The Fifth Circuit became the first federal appeals court to strike down restrictions on handgun sales to adults under 21. The Fourth Circuit appears poised to uphold the same restrictions.
As Contributing Writer Jake Fogleman explains, that could force the Supreme Court to resolve the difference of opinion. It will also serve as an early test of how Pam Bondi and Trump’s Department of Justice plans to handle gun-rights cases against the government. Will they vigorously defend laws at least some federal judges say violate the Second Amendment?
After all, as I discuss in my piece, Trump hasn’t made gun policy a top priority in his first weeks in office. Gun-rights groups are starting to speak out, but it’s far from certain they have much leverage over him right now.
Plus, InRangeTVs Karl Kasarda gives his view of the fight over the Second Amendment for all. And I give a little update on my trip to the Philippines!
Analysis: The Potential Ramifications of 5th Circuit’s Handgun Ruling [Member Exclusive]
By Jake Fogleman
All of a sudden, age-based gun restrictions have quickly become the dark horse candidate for the Supreme Court’s next Second Amendment case. Its route to the Court has a chance to alter the course of gun politics and policy over the next few years.
On Thursday, a unanimous three-judge panel for the Fifth Circuit Court of Appeals struck down a combination of federal statutes that ban adults aged 18 to 20 from purchasing handguns at licensed gun stores.
“In sum, 18 U.S.C. §§ 992(b)(1), (c)(1) and their attendant regulations are unconstitutional in light of our Nation’s historic tradition of firearm regulation,” Judge Edith Jones wrote in Reese v. ATF.
The ruling marks the first time an appellate court has invalidated the federal handgun sales age limit since the Supreme Court set its new Second Amendment test in Bruen. Its aftermath raises numerous political and legal considerations for gun-rights advocates and the government officials they’ve come to support.
Trump’s Response
In the immediate term, the ruling sets up one of the first big tests of the newly sworn-in Trump Administration’s gun policy resolve. Since it invalidates a significant portion of federal law for a segment of the country, the Trump-led Department of Justice (DOJ) will be forced to consider whether to appeal the decision.
On one hand, electing not to appeal the decision would leave a significant pro-gun ruling in place. That would validate the desires of many gun-rights groups who hope the new administration will use its new authority to simply not defend existing gun laws they find objectionable. But this rare, though not unprecedented, approach would also limit the ruling’s reach to just three states while simultaneously creating an unequal enforcement regime for young adult gun owners in other parts of the country.
On the other hand, choosing to appeal the decision, either to the en banc Fifth Circuit or directly to the Supreme Court, tracks with the DOJ’s traditional approach when a federal law is called into question. This route holds potential upsides for gun-rights advocates but also some possible pitfalls.
A direct appeal seems likely to be granted by the Supreme Court in short order, given its tendency to defer to the DOJ when a federal law has been questioned. That would be a boon for gun-rights advocates, since getting another Second Amendment case in front of the justices has been a frustrating endeavor for them thus far. However, any appeals process would likely stay or even vacate Thursday’s ruling, and there’s no guarantee that the case will ultimately be resolved in favor of expanded gun rights.
Pam Bondi, Trump’s nominee to lead the Department of Justice, poses an interesting wrinkle in the calculus as well. She has not yet been confirmed but appears well on her way to clearing the Senate in the coming days. Bondi helped organize the legislative response to Florida’s Parkland shooting, which included a bill to raise the age for adults to purchase certain firearms. She also vigorously defended that law in court to such an extent that she drew public rebukes from the National Rifle Association.
Given her background, she may not want to triangulate the DOJ’s response to the ruling with the aim of expanding Second Amendment rights, particularly if Trump himself isn’t dictating as much (and his early tenure suggests that the issue is far from top of mind).
The Supreme Court
Independent of how the Trump Administration chooses to respond, the ruling will likely draw Supreme Court interest.
While an immediate DOJ appeal would be the most expedient course, the issue is probably destined for Supreme Court guidance regardless of whether or not the Trump Administration lets the ruling stand.
