Three federal judges just stepped into the public square in a remarkable way. Judge Elizabeth L. Branch (Eleventh Circuit), Judge Robert L. Wilkins (D.C. Circuit), and District Court Judge Trevor N. McFadden published an op-ed in The Wall Street Journal backing Sen. Tom Cotton’s (R-AR) Protect Our Prosecutors and Judges Act, S. 2993. The bill would allow federal judges and prosecutors who have completed law enforcement firearms training to carry concealed firearms across state lines — extending the same right active and retired law enforcement already have under the Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 U.S.C. §§ 926B–926C. The trend remains our friend, but there is a lot to unpack here.
The Judges’ Argument — and Why It Sounds Familiar
The op-ed opens by invoking Chief Justice John G. Roberts, Jr.’s 2024 Year-End Report on the Federal Judiciary, in which he warned that threats against federal judges have more than tripled in the past decade. Judges Branch, Wilkins, and McFadden write:
Recent years have seen a foiled assassination attempt on a Supreme Court justice and a bullet meant for a federal judge that instead killed her son.
They are referring to the June 2022 attempt on Justice Brett M. Kavanaugh’s life and the July 2020 murder of Daniel Anderl — son of U.S. District Judge Esther Salas — at her New Jersey home. The judges are right that the threat environment has escalated. Their central claim follows logically: federal judges travel constantly — riding circuit, sitting by designation, attending conferences — and the patchwork of state carry laws leaves them disarmed precisely when most exposed. Being unfamiliar with “often complex gun laws in other jurisdictions, many judges often reluctantly leave their weapons at home when traveling,” the op-ed states.
Does that argument sound familiar? It should. It’s what every American gun owner has been saying for decades.
This Is Exactly the Nationwide Reciprocity Argument
The judges may not realize it, but they have just articulated, in the pages of The Wall Street Journal, the core case for universal nationwide carry for all law-abiding citizens. Their own logic is devastating to the current patchwork system. You don’t need to figure out the First Amendment laws of every state before you speak. You don’t consult a 50-state compliance guide before exercising your Fourth or Fifth Amendment rights. Those constitutional protections travel with you. If the Second Amendment is a fundamental right — and Heller and Bruen say it is — then it should travel with you too, not get checked at the state line like a bag of fruit at the California border.
My view: I support this legislation, even though it creates a temporary two-tiered system that I find philosophically uncomfortable. Here’s why.
The Case for Supporting the Cotton Bill — Despite the Two-Tier Problem
Yes, extending carry rights to judges and prosecutors before extending them to ordinary Americans creates a special class of rights-holders. I don’t like that. I think every law-abiding American should be able to carry nationwide right now. But the political reality on the ground is what it is, and incremental progress has been the engine of the Second Amendment movement for thirty years.
When I was growing up, there was exactly one permitless-carry state in this country: Vermont. Today there are 29, and when North Carolina finally gets its House veto override on S.B. 50 (“Freedom to Carry NC”) across the finish line, that will be 30. That didn’t happen overnight. It happened step by step, state by state.
The Cotton bill advances the same logic. Every new class of carriers — law enforcement under LEOSA, then judges and prosecutors under this bill — expands what I call the Overton window on carry rights. It makes concealed carry more normal, more mainstream, harder to caricature. And critically, it builds a political argument: if police, retired police, judges, and prosecutors all carry nationwide and nothing bad happens, how does anyone justify denying that same right to the rest of us?
The Real Prize: Judges Who Know What a Gun Actually Is
There’s a deeper reason I want this bill to pass. When I started my career at Skadden, Arps, Slate, Meagher & Flom, part of my job was reviewing the judicial “red book” — biographies of judges my colleagues would appear before. In the late 1990s, those judges had lived lives: bomber pilots, combat veterans, private practitioners who represented real people with real problems.
Today’s federal judiciary is increasingly drawn from a narrower pipeline. Elite prep school, elite college, elite law school, government clerkship, DOJ posting, judgeship — a career spent entirely inside government institutions. That includes guns. A judge who grew up in Connecticut without guns, went to Princeton without guns, attended NYU Law without guns, and clerked without guns may be a sincere originalist and still have no practical understanding of what it means to carry every day.
That gap is one of the anti-gun movement’s greatest litigation assets. Confuse a judge about the difference between a semi-automatic and an automatic, make a gun sound like some alien terrifying object, and you win cases you should lose. Judge Lawrence VanDyke on the Ninth Circuit is the model of the opposite: deep firearms familiarity that cannot be spooked by hyperbole. We need more of that on the federal bench.
The Bottom Line
My read is that the Protect Our Prosecutors and Judges Act is a net win for the Second Amendment, even with its limitations. It applies only to the judge while traveling, not to family members — a gap thoughtful judges will notice. It builds the carry-normalization trend running in our favor for three decades. And it puts guns in the hands of the people who decide our cases, giving them first-person experience that no amicus brief can replicate.
The trend remains our friend. The Overton window keeps opening. And three federal judges just helped push it a little wider.
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.