A Second Amendment Grade for President Trump So Far
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In his most recent State of the Union address, President Donald Trump promised the American people, “So long as I am President, I will always protect your Second Amendment rights to keep and bear arms.” This was certainly a welcome statement from any elected official, particularly from the nation’s chief executive during a time of unprecedented attacks on the Second Amendment by many local, state, and federal lawmakers.
But how has the President’s first term stacked up against his grand promise? When we step back from the hype and honestly assess Trump’s performance with respect to the Second Amendment, what do we actually find? Fortunately, when we take a hard look at the bad and the good in three important categories—the President’s rhetoric, policy, and judicial nominations—it is evident that Trump has gotten the Second Amendment right more often than he has gotten it wrong.
Largely Saying the Right Things
Actions speak louder than words, particularly when it comes to national policy. But words, especially when they come from a President, are important. A President’s policy agenda often carries great weight with Congress, signaling to federal lawmakers what types of bills they might pursue without risk of a Presidential veto. President Trump’s Second Amendment rhetoric has occasionally been lacking. Yet more often than not, and principally when it has been most important, the President has said the right things.
First, the bad. On some occasions during his first term, President Trump publicly indicated his support for several constitutionally problematic gun control policies. Most prominently, after the February 2018 school shooting in Parkland, Florida, Trump said his administration would “work on getting the age [of commercial gun sales] up to 21 instead of 18.” He also suggested that he might support the significant expansion of federal background check laws, including so-called universal background checks. Such policies, if pursued, would likely infringe on the rights of law-abiding Americans without meaningfully preventing gun violence.
Fortunately, as explained below, the President does not appear to have seriously pursued most of these gun control policies. The lack of follow up action on these statements, however, does not negate the fact that the President should not have spurred Congress to action on these misguided ideas in the first place.
However, other than these few moments of poor judgment with his words, President Trump’s rhetoric on the Second Amendment has largely matched his promise to protect Americans’ right to keep and bear arms. Perhaps most importantly, in 2019, the White House issued a statement threatening to veto two gun control bills passed by the House, should those measures also make it through the Senate.
The first bill, H.R. 8, would have imposed sweeping universal background checks on the American public, requiring almost every private transfer of a firearm—no matter how temporary and low-risk—to be conducted through a federal firearms licensee. In threatening to veto the bill, the White House properly noted that the “extensive regulation required [by the bill] . . . is incompatible with the Second Amendment’s guarantee of an individual right to keep and bear arms.”
The second bill Trump threatened to veto, H.R. 1112, similarly dealt with federal background checks. It would have extended the time allowed for the FBI to complete a background check from three days to 10 days. Even then, the bill placed the burden on the buyer to petition the government for background check results after the initial 10-day period had elapsed, and the government would have an additional 10 days to complete the check. In the veto threat, the White House argued that “allowing the Federal Government to restrict firearms purchases through bureaucratic delay would undermine the Second Amendment.”
Along with these important veto promises, President Trump has made several much-needed remarks regarding the dangers of “gun free zones,” the importance of adequately protecting our nation’s school children, and the need to invest in mental health resources to combat gun-related violence.
Largely Doing The Right Things
As with Trump’s rhetoric, most of his administration’s policy efforts have been consistent with his promise to protect the right to keep and bear arms.
Early in his first term, federal agencies reversed course on several Obama-era policies that would have jeopardized Americans’ Second Amendment rights. For example, under the Trump Administration, the State Department settled a previous Obama Administration lawsuit with Defense Distributed and permitted that organization to publish its blueprints for 3D-printed guns online. This was a win for both the First and Second Amendments. Americans clearly have a right to discuss and disseminate information about how to conduct lawful activities—including how to smith a firearm for personal use.
Similarly, the Trump Administration rescinded (before it could go into effect) an Obama-era regulation that would have effectively stripped the Second Amendment rights of any person who checked a particular box on a form submitted to the Social Security Administration. Normally, before the government can prohibit a person from keeping and bearing arms, it must first prove at some sort of hearing or trial that the person is a criminal, seriously mentally ill, or otherwise poses a serious danger to the community. The new Obama rule, however, would have summarily declared tens of thousands of Americans ineligible to exercise a constitutional right without first providing them any semblance of due process.
In March 2018, the President signed into law the Fix NICS Act, an effort to strengthen enforcement of existing federal gun laws without expanding them or imposing new restrictions on law-abiding citizens. The federal background check system has long suffered from the failures of states and federal agencies to submit the criminal and mental health records of individuals disqualified from gun ownership. The Act increased federal oversight over federal agencies responsible for submitting records, increased funding to assist states in reporting disqualifying records, and prioritized funding for those states that established plans for increased reporting.
Most recently, the Trump Administration lived up to its Second Amendment promise by fighting back against state closures of gun stores, shooting ranges, and government permitting offices during the COVID-19 pandemic. Several states and counties ordered these places shut down or refused to exempt them as “essential businesses.” In some places, this meant that residents who did not already own guns were de facto prohibited from exercising their constitutional rights for the duration of the epidemic.