The same day the Reese decision was handed down, the Fourth Circuit Court of Appeals heard oral arguments in a separate lawsuit challenging the same federal prohibition on handgun sales to young adults. Unlike the Reese panel, the Fourth Circuit strongly suggested it was prepared to uphold the law, which would create an open circuit split on the question that the Supreme Court would be forced to resolve at some point.
Furthermore, similar age-related gun restrictions have already been percolating on the Court’s radar. The government of Minnesota asked the justices last month to review an Eighth Circuit ruling striking down the state’s practice of restricting concealed carry permits to residents 21 and older. A Third Circuit ruling striking down Pennsylvania’s de facto carry ban for young adults during declared emergencies that the Supreme Court previously granted, vacated, and remanded was also redecided with the same outcome last month.
Therefore, even if Reese isn’t ultimately the vehicle, the sheer volume of similar decisions and the prospect of an open hole in federal law make it a near certainty that the Court will find a way to address the issue soon. That’s a win if gun rights for young adults is your top issue, but it does risk crowding out some of the gun-rights movement’s other priorities.
While the Supreme Court has increased its tempo for granting gun-related cases of late, it has never decided more than one Second Amendment case in a single term in its history. Already, gun-rights litigants have had trouble getting the Supreme Court to finally take up an “assault weapon” ban case, for instance. If The Court decides another Second Amendment issue, like the federal handgun age limit or felony gun ban, is more pressing or there is broader agreement among the justices on what the outcome should be, it may once again punt on the gun-rights movement’s top priority cases, like hardware bans.
In the end, the case has the strong potential to eventually wind up with a Supreme Court win in favor of expanding Second Amendment rights. But it might also put other issues that the gun-rights activists would prefer to see addressed first on the backburner.
By Stephen Gutowski
This week, we’ve got one of the most prominent and longest-running Guntubers on the show.
InRangeTV’s Karl Kasarda joins the podcast to discuss his view of the Second Amendment and the backlash his advocacy has generates from other sections of the gun owning community. He argues gun rights belong to everyone, regardless of race, ethnicity, gender, religion, or sexual orientation. Not everyone agrees with that list.
Kasarda said those pushing for a more limited view of who the Second Amendment protects are doing a disservice to the gun-rights cause. Some, he said, are downright hateful and harassing. But he argued even those that aren’t are shrinking the number of people who could be on their side.
He also gives some insight into what it’s like to run a popular gun channel on YouTube and why he’s proactively demonitized his videos to minimize how much power the platform has over his ability to make videos.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Get a 30-day free trial for a subscription to The Dispatch by clicking here.
Plus, Contributing writer Jake Fogleman and I discuss new claims from the gun industry about the ATF continuing to enforce its controversial “zero tolerance” policy despite Trump’s promises to reverse it. We talk about Trump’s lack of gun policy action so far and why some gun-rights groups are starting to speak out. We also cover a significant new ruling out of the Fifth Circuit Court of Appeals where a three judge panel just struck down the federal handgun sales ban for young adults.
In a Beautiful Country With a Beautiful Woman
I’m wrapping up my trip to the Philippines soon. I’ve been blessed to be able to fly halfway around the world to meet my Fiancé’s family. They are lovely folks and I’ve so enjoyed spending time with them.
Its also been incredibly to see all the beauty Bohol has to offer. What a jewel! I wish I could stay longer and I’m hopeful I can come back soon and for longer once The Reload is a bit more established and less reliant on my work.
Anyway, if you get a change to visit the Philippines, you really should go!
Analysis: How Much Leverage Do Gun-Rights Activists Have Over Trump? [Member Exclusive]
By Stephen Gutowski
Gun-rights groups began applying public pressure on Donald Trump this week. Will it have any effect?
On Wednesday, two gun groups expressed at least some unhappiness with the current state of gun policy early on in his second administration. The National Shooting Sports Foundation said the ATF has yet to head its call to undo the agency’s “zero tolerance” enforcement policy. Gun Owners of America, confirming the same, went further and complained Trump did not make good on his promise to undo Former President Joe Biden’s gun actions during his first week in office.
