Yesterday I covered the breaking news: the Trump administration’s Office of Legal Counsel issued an 11-page memo concluding that 18 U.S.C. § 1715 — the 1927 federal law banning ordinary Americans from mailing handguns through the U.S. Postal Service — is unconstitutional under the Second Amendment. That narrow holding is great. But it is not the story. The Second Amendment community is in danger of missing five downstream rights this memo puts squarely on the table, built into its reasoning and citations, that will matter long after the postal headline fades.
The Memo Is More Than Its Holding
When the Supreme Court decides a case, two things happen simultaneously. Someone wins — that matters to the parties. But the Court’s reasoning, citations, and dicta become the raw material every lower court reaches for in the next hundred cases. The same logic applies here. The narrow holding is that § 1715 cannot stand. But T. Elliot Gaiser, the Assistant Attorney General who authored the memo, packed it with language that will do heavy lifting for years. My job today is to unpack that language.
Right One: Group Training Is Constitutionally Protected
Anti-gun states have been aggressively targeting what they call “militia activities” — which is really just two or more people getting together to train with firearms. The theory is that organized firearms training is somehow dangerous and regulable. The OLC memo directly undercuts that argument by citing Thomas McIntyre Cooley, the 19th-century constitutional scholar and Michigan Supreme Court Justice whose treatises were the most influential of the post-Civil War era. The memo quotes Cooley’s The General Principles of Constitutional Law in the United States of America (1880) for the proposition that bearing arms “implies the right to meet for voluntary discipline in arms.”
Think about the logic for a moment. Whatever I can do constitutionally by myself, I can do with other people. I can pray alone or in a church. I can petition the government individually or with my neighbors. If I have the right to keep and bear arms, I can exercise that right alone at the range or alongside others in organized training. The OLC memo makes that explicit — and now it is the stated position of the Trump Justice Department.
Right Two: No More Gun-Owner Discrimination
The Biden administration weaponized Operation Choke Point to debank the firearms industry and treat gun owners as second-class citizens. This OLC memo goes directly at that mindset. The memo found § 1715 constitutionally deficient in part because it created two tiers of Americans: FFLs who could use USPS to ship handguns, and ordinary gun owners who could not. The government cannot carve out “ordinary disabilities” for regular citizens while giving special carve-outs to favored commercial actors. That reasoning extends well beyond the postal context. If the government cannot impose disparate burdens on ordinary gun owners vis-à-vis licensed dealers, it cannot do so in banking, payment processing, or any other distribution channel either.
Right Three: Practical Portability — the Path to Reciprocity
This is the one I am most excited about. The memo explicitly recognizes a right to practical portability — the ability to actually bring your firearm to where you are going. It gives the example of a Wisconsin resident who wants to fly through New York to ski in Vermont, a permitless-carry state. New York airports arrest travelers with firearms. So the person ships the gun directly to Vermont, where it will be waiting. The memo says that is constitutionally protected.
But read between the lines. The DOJ is acknowledging that your Second Amendment rights travel with you. I can go to California and attend church — my First Amendment right moves with me. I can travel to Washington State and criticize Governor Bob Ferguson to my heart’s content — free speech moves with me. Why doesn’t the Second Amendment do the same? The OLC memo is laying that groundwork. This is an island-hopping campaign, and practical portability is one of the islands we just seized.
Right Four: The Right to Repair
The OLC memo states explicitly that individuals have a constitutional right to “maintain firearms in a working condition.” That sounds obvious until you see how anti-gun jurisdictions use regulations — ammo restrictions, parts bans, serialization mandates — to constructively disarm people. Under District of Columbia v. Heller, 554 U.S. 570 (2008), a handgun must be “ready for immediate use.” You cannot have a ready handgun if you cannot repair it. The OLC memo confirms what Heller implies: the right to maintain your firearm is part of the plain text of the Second Amendment.
Right Five: The Right to Acquire — and the Chessboard Beyond
The memo states on page six that “the receipt of a firearm is almost always a necessary predicate for the right to keep and to bear arms.” You cannot keep what you never acquired. Under Heller and New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), the government must show a historical analog for any regulation that burdens a Second Amendment right. There is no historical analog for requiring a non-resident to ship a handgun to their home state rather than taking in-person possession — you can buy a car, a Bible, or a boat out of state and take it home on the spot. The right to acquire, now stated in an OLC memo, sets up the broader attack on the interstate handgun purchase restriction.
I am playing chess here, and so is the Trump DOJ. Every one of these five rights — group training, anti-discrimination, practical portability, right to repair, right to acquire — is a beachhead. That is how we restore the full scope of 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.