On June 1, 2026, a divided panel of the United States Court of Appeals for the D.C. Circuit handed down Talbott v. United States, No. 25-5087, and two federal judges appointed themselves co-commanders of the armed forces. By a 2-1 vote, the panel held the policy excluding transgender individuals from military service unconstitutional and affirmed an injunction barring its enforcement against current servicemembers. Strip away the politically charged subject matter, and a raw question of power remains: may three lawyers in robes overrule the President on who serves in his military? The Constitution answers no, and that answer carries a direct lesson about how we defend the Second Amendment.
The Branches Were Never Meant to Trade Places
Justice Antonin Scalia spent years reminding us that the Bill of Rights is not what keeps Americans free. What keeps us free is the structure of the Constitution itself — the separation of powers, Congress against the President against the courts. Every banana republic has a bill of rights; what those regimes lack is a structure that makes the words enforceable.
Article I gives Congress the power to fund and govern the armed forces. Article II makes the President the Commander in Chief. Article III gives the courts the power to decide cases and controversies — not to command armies. Since the founding, the political branches have run the military and the judiciary has stayed out. That division is one of the load-bearing walls of the constitutional structure.
So when two judges in Talbott declare that Article III courts may tell the Commander in Chief who is fit to wear the uniform, they are not vindicating a right. They are seizing a power the Constitution assigned to someone else. Talbott is a branch swallowing another branch.
”We Are Judges Not Generals”
The dissent comes from Judge Justin Walker, a Trump appointee to the D.C. Circuit, and it ought to be read aloud in every law school. Walker invokes the late Judge Stephen F. Williams — one of the most distinguished jurists ever to serve on that court — who wrote in an earlier transgender-military case that whether to accommodate such service “is of no concern to the courts; that is a question for the people acting through their elected representatives.” Walker then makes the point with a precision the majority could not answer:
Because their claim flouts that division of power, the plaintiffs cannot identify a single binding precedent holding that the Constitution dictates a composition of forces contrary to the preferences of our nation’s political branches. Not one… . But because the plaintiffs are service members not civilians, and because we are judges not generals, I respectfully dissent.
Judge Justin Walker, dissenting
That is the whole case in two sentences. The Supreme Court has long held that the military may restrict rights the Constitution guarantees to civilians — free speech, free exercise, due process, the right to counsel, and equal protection. The political branches receive deference precisely because judges are not equipped to run an army. Walker did not invent that principle. He refused to abandon it.
Text Speaks, or History Must
The second half of Talbott teaches a lesson every gun owner should understand, because it governs the Second Amendment too. Everything turns on one question: does the right you assert appear in the text of the Constitution? That question sends the historical inquiry in opposite directions.
The Second Amendment is text. “The right of the people to keep and bear Arms, shall not be infringed.” It codified a pre-existing right; it did not invent one. When a right is written down, you presume it exists in full, and history does only one job — it identifies the narrow, traditional exceptions. That is the lesson of District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), where Justice Thomas held that once the text covers your conduct, the government must prove its regulation “is consistent with this Nation’s historical tradition of firearm regulation.” No clause says you may not use a firearm to commit murder; that limit holds because history shows it always has.
A claimed right to serve in the military as a transgender person is not in the text. Neither is the right to marry, or to an abortion. When the right is not written down, the analysis flips.
Who Carries the Burden — and Why the Founders Wrote It Down
For an unwritten right, the claimant must prove it. The standard comes from Washington v. Glucksberg, 521 U.S. 702 (1997): the asserted right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Some claims clear that bar, as marriage long has (Obergefell v. Hodges, 576 U.S. 644 (2015)); others have not (Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022)).
So the same historical method runs in two directions, and the text fixes the direction. For an enumerated right, history is a limiting tool the government must wield against me. For an unenumerated one, it is a building tool the claimant must wield to establish the right. Whoever invokes history bears the burden of proving what he asserts. The law is a single web — tug one thread and the whole thing moves.
The founders wrote the right to keep and bear arms into the document precisely so the burden would fall on the government, forever, and so the citizen would never have to beg permission to exercise it. Talbott gets the structure backwards and the burden backwards at once. The text fixes both — and that is why it was worth writing the Second Amendment down.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch on the Four Boxes Diner channel. This does not constitute legal advice.