Understanding Why the Bondi DOJ Defended Most Federal Gun Laws, and Why Future Attorneys General Are Likely to Do the Same

With Pam Bondi’s time as Attorney General coming to an end, I have received some criticism for seeing her tenure as generally very positive for the Second Amendment. In fact, I have said that by overseeing the creation of the Second Amendment Section of the Civil Rights Division and actively filing lawsuits to defeat things like “assault weapon” laws and lengthy carry permit wait times, she has overseen the most pro-Second Amendment Department of Justice since Reconstruction. Bondi’s DOJ is also likely the reason the Supreme Court granted certiorari in the Wolford case despite its preliminary injunction posture, and her Department is also now implementing what will be the largest rights restoration process for the Second Amendment in U.S. history.

By objective measures of actions taken, Bondi’s DOJ has been the most favorable to the Second Amendment in the modern era. Perhaps you can complain that the bar is too low because prior administrations were always too hostile to the Second Amendment, and Bondi’s DOJ merely did the bare minimum. Fair enough. But that does not change that no prior administration has done even that much.

None of this is to say I agree with every position that the DOJ has taken since President Trump’s return to office. I work for the Second Amendment Foundation after all, and we have many active cases ongoing against the federal government. We think the NFA’s registration scheme is unconstitutional, and have multiple cases concerning that issue alone. The DOJ has also frustratingly sought to narrow relief in some of our cases, like attempting to limit court injunctions to only those SAF members who had become members by the time the lawsuit in question was first filed.

Thus, while many great strides have been made by DOJ recently in favor of the Second Amendment, it is also true that they continue to generally defend federal gun laws. When other Second Amendment activists and organizations are so critical of Pam Bondi’s time as Attorney General, that is basically their central complaint: whatever good they might be doing is undermined by their ongoing defense of federal gun laws.

Thanks to that, the news of Bondi’s departure was met with celebration in the gun rights sphere. Many, myself included, are now rallying behind Assistant Attorney General Harmeet Dhillon, currently the head of the Civil Rights Division of the DOJ, to become Bondi’s successor. I have no insight into who will ultimately get the job, but I hope it will be AAG Dhillon, or someone with similar conviction and a proven track record.

However, regardless of who our next Attorney General is, if your expectation is that they will refuse to enforce the gun laws we as Second Amendment activists consider unconstitutional, then you will almost certainly be disappointed.

The reason is simple: with only rare exceptions, the DOJ will generally always defend federal laws because the Attorney General, as head of the DOJ, has a duty to defend the constitutionality of federal statutes when they are challenged in court. This stems from the executive branch’s responsibility to “take Care that the Laws be faithfully executed” under Article II of the Constitution. It is not the DOJ’s job to second-guess the constitutionality of laws duly enacted by Congress and signed by the President.

This is why, for example, the Biden-era DOJ defended the PLCAA in federal court, even though the Biden Administration despised that law and would have loved to see it repealed or struck down. As an article from the Trace covered:

The problem with Biden’s disdain for gun liability protections (aside from the fact that he overstated the immunity the firearms industry receives) is that his administration is going out of its way to defend them. Sitting in the front row at the State of the Union was Attorney General Merrick Garland, the head of the Department of Justice.

“Our obligation in the Justice Department is to defend the constitutionality of statutes that we can reasonably argue are constitutional,” Garland said at a House Judiciary Committee oversight hearing in October. Democratic Representative Ted Deutch, who represents Parkland, Florida, where families are suing over the 2018 shooting at Marjory Stoneman Douglas High School, had just asked him about PLCAA. “That’s the position the Justice Department takes. Whether we like the statute or not, we defend the constitutionality of Congress’s work.”

That bolded portion is key. The DOJ’s long-running practice is that so long as there is a non-frivolous argument to support a law’s constitutionality, they will defend it, even if they think they might lose in court.

In 1980, then-Attorney General Benjamin Civiletti responded to questions from the Senate on this very point, explaining that “if executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.” But he was careful to add that there is a line where the law simply becomes indefensible:

[I]f Congress were to enact a law requiring, for example, that the Attorney General arrest and imprison all members of the opposition party without trial, the Attorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he would be untrue to his office if he were to do otherwise. This is not because he has authority to “deny the validity of Acts of Congress.” It is because everything in our constitutional jurisprudence inescapably establishes that neither he nor any other executive officer can be given authority to enforce such a law.

In the Second Amendment sphere, we have seen the Bondi DOJ make some progress in situations where it felt it had no serious ground to enforce or defend particular federal gun laws. For example, the Office of Legal Counsel recently examined the ban on mailing handguns through the U.S. Postal Service, a law which dates back to 1927. It concluded that the law’s “purpose and burden find no analogue in this Nation’s history and tradition of firearm regulation…the statute violates the Second Amendment insofar as it burdens the rights of law-abiding citizens to ship and receive arms in common use for lawful purposes.” Based on that, they would no longer enforce that law (though the memorandum left unclear if they would defend it in court).

To be sure, it is possible that a different attorney general could take a much more expansive view on what is and is not a “reasonable” argument and thereby conclude that more federal gun laws are indefensible than Bondi did. But even that is hardly a silver bullet to getting major federal gun laws overturned. In that circumstance, we would likely see courts allow attorneys for Congress members to defend the challenged laws, as occurred when the Obama administration refused to defend the Defense of Marriage Act. There, “the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives voted to intervene in the litigation to defend Section 3’s constitutionality. The District Court permitted the intervention.”

Moreover, there are sometimes good reasons to want the DOJ to defend a law, as opposed to Congressional lawyers or others. For example, in U.S. v. Peterson, while the Bondi DOJ defended the NFA as to suppressors, it did at least concede that suppressors enjoy some degree of Second Amendment protection. “Regardless of whether suppressors themselves constitute ‘arms,’ restrictions on suppressors burden the right to ‘keep and bear Arms’ and so must be closely scrutinized to ensure compliance with the Second Amendment.” This sort of concession may prove very helpful to those challenging state-level total bans on suppressors.

In sum, except when there is no non-frivolous argument to be made in defense of a law, you can usually count on the Department of Justice to defend federal laws. There may be some differences between Pam Bondi and her eventual successor on the margins in terms of what they consider to be a frivolous argument and when the defense of federal law is reasonable, but if you go in expecting that the next Attorney General will declare wide swaths of federal gun laws indefensible in court, you are very likely to be disappointed.