Current Wild Swings of the Gun Control Pendulum

“[T]here is no constitutional right to a factory setting,” The United States Court of Appeals for the Ninth Circuit declared in one of the more absurd statements made in its opinion in Duncan v. Bonta that California’s ban on ammunition magazines capable of holding more than ten rounds is constitutional. They’re not protected by the Second Amendment because they’re optional accessories, not arms, the Court claims. And even if it did protect accessories, the state can prohibit dangerous uses of weapons “by regulating components necessary to the firing of a firearm.” That and “Plaintiffs understate the extent to which our forebears regulated firearms to promote public safety.”

See, they’re just making stuff up at this point because they know they can get away with it. They’re counting on a Supreme Court that won’t rein in the inferior courts to respect the Bruen decision, and that keeps kicking the can down the road on semiautomatics, allowing infringements to continue until such time as the political pendulum swings back to Democrat dominance. One aside on this: It was all about the Second Amendment being about self-defense, and ignored the militia aspect. As long as that’s the only strategy, expect more of the same.

Another aside on this: If you haven’t seen it, watch dissenting Judge Lawrence Van Dyke’s video (see “Dissent video in 23-55805 Duncan v. Bonta” on YouTube) where he removes and attaches “optional accessories,” not only showing the majority for the insufferable ignoramuses on guns that they are, but also doing a better job at field stripping than ham-handed ATF officials have done propaganda videos trying to justify more bans (see “ATF ‘Expert’ Unable to Field Strip Glock” on YouTube).

The federal government has taken essentially the same position on suppressors. Acting U.S. Attorney Michael Simpson argued in U.S. v. Peterson that they are not arms and are therefore not protected by the Second Amendment. The uproar from the gun community was so loud that within three days the Justice Department filed a motion, as Gun Owners Foundation characterized it, to “reconsider its incorrect position that suppressors are not arms and are not protected by the Second Amendment.”

They’re NOT “arms” per se, except you’d then need to square that with 26 U.S. Code § 5845 – Definitions: “The term ‘firearm’ means… (7) any silencer (as defined in section 921 of title 18, United States Code).” But whether a court considers a magazine, a suppressor, or whatever as an “accessory” or not, if they’re to comply with the Bruen standard of history, text, and tradition at the time the Constitution was debated and ratified, there’s no honest way around Continental Congress Delegate Tench Coxe’s contention: “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.”

They’re certainly “implements,” and as a colleague, with decades holding important positions in the firearms industry, advises, “My issue is this. Suppressors are not firearms just as drop-in auto sears and sniper scopes are not ‘arms,’ but the idea that courts, or government, can regulate anything that bolts or screws onto a gun is ridiculous. We shouldn't fight to keep suppressors as ‘arms’ - they are parts.”

Policies out of main Justice continue to leave gun owners uncertain of the Trump Administration’s overall intentions for the Second Amendment, and it’s left the gun community divided. Some are afraid we’ve been conned (again). Others say “patience” and talk of 3D chess. Meanwhile, things go back and forth.

The President’s executive action ordering AG Bondi to “assess any ongoing infringements on the Second Amendment rights of our citizens and present a proposed plan of action…to protect the [rights] of all Americans,” seemed like a good first step (although the infringements addressed only go back to the Biden term). Still, his campaign promise to roaring crowds was that “Every single Biden attack on gun owners and manufacturers will be terminated on my very first week back in office, perhaps my first day,” not that he’d assign someone to study the problem. Based on his pledge, it was fair to assume the incoming administration had already done its homework and would be able to hit the ground running. Gun owners were not encouraged by news that Bondi had missed the deadline for her report. Then it was learned she asked for an extension. The extension has come and gone, and Justice and the White House are keeping conclusions close to the vest.

Meanwhile, there have been legal developments leaving some of us scratching our heads. DOJ still refuses to say where it gets statutory authority to press a citizen for Consent to Permanent Entry in the National  Instant Criminal Background Check System. That creates an unauthorized-by-Congress class of “prohibited persons,” without a conviction or other disqualifier as defined by law. That the government has not provided responsive documents to my Freedom of Information Act Request and subsequent legal complaint makes it fair to speculate that resistance is not because it won’t comply, but because it can’t provide any records authorizing the practice.

