The Second Amendment states "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The "people" is a broad concept, and the Supreme Court has suggested that in the context of the Second Amendment it refers to every member of the political community.
Yet, as The Reload's Stephen Gutowski notes, the Department of Justice's new Second Amendment Section states that its mission is to "ensure that law-abiding American citizens may responsibly possess, carry, and use firearms.” If, in fact, the DOJ's defense of the right to keep and bear arms is limited only to "law abiding American citizens", then it's taking a position that is both in line with former AG Merrick Garland's stance and arguably at odds with the text of the Second Amendment itself.
The repeated use of the language puts the DOJ at the center of a heated post-Bruen legal fight over the radius of Second Amendment protections and suggests it may take a relatively restrictive view of the amendment’s scope. The launch of the DOJ section has been widely praised by gun-rights advocates, but the language could prove to be a sticking point down the line.
The DOJ did not respond to questions about its use of the “law-abiding American citizen” language, whether it represents the department’s legal position on the limits of the Second Amendment, or exactly how it defines any of the terms.
The language shares some similarities with what the DOJ argued about the scope of the Second Amendment during 2023’s US v. Rahimi. In that case, under former President Joe Biden, the Department argued Second Amendment protections only extend to those who are “law-abiding” and “responsible.” After strong pushback from several justices during oral arguments, former Solicitor General Elizabeth Prelogar walked back that argument and said the DOJ merely meant that dangerous people could be disarmed.
Since President Donald Trump retook office, the DOJ has not taken a position on who is covered by the Second Amendment in court. It hasn’t elaborated on its view of who is and isn’t “law-abiding.” The DOJ hasn’t attempted to limit the gun rights of lawful permanent immigrants, who’ve long been able to own firearms under federal law, or even the ability of non-immigrant aliens to rent guns or hunt with the proper permit.
It’s not clear if or how the DOJ’s embrace of the “law-abiding American citizen” standard for who is protected by the Second Amendment will impact its litigation efforts.
To be fair, the Supreme Court itself has used the same phrase when talking about the right to keep and bear arms. In Heller, for instance, Justice Antonin Scalia wrote "whatever else it leaves to future evaluation, it [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."
The phrase "law-abiding" appears 28 times in Bruen, including in its holding: "New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense."
But Gutowski is correct in pointing out that in Rahimi, the Court did seem to take issue with the government's contention that only law-abiding Americans possess a right to keep and bear arms. Chief Justice John Roberts, for example, asked Prelogar if someone who drives 30 mph in a 25 mph zone is "law-abiding."
Prelogar's response was that it "wouldn't qualify to the extent that it's classified as a misdemeanor or a minor criminal conduct under state law."
And I do want to be clear that we -- we certainly think that wouldn't apply under the not responsible category, but if you're focusing on law-abiding in particular, we think that history and tradition there support the conclusion that you can disarm those who have committed serious crimes.
When Roberts asked if Prelogar was making a distinction between misdemeanor offenses and felonies, the then-Solicitor General answered in the affirmative, stating that "is the relevant category with respect to law-abiding citizens."
That, however, is a distinction not found in federal statute. Section 922(g)(1) prohibits possession of firearms for anyone convicted of a crime punishable by more than a year in prison, regardless of whether or not it's a felony offense. Section 922(g)(3) prohibits "unlawful" users of drugs from possessing firearms, though simple possession of marijuana is a misdemeanor under federal law (at least for a first offense).
In Rahimi, the Supreme Court hinted that the "dangerousness" of a particular individual should weigh on an offender's ability to possess a firearm, which has led to multiple appellate courts adopting that standard for individuals charged with illegally possessing a firearm under 922(g)(1) and 922(g)(3). So far, though, the DOJ under Pam Bondi has not explicitly repudiated the position it took under Merrick Garland, though it has not relied on that position in defending federal gun laws before the Supreme Court.
In its cert petition in Hemani, Solicitor General D. John Sauer argued that "restrictions on firearm possession by habitual illegal drug users" are constitutionally sound, but didn't claim outright that the Second Amendment only protects "law-abiding citizens." In responding to cert petitions in other cases challenging Section 922(g)(1), Sauer has argued that those prohibited persons will soon be able to apply to the Attorney General to have their rights restored so the Court need not grant cert, avoiding altogether any substantive argument about the constitutionality of barring non-violent offenders and those convicted of some misdemeanors from possessing or carrying a gun.
The "law-abiding American citizen" language in the Second Amendment Section's mission statement isn't cause for automatic alarm, at least on my part, but the DOJ could alleviate any concerns 2A supporters might have by tweaking the statement to read: "The mission of the 2nd Amendment Section is to ensure that 'the people' can exercise their right to keep and bear arms without infringement by local, state, and federal governments."
