Few people in this space have the historical perspective that Stephen Halbrook does. He has been litigating and writing about the Second Amendment since the 1970s — argued and won Printz v. United States before the Supreme Court, was cited by Justice Antonin Scalia in Heller, and authored two essential books for anyone serious about where gun rights stand today: The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? and America’s Rifle: The Case for the AR-15. When I want a long view on whether we’re winning or losing the war — not just the latest battle — Stephen is the person I call.
Where We Started: The Dark Ages of the Second Amendment
I asked Stephen to walk me back to the baseline because I think most people in the modern gun-rights movement have no memory of how bad it was. His answer was sobering.
“If you go back to the ’60s, you have the drive for radical gun control. Fortunately, Congress didn’t enact some of the most radical provisions — like comprehensive registration. You have the Gun Control Act of ‘68 and then a lot of state laws being enacted, and then you have ATF coming on the scene and going hog wild under the Carter administration, violating people’s rights to keep and bear arms.”
— Stephen P. Halbrook
The courts in that era weren’t just unhelpful — they were actively making things up. Stephen put it plainly: the prevailing judicial line was that the Second Amendment created a collective militia right and protected no individual right whatsoever. That wasn’t a fringe academic view; it was the ruling consensus across the federal circuits.
Stephen went to law school in the 1970s. There was, he told me, no mention of the Second Amendment in the curriculum. The student newspaper ran anti-gun editorials and nobody pushed back. That is the baseline from which this whole movement has climbed.
The Turning Points: FOPA, Emerson, Heller, Bruen
Stephen walked me through the sequence of wins that changed the landscape. The Firearm Owners’ Protection Act of 1986, signed by President Reagan, reined in ATF’s most abusive enforcement practices and marked the first serious legislative rollback of the Gun Control Act of 1968. It wasn’t everything, but it was a tidal wave compared to what came before.
Then came United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) — the first federal appellate court to formally adopt the individual-rights reading of the Second Amendment. That decision laid the intellectual groundwork for Justice Scalia’s majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), which finally put the individual-right holding on the books at the Supreme Court level. And then New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), established the right to carry in public for self-defense and threw out the interest-balancing tests lower courts had been using to gut Heller for fourteen years.
The Institutional Shift: Law Schools, the Federalist Society, and ATF
One point Stephen made that I want to amplify: the transformation isn’t just in the case law. The institution of legal education has shifted. The Federalist Society now has chapters at virtually every major law school. Second Amendment law is taught as a legitimate field of constitutional inquiry at a number of schools. That pipeline matters enormously — it means the judges and clerks coming out of the system over the next generation will have been exposed to serious originalist scholarship, not just the old collective-right mythology.
And at the regulatory level, the Trump administration appointed Robert Leider — a Second Amendment legal scholar and former George Mason University law professor — as Chief Counsel at ATF. That is not a small thing. The agency that spent the Biden years stretching the definition of “firearm” through regulation, yanking dealer licenses for single inadvertent paperwork errors, and treating gun owners as presumptive criminals now has someone running its legal policy who has written serious scholarly work on the individual right to bear arms.
Stephen was candid: ATF still has a statutory duty to enforce the Gun Control Act, and there are provisions in that law that are simply not good. But the direction has changed.
The Honest Assessment: Battles, Not the War
I do not want to oversell this. I feel the frustration myself. The states where Democrats hold trifectas — California, New York, Illinois, New Jersey, Washington, Colorado, Virginia, New Mexico — are still running an anti-gun legislative blitz. Judge J. Harvie Wilkinson III on the Fourth Circuit, the usual suspects in Boston on the First Circuit, and the Ninth Circuit’s en banc games are still producing rulings that would have embarrassed any serious jurist who read Bruen. Those losses are real and they matter.
But Stephen’s framing is the right one: we are in a war, not a single battle. Anti-gun money is now funneled almost entirely into those captured states because the movement is accomplishing almost nothing at the federal level and nothing in Republican-controlled states. That concentration is a sign of weakness, not strength.
The trend is our friend. The legal academy has moved. The judiciary’s pipeline has moved. ATF leadership has moved. The Supreme Court has moved — twice, in landmark fashion. The baseline in 1970 was zero. The baseline today is Heller and Bruen and a fighting chance in courts that used to laugh Second Amendment claims out of the room.
We have a lot of work left. But we should understand how far we have already come.
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.