A second case of mine involves ATF refusing to pony up for attorney fees after they were forced to return my Akins Accelerator bump stock to me, even though the Supreme Court ruled that the Bureau had “exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.” Instead, ATF is claiming that their position was “substantially justified,” backed by “numerous favorable judicial decisions” (from Democrat judges), and is standing on “the reasonableness of the government’s position.”

In other words, citizens wanting to protect rights unconstitutionally taken from them must find the wherewithal to take on a government with unlimited resources, for years, and when vindicated, be told it’s on them to eat the costs. Who can afford to do that? Is this the new management style “pro-gun” Kash Patel brings to the director’s office?

There’s another example of DOJ deliberate indifference in a formal civil rights complaint documenting how Illinois Supreme Court Justice Elizabeth Rochford, who ruled against “assault weapons,” is unable to render an unbiased verdict because of her very public support of gun prohibitionists submitting arguments in her court, and financial support by citizen disarmament interests doing likewise. Justice, instead of taking action like they have when First and Fourteenth Amendment violations by states and municipalities occur, essentially shrugged and said protecting the Second Amendment is not their job. All this is not to say there aren’t some good things coming out of ATF and Justice.

Rendering Chuck Schumer’s 1992 appropriations rider against restoring gun rights impotent by removing ATF from the equation sounds like something everybody on our side missed, and offers hope that it’s a viable workaround. But it’s an impermanent one—unless Congress codifies it into law, changing rules is as easy as changing administrations, something trademark Republican fecklessness is great at making happen.

Another hopeful development is the appointment as ATF Chief Counsel of attorney, author and legal scholar Robert Leider, earning kudos from some quarters as a “staunch supporter of the Second Amendment.” How anything ATF does is constitutional remains unsaid, but it’s inarguably better to have someone like him charting the Bureau’s legal course than a confirmed gun-grabber, and the direction ATF takes in ongoing and future legal cases should tell us much.

Perhaps we’ll be seeing such an influence in Brown v. ATF. Per a Gun Owners of America post on X:  “DOJ Attorney Steven Hazel argues that it is constitutional for the federal government to infringe Second Amendment rights by ‘restrict[ing]… the sale of handguns’ to 18-20 year old adults” (just like Pam Bondi did when she was Florida AG).

That an attorney for the DOJ under Donald Trump can seriously argue that -- with 10 U.S.C. § 246(a) codifying “The militia of the United States consists of all able-bodied males at least 17 years of age…” -- is beyond understanding.  But further illustrating the bipolar nature of contradictory positions we see coming from the Department is a March 24 advisory from DOJ Chief of Staff Chad Mizelle: “Protecting the Second Amendment rights of law-abiding citizens is a high priority for @AGPamBondi. To that end, the Department will be re-evaluating some of its recent litigation positions on Second Amendment issues, including silencers.”

“I got a call last night from someone who works with a higher up in the Trump administration as an advisor who said essentially [my video about DOJ arguing suppressors are not protected by the Second Amendment], and others like it, surprised the people steering the ship and they were unaware it happened,” popular YouTuber Mrgunsngear posted on X. That raises obvious questions. Why were they surprised? Why are they unaware?

That brings up an argument this column has been making for years, first recalling 2016’s “Second Amendment Coalition,” co-chaired by Donald Trump Jr., and then 2020’s  and 2024’s “Gun Owners for Trump” announcements. The thing is, they only proved to be campaign publicity releases instead of working advisory groups comprised of Second Amendment leaders, scholars, and lawyers who had the pulse of their supporters, knowledge of the issues, and the president’s ear.

Replacing Joe Biden’s Office of Gun Violence Prevention with an Office of Second Amendment Protection, with liaison members like new ATF Chief Counsel Leider, would mean no more surprises, no more cognitively dissonant legal positions, and no more disheartening gun owner who are feeling used, abandoned and betrayed.

ADDENDUM: After this draft had been submitted news reports announced that “The Supreme Court sided with the federal government’s effort to regulate so-called ghost gun kits” in the case of Bondi v. Vanderstok. How DOJ squares that with President Trump’s campaign pledge that “Every single Biden attack on gun owners and manufacturers will be terminated on my very first week back in office, perhaps my first day,” has not been stated.

Read more Firearms News on Trump

---