While the federal government could not override state definitions of “essential business,” the Trump Administration issued federal guidelines that deemed gun stores and gun ranges, as well as firearms and ammunitions manufacturers, as “critical components of the nation’s workforce.” The guidelines recommended that states allow those businesses to continue operating during the pandemic.
Officially, this federal guidance applied only to the enforcement of federal laws or regulations. Nonetheless, it helped strengthen legal challenges to state closures and suggested that the federal government might intervene in such lawsuits on behalf of gun owners. As a result, several jurisdictions—including New Jersey and Los Angeles County—walked back their original orders to close gun stores.
Despite all of these actions, President Trump’s first term saw one clear Second Amendment policy failure. Under his administration, the ATF arbitrarily reinterpreted the federal definition of “machine gun” to include bump stocks, banning their civilian possession and requiring owners to turn in these devices. It did so even though bump stocks do not modify the mechanics of a semi-automatic firearm, and the agency has no authority to change the meaning of federal law.
Regardless of one’s perspective on the desirability, constitutionality, or practical effectiveness of banning the civilian possession of bump stocks, the way in which the ATF went about doing so is troubling. When a largely unaccountable federal agency feels empowered to effectively rewrite statutes in order to create new gun control laws, it poses a danger to the entire Constitution, including the Second Amendment.
Bolstering The Federal Judiciary
Thus far, the President’s most enduring legacy with respect to the Second Amendment will likely be his federal judicial nominees, who are primed to stand as a bulwark against future attempts by lawmakers to infringe on the right to keep and bear arms. While not all of these nominees have had the opportunity to rule on Second Amendment cases, several high-profile picks have shown they are willing to come to the Amendment’s defense. Most importantly, by nominating judges who properly understand the role of the judiciary—to say what the law is, and not what they wish it to be—Trump has helped decrease the risk that federal judges will undermine the right to keep and bear arms based on their own policy preferences.
Many Second Amendment advocates were disappointed when the Supreme Court this term continued its decade-long refusal to take up a meaningful challenge to restrictive gun control laws. The Supreme Court’s reluctance to do its duty with respect to the Second Amendment has been despite—not because of—Trump’s two nominees to the nation’s highest bench. Both Justice Neil Gorsuch and Justice Brett Kavanaugh have signed on to dissents from denials of certiorari in important Second Amendment cases, expressing their disappointment that the Court has so long declined to adequately protect this right from clear infringement. Moreover, in one of these dissents from denial, Justice Gorsuch did not refrain from attacking the Trump Administration itself over its agency-propagated bump stock ban.
The President’s two Supreme Court picks are far from his only judicial nominees to prove themselves stalwarts of Second Amendment jurisprudence. Several of Trump’s lower court picks have made waves for their staunch defenses of the right to keep and bear arms.
For example, Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals issued a strong dissent in a case where two of her colleagues voted to uphold a Wisconsin law imposing a lifetime ban on gun ownership for non-violent felons. The plaintiff in the case was hardly a violent menace. He had been convicted of a single count of federal mail fraud after submitting sham requests for Medicare to reimburse non-compliant shoe inserts. Nevertheless, under the interaction of federal and Wisconsin law, this rendered the plaintiff ineligible to ever again exercise his Second Amendment rights.
Judge Barrett analyzed the case through an originalist lens, noting that “Founding-era legislatures did not strip felons of the right to keep and bear arms simply because of their status as felons . . . but only when they judged that doing so was necessary to protect the public safety.”
Similarly, Judge Stephanos Bibas of the Third Circuit wrote a scathing dissent when the other two judges on his panel upheld New Jersey’s ban on so-called “high-capacity magazines” as “reasonably fit[ting] the State’s interest in promoting public safety.” Judge Bibas excoriated the majority for failing to take the Second Amendment and Supreme Court precedent seriously. He reminded them that their job as judges is not to “water [the Second Amendment] down and balance it away based on our own sense of wise policy.” Rather, “the Framers made that choice for us. We must treat the Second Amendment the same as the rest of the Bill of Rights.”
Finally, four Trump-nominated Fifth Circuit judges—James Ho, Don Willett, Kyle Duncan, and Kurt Engelhardt—joined together in a notable opinion dissenting from the Circuit’s denial of a request to rehear an important Second Amendment case before all of the Circuit judges. This case involved the federal prohibition on interstate handgun sales, requiring all handgun sales to out-of-state buyers first be transferred to an in-state dealer.
As the dissenting judges noted, this law effectively imposes an additional waiting period and tax on certain handgun buyers, without really furthering a compelling government interest. Moreover, as they wrote, the Government “turns the Second Amendment on its head” by arguing that “to protect against the violations of the few, we must burden the constitutional rights of the many.” Importantly, “[o]ur Founders crafted a Constitution to promote the liberty of the individual, not the convenience of the Government.”
Final Assessment? More Good Than Bad.
In his first term, President Trump largely lived up to his promise to protect Americans’ Second Amendment rights. There have been a few missteps along the way, but on the whole, the Trump Administration has kept its word when it comes to our right to keep and bear arms.