“President Trump promised gun-owning voters that Biden’s unconstitutional anti-gun disasters would ‘get ripped up and torn out’ during the first week of his Administration,” the group said in an email to supporters. “We just officially passed that milestone in the Trump-Vance Administration – and Biden’s anti-gun policies are still in effect.”
For now, those groups are still generally supportive of Trump and their communications indicate they’re hopeful he’ll still eventually do what they want. But if he doesn’t, it’s worth asking what the gun groups could realistically do about it.
As is often his style, Trump has made sweeping declarations about his support for the Second Amendment but few distinct policy promises. He helped strip all of the specific gun policy plans from the 2024 Republican platform. Outside of his commitment to undo Biden’s gun rules and a longstanding promise to sign a national reciprocity bill, which remains unlikely to make it to his desk, he didn’t say he’d do much at all.
The administration’s early moves indicate he’s focused elsewhere, even at the cost of gun-rights advocacy. Pam Bondi, Trump’s AG pick, has received pushback from gun-rights advocates over her backing of “Red Flag” laws and age restrictions on gun ownership–with little effect. His pick to head Health and Human Services, RFK Jr., once labeled the NRA a terrorist group.
He hasn’t even named a nominee to run the ATF yet, and it’s not clear who he might pick for that spot since Republicans sunk his only candidate the first time around because of his support for stricter gun laws.
What, if anything, can gun-rights activists do about that? They appear to be in a fairly weak position in the current Trump coalition.
After all, Trump unilaterally banned bumpstocks and made comments backing “Red Flag” laws that were even more aggressive than what Bondi said. None of that cost him politically. Many gun-rights advocates were upset about how Trump reacted to several major mass shootings, but Republican primary voters weren’t bothered much. He cruised to the nomination, and his opponents didn’t make much noise about his gun record. In fact, neither did the gun-rights groups themselves.
Maybe things would’ve been different if anyone had tried to force the issue. But they didn’t, and it’s hard to see why Trump wouldn’t take gun voters for granted after that.
Plus, Trump already has his Supreme Court picks to point to as a significant real-world accomplishment on gun rights. After all, his three nominees all voted in favor of the new, more challenging Second Amendment standard for gun laws set in 2022’s New York State Rifle and Pistol Association v. Bruen.
A lot of gun voters seem satisfied with the combination of rhetoric, judicial appointments, and limited nature of Trump’s bumpstock ban compared to the proposals backed by Democrats.
However, Trump’s judicial appointments risk losing their luster if the Supreme Court again declines to take up an “assault weapons” ban or other case that’s long been a high priority for gun-rights advocates—or worse, if it upholds a ban. The Court is currently considering a case against Maryland’s ban, but the deadline to hear it this term has likely already passed.
Still, alternatives for gun-rights activists are pretty limited at the moment. Democrats have, by and large, drifted further and further away from them over the last 15 years or so. There was little outreach from Kamala Harris and Tim Walz during the general election beyond a surface-level attempt to relate to gun voters by talking about their own gun ownership.
The Harris Campaign may have made rhetorical overtures to gun owners, but their policy approach was among the most aggressive on gun restrictions ever. Unlike on issues like immigration, Democrats haven’t shown any impulse to move right on guns. So, gun-rights activists have nowhere else to go outside of Trump and the GOP.
That’s not a place of strength for a political movement. The best option is to hope behind-the-scenes and public pressure produce action or, at least, inaction on the policies they oppose.
The final option is to stay home during the next election day. While gun-rights activists may not have a credible alternative in Democrats, withholding their votes is still a credible threat. It’s much harder for GOP candidates to win if gun voters don’t show up.
But the midterms are two years away. For now, options are limited. Trump can, and very well may, take gun-rights activists for granted.
That’s it for now.
I’ll talk to you all again soon.
Thanks,
Stephen Gutowski
Founder
The Reload
