One of the more absurd arguments anti-gunners make toward Second Amendment absolutists is asking if we're fine with private parties owning nuclear weapons. It's absurd because it's simply not a realistic scenario. No one who makes them would sell them to us, and most of us couldn't afford one anyway, so even if this is an option, it's kind of still not an option.
But if you only get your news from Slate or X, you might think that the Department of Justice just defended, or refused to rule out, private nukes.
No, this is not the Onion.
— Kris Brown | @KrisBrown.BradyUnited.org (@KrisB_Brown) March 27, 2026
The Department of Justice is arguing that the Second Amendment could even cover a right to nuclear weapons.
If this isn't extremist, I don't know what is.
Read more from our @bradybuzz legal team in @Slate.https://t.co/si2KLPxqp2
Of course, this is Kris Brown, the same woman who praised the Star Wars series The Acolyte before the first episode ever aired, all because they weren't using guns, just lightsabers. You know, the Youngling Slayer 9000.
With it being Brown, it couldn't be what Slate was talking about, right?
Well...yeah, it could be.
Of the sheer number of absurdist stories you may have missed in the news recently, one is that in public court filings slamming common-sense laws to prevent gun violence, President Donald Trump’s Department of Justice refused to rule out nuclear weapons from the kinds of arms it claims the average citizen may be entitled to possess under the Second Amendment.
How did we get here, where the top law enforcement lawyers in the country refuse to draw any line at weapons that can be used in lawful self-defense? And why is self-defense an important consideration in showing how laws to prevent gun violence align with the Second Amendment?
In the past year, Trump’s DOJ has taken an extreme pro-gun-rights view of the Second Amendment, with its lawyers making clear their view that the public has a constitutional right to access an extraordinarily broad range of weapons for self-defense. Trump’s DOJ has taken a remarkable stance in recent court filings—including in attacking state assault weapon bans—that any arm that is simply in “common use” by law-abiding citizens for lawful purposes cannot be regulated, regardless of how dangerous that arm is, or how unsuited to lawful self-defense.
Now, to be clear, DOJ lawyers do not argue that nuclear weapons are currently protected by the Second Amendment. But that is based on the view that nukes could not become popular enough to be protected, not because of the unmistakable threat to public safety that civilian access to nuclear warheads would create. Under this dangerous logic, if nuclear weapons become more common, all bets are off: Civilians might then be constitutionally entitled to acquire and possess them. And though the Trump DOJ’s discussion of nuclear weapons may seem farfetched, the same logic would apply to a grenade launcher or bazooka.
That's right, ladies and gentlemen, the DOJ used jurisprudence of the past, including the phrase "in common use" to point out that even so-called weapons of war are legal if they're in common use, and those like nuclear weapons, aren't covered because not only are they not in common use, but there's no chance of them ever becoming in common use.
As the late, great Billy Mays once said, "But wait, there's more."
See, when you actually look at what the DOJ said, it's even less like what Slate is saying.
Finally, some courts have expressed concern that the common-use test would lead to “absurd consequences,” such as allowing “nuclear warhead[s]” to “gain constitutional protection” if they become “popular.” Bianchi, 111 F.4th at 460. But that concern is implausible. “Even if some nuclear warheads are small enough for an individual to carry, no reasonable person would think to use one to defend himself. Still less could nuclear warheads ever become a common means of selfdefense.” Snope, 145 S. Ct. at 1538 (Thomas, J., dissenting). Such weapons also are highly unusual even in military contexts and are wholly inappropriate for a citizen to use when “call[ed] forth . . . to execute the Laws of the Union, suppress Insurrections and repel Invasions.” U.S. Const. Art. I, § 8, Cl. 15.
So not only are they not in common use for civilians, they're not in common use for the military itself, really. Most militaries don't have them, and even among those with a nuclear arsenal, we're the only nation to have used them, and that was in 1945. They're not that common for anyone, and this is a non-argument.
And Slate managed to take that bit and completely twist it, only for Brown to twist it even more, and now everyone thinks the DOJ defended the private ownership of nuclear weapons.
But considering that at least one member of Congress has actually suggested that the federal government might nuke Americans resisting domestic tyranny, maybe the DOJ should be defending nuclear weapons for private citizens.
Look, I'm not a fan of the whole "in common use" thing, in part because it justifies bans on new weapons technology before it can take hold with the general public. Right now, that's not an option, but technology marches on, and who knows what the weapons of the future will look like. Rail guns, laser blasters, portable particle beams, all kinds of things are science fiction fodder today, but could be fact tomorrow, like private space travel used to be. "In common use" gives the government a loophole to ban emerging weapons from the market and thus put us at a distinct disadvantage at some time down the road.
Yeah, probably well after we're all dead and gone, but that's not the point. Rights must be protected for future generations.
That said, the private nukes argument is nothing more than an argument ad absurdum. It's about taking gun rights as our Founding Fathers envisioned them and trying to take them to the most ridiculous place imaginable, all so they don't have to argue the nuts and bolts of what's really happening.
Not that it matters when Slate blatantly misrepresents what was said.
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