks for the next round of fights.
Think about how the gay rights movement built their constitutional victories brick by brick. Bowers v. Hardwick, 478 U.S. 186 (1986), upheld anti-sodomy laws. Then Romer v. Evans, 517 U.S. 620 (1996), struck down Colorado’s Amendment 2. Lawrence v. Texas, 539 U.S. 558 (2003), overruled Bowers and recognized a right to sexual privacy. United States v. Windsor, 570 U.S. 744 (2013), struck down Section 3 of DOMA. And finally, Obergefell v. Hodges, 576 U.S. 644 (2015), recognized a constitutional right to same-sex marriage, 5-4. That took nearly thirty years of incremental wins.
We have it easier in one critical respect: the text of the Second Amendment is actually there. It says what it says. But we still have to build the precedent ladder the same way. Win the right to acquire ammunition, and you strengthen the future argument for the right to manufacture your own firearm. Win Rhode, and you make Barnett easier. Win Barnett, and you make the next federal challenge more viable. That’s how constitutional law actually works.
What Comes Next
If the en banc Ninth Circuit rules against us — and the odds of that court doing the right thing on its own are not great — this case is on a glide path to the Supreme Court. A circuit conflict or a clear repudiation of Bruen’s methodology by the en banc court would make cert more likely. Having DOJ on record in the Ninth Circuit arguing for our position makes that SCOTUS play even stronger.
Wars are won battle by battle. The DOJ walking into the Ninth Circuit on our behalf in Rhode v. Bonta is a battle. It’s not the end. But it is exactly the kind of skirmish we need to win to get where we’re going.
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.