The U.S. Department of Justice just did something I have never seen before: it declared a federal gun control law unconstitutional. Not a state law. A federal statute — 18 U.S.C. § 1715 — the 1927-era prohibition on mailing concealable handguns through the United States Postal Service. The Office of Legal Counsel, under Attorney General Pamela Bondi and the Trump administration, issued a formal memorandum opinion concluding that § 1715 violates the Second Amendment and that the executive branch may not enforce it against law-abiding citizens shipping or receiving constitutionally protected firearms.
Brick by brick. This is the next one.
What the OLC Memo Actually Says
The Office of Legal Counsel is the DOJ’s in-house constitutional brain trust. When the OLC issues a memorandum opinion, it binds the executive branch. This isn’t a press release or a policy preference — it carries legal weight.
The memo’s central holding is clean and powerful:
“Section 1715 regulates the ability to transport, receive, and maintain constitutionally protected firearms, which burdens the right protected by the Second Amendment. But section 1715’s purpose and burden find no analog in this nation’s history and tradition of firearms regulation.”
That last clause is straight Bruen — New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). No historical analog, no constitutionally valid regulation. The memo applies the text-and-history test Justice Thomas wrote in Bruen and finds that a law from 1927 — nearly a century after the Founding — has no colonial-era or early-republic parallel that would justify it. The ripple effect from Bruen keeps spreading.
Why Mailing a Handgun Is a Constitutional Right
Here is where the memo becomes something more than a one-off statute kill. The OLC builds out a detailed framework for what I call ancillary rights — the rights necessarily implied by the plain text of the Second Amendment.
The right to keep and bear arms doesn’t exist in a vacuum. You have to acquire the arm before you can keep it. You have to receive it. You have to maintain it. You have to train with it. The memo cites Justice Thomas’s solo concurrence in Luis v. United States, 578 U.S. 5 (2016), for the principle that “Constitutional rights implicitly protect those closely related acts necessary to their exercise.” Applied here:
“The receipt of a weapon is almost always a necessary predicate to both keeping and bearing a weapon. Yet, section 1715 precludes an ordinary person from ever receiving a firearm directly in the mail, even if the seller or donor lives in the same state as the recipient.”
The memo goes further. It recognizes that the Second Amendment protects target shooting, firearm training, and hunting. It protects the right to learn how to handle a firearm. It protects the right to maintain firearms in working condition — meaning if you need to ship your gun to a gunsmith or back to the manufacturer for repairs, § 1715 stood as an unconstitutional barrier to that too.
I have been arguing these ancillary rights for years at this channel. To see the OLC articulate them in a formal legal opinion is enormously significant.
The Travel Trap That Made Mailing the Only Option
The memo makes a point I have hammered here repeatedly: for millions of American gun owners, mailing a handgun isn’t a convenience — it’s the only constitutional option left.
The OLC walks through three scenarios. A Californian vacationing in Vermont who flies into New York faces arrest under New York’s handgun licensing law even if the firearm is properly stowed in checked luggage. A driver going from Wisconsin to Michigan who stops in Chicago for two days loses the federal safe-harbor protection of 18 U.S.C. § 926A — added by the Firearms Owners’ Protection Act, Pub. L. 99-308 (1986) — because the extended break-in travel breaks continuous transit. A bus passenger from Washington, D.C., to Philadelphia can’t get the bus company to accept a firearm as luggage at all.
In each scenario, the law leaves the citizen with no lawful way to travel with a firearm. The USPS mail option was the last viable path — and § 1715 slammed that door shut too. The OLC correctly concludes that a statute that makes it practically impossible to exercise a constitutional right is itself unconstitutional.
Roberts and Kavanaugh Would Sign Off
My read is that this analysis would get six votes at the Supreme Court, and probably more. Chief Justice John G. Roberts, Jr., and Justice Brett M. Kavanaugh — sometimes seen as the court’s center of gravity on 2A cases — should have no trouble with the Bruen application here. The historical record for § 1715 is thin; the practical burden on law-abiding gun owners is real and documented; and the ancillary-rights framework tracks directly from Heller — District of Columbia v. Heller, 554 U.S. 570 (2008) — forward.
The OLC memo will almost certainly appear as authority in federal litigation the moment a defendant challenges a § 1715 prosecution. That’s how these opinions get operationalized.
The Bigger Picture: Federal Laws Are Now on the Table
Up to now, the Trump DOJ has mostly been in the business of targeting state gun control laws — the low-hanging fruit. State bans on common firearms, magazine restrictions, carry prohibitions. Important work, and I applaud every bit of it. But this memo signals a shift. The administration is now willing to look at federal statutes through the Bruen lens and declare them unconstitutional when the historical record doesn’t support them.
That is a sea change. There are other federal gun laws that deserve the same scrutiny. The OLC just showed it has the institutional courage to do the analysis. Brick by brick, we build the wall around the Second Amendment.
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.