The Trump Department of Justice seems to have a methodology problem — and it keeps showing up in Second Amendment briefs filed by career attorneys operating without oversight from senior political appointees. The latest example comes from the Eleventh Circuit, where the government’s brief in United States v. Alsenat fundamentally misapplies the two-step framework the Supreme Court established in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). This is not an isolated incident. It is a pattern that, if it continues, would risk lasting damage to Second Amendment jurisprudence.
The Alsenat Case and the Machine Gun Question
Maxon Alsenat pleaded guilty to possessing a machine gun in violation of 18 U.S.C. 922(o) after selling conversion devices to an undercover agent. He challenged his conviction on Second Amendment grounds before the Eleventh Circuit, which heard oral argument on April 8, 2026. The core question: does the Second Amendment’s plain text cover machine guns?
Under Bruen, the analysis proceeds in two steps. First, the court asks whether the Second Amendment’s plain text covers the claimant’s conduct — a definitional inquiry about whether the item qualifies as a “bearable arm.” Second, the burden shifts to the government to demonstrate that its regulation is consistent with the nation’s historical tradition of firearms regulation.
The DOJ brief collapses these steps into one. It argues that “the Second Amendment’s text does not preclude section 922’s regulation of machine guns because the amendment’s protection only applies to weapons in common use for lawful purposes.” The brief treats the common-use inquiry as part of the plain text analysis at step one — when it belongs at step two, where the government bears the burden of proof.
Why the Distinction Matters
This is not a semantic quibble. Moving the “in common use” test from Bruen’s step two to Bruen’s step one shifts the burden of proof from the government to the Second Amendment claimant. At the plain text level, the only question is whether the item being subjected to regulation by a modern gun control law is a bearable arm. In Caetano v. Massachusetts, 577 U.S. 411 (2016), the Supreme Court stated that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Bruen said that any “instrument that facilitates armed self-defense” is an arm.
A machine gun is plainly a bearable arm. Whether it can be regulated — or even banned — is a question for step two, where the government bears the burden to demonstrate that the arm is both dangerous and unusual — a conjunctive test rooted in historical tradition, as explained by the Heller decision. If the arm is in common use for lawful purposes, it cannot by definition be “unusual,” and the government cannot meet its burden of proving that form of arm to be “dangerous and unusual.”
A Recurring Problem Across Multiple Cases
The DOJ brief in Alsenat is not an outlier. In Brown v. ATF in the Eastern District of Missouri — the challenge to NFA registration requirements — the DOJ made the identical error, arguing that the common-use inquiry “belongs at Bruen’s first step.” Meanwhile, in Benson v. United States before the D.C. Court of Appeals, career DOJ attorneys effectively endorsed gun registration as constitutionally permissible — contradicting then-Judge Brett Kavanaugh’s 2011 dissent in Heller II, where he wrote that D.C.’s registration requirement was unconstitutional under Heller.
The Harmeet Dhillon Contrast
What makes these errors conspicuous is that the DOJ’s own senior political appointees have gotten the analysis right. In Barnett v. Raoul — the Seventh Circuit challenge to Illinois’s AR-15 ban — Harmeet Dhillon’s Second Amendment Rights Unit filed a brief that correctly applies Bruen: defining AR-15s as bearable arms at the plain text level, then separately arguing at step two that the government cannot show these commonly owned firearms are dangerous and unusual.
The pattern is clear: when Dhillon’s team or other Trump-appointed officials are involved, the briefs get the methodology right. When career attorneys file without that oversight, the methodology goes wrong in ways that consistently benefit the government’s position by shifting burdens away from where the Supreme Court placed them.
The Real Danger of Getting It Wrong in Court
It is not catastrophic for some Second Amendment claimants to lose their arguments on occasion. Shutouts might be typical in soccer, but they are non-existent in civil rights litigation. Still, the Second Amendment movement cannot afford for the jurisprudence of Heller and Bruen to be screwed up. Erroneous methodology in government briefs creates the risk of bad precedent. Federal judges who accept the DOJ’s conflation of the plain text and historical analyses may establish circuit-level rulings that distort Bruen’s framework — rulings that will be cited long after this administration leaves office.
Someone at the Department of Justice needs to review every Second Amendment brief before it is filed in any federal court. Whether the errors in Alsenat and Brown are the product of deliberate resistance, honest misunderstanding, or carelessness is irrelevant. The briefs are methodologically wrong, they contradict the administration’s own senior officials, and they need to stop.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.