The Trump Department of Justice has asked a federal appeals court for five minutes to explain why Massachusetts’s handgun roster is unconstitutional, and the request itself is news. In Granata v. Campbell, the Firearms Policy Coalition’s challenge to the state’s pre-clearance list of approved handguns, oral argument is set for September 9, 2026, before the U.S. Court of Appeals for the First Circuit in Boston. The government has moved to participate, using five minutes ceded by the plaintiffs-appellants, to argue directly against the Commonwealth. That is a significant commitment of federal weight to a single state case, and it previews arguments the same DOJ will likely make at the Supreme Court within the year.
Call a handgun roster what it is. When a state law says a resident may buy only handguns pre-approved by the government, and denies approval to a long list of commonly owned models, the roster is not a safety regulation. It is a ban on every commonly owned handgun that fails to make the list. A regulation with that structure and that effect is a ban dressed in bureaucratic language.
What DOJ Told the First Circuit
The government’s motion for argument time states the theory plainly. As the United States wrote to the court:
“The United States respectfully seeks permission to participate in oral argument of this appeal on five minutes of time ceded by plaintiffs-appellants. In support, the United States provides as follows. This appeal concerns the fundamental right of law-abiding citizens to acquire, possess, and carry arms in common use for lawful purposes guaranteed by the Second Amendment. Massachusetts law infringes upon this fundamental right by effectively establishing a preclearance regime for the sale of widely owned and commonly owned handguns which prevents or unlawfully restricts law-abiding Massachusetts citizens from purchasing those arms. This regime indirectly achieves what Bruen forbids.”
That last sentence carries the argument. The government is not merely disagreeing with Massachusetts on policy grounds. It is arguing that the Commonwealth has built an indirect mechanism to accomplish what the Constitution bars it from doing directly.
The Amicus Brief’s Core Theory
DOJ’s underlying amicus brief, filed months earlier, lays out the same point with more precision:
“Whatever regulatory authority states possess, that authority does not extend to prohibiting the sale of arms that are in common use by law-abiding citizens for lawful purposes. When a law operates to forbid the sale of those arms, it crosses a constitutional line the Second Amendment does not permit. Because Massachusetts law prohibits the sale of arms that are in common use, it conflicts with the Second Amendment’s text as interpreted by the Supreme Court. The judgment below should therefore be reversed.”
That judgment below is Judge Denise J. Casper’s ruling for the District of Massachusetts upholding the roster. DOJ’s brief also confronts the state’s framing directly: Massachusetts characterizes the roster as a safety regulation, but its effect is to bar ordinary citizens from acquiring widely owned, commonly used arms. Under governing Supreme Court precedent, a state may not accomplish indirectly what it is forbidden to do directly.
Why the Burden Sits With the Government
This architecture traces to District of Columbia v. Heller, 554 U.S. 570 (2008), and to the text-and-history framework the Supreme Court sharpened in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Once the Second Amendment’s plain text covers an activity, such as acquiring a handgun for lawful self-defense, the burden shifts to the government to justify the restriction through historical analogy. A government may ban weapons that are dangerous and unusual, but it must prove that classification. It is not the citizen’s burden to prove a handgun is in common use.
The common-use test rests on a historical foundation DOJ’s brief invokes directly: at the founding, ordinary Americans brought the weapons they kept at home to militia muster, whether a fowling piece, a rifle, or a Brown Bess musket. The arms the people already owned defined the baseline of what the Second Amendment protects. That principle cuts sharply against Massachusetts here. Glocks and comparable semi-automatic handguns are among the most commonly owned firearms in America, and the government cannot meet its burden of showing they are dangerous and unusual.
I have also heard the argument, in some corners of the anti-gun bar, that Heller protects only revolvers, because Dick Heller’s own firearm happened to be one. I regard that theory as meritless, and my read of the writings of Justices Alito, Thomas, and Kavanaugh is that they have already undercut it — worth recalling here because the Supreme Court is positioned to eliminate any doubt on the question next year.
The First Circuit Now, the Supreme Court by June
The First Circuit is, in my assessment, the circuit least hospitable to Second Amendment claims in the country, and I do not expect a favorable panel result on September 9. But a loss there sets up a certiorari petition, and the timing is not coincidental. The Supreme Court granted certiorari on June 30, 2026, in Viramontes v. Cook County, No. 25-238, consolidated with Grant v. Higgins, No. 25-566, presenting the question whether the Second and Fourteenth Amendments protect AR-15-platform semi-automatic rifles. Argument is expected this fall, with a decision by June 2027.
The positions DOJ takes in Boston on September 9 will forecast what it argues at the Supreme Court in Viramontes and Grant. A ruling protecting semi-automatic rifles, and reaffirming that Heller protects modern semi-automatic handguns as well, would not stay confined to Illinois and Connecticut. It would sweep away handgun roster schemes in Massachusetts and California alike, because the same common-use logic that protects the rifle protects the handgun. Massachusetts may win the battle in Boston. It is not going to win the war.
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.