Spokesman Says DOJ ‘Re-evaluating’ Stances on Second Amendment Litigation

The Supreme Court on Monday once again took no action on either the Snope case challenging Maryland’s ban on so-called assault weapons or the Ocean State Tactical case challenging Rhode Island’s ban on “large capacity” magazines, but the Department of Justice made an announcement Monday morning that could have a major impact on several cases that are making their way to the Supreme Court. 

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.

— Chad Mizelle (@ChadMizelle47) March 24, 2025

That’s potentially very good news, at least when it comes to the issue of suppressors. Presumably the case that Mizelle is referring to is U.S. v. Peterson, which was recently highlighted by Gun Owners of America after Acting U.S. Attorney Michael Simpson in Louisiana filed a response to George Peterson’s request for an en banc hearing in the Fifth Circuit Court of Appeals agreeing with a three-judge panel that concluded suppressors aren’t “arms” protected by the Second Amendment. 

🚨BREAKING🚨

Acting U.S. Attorney Michael Simpson files brief for @TheJusticeDept arguing that silencers are NOT arms & are NOT protected by the Second Amendment. pic.twitter.com/PHd7IT72SP

— Gun Owners Foundation (@GunFoundation) March 17, 2025

What’s odd about that stance is that the National Firearms Act explicitly states that suppressors are firearms; a designation the panel chose to ignore in its ruling.

Peterson posits that suppressors are “an integral part of a firearm” and therefore warrant Second Amendment protection: “Inasmuch as a bullet must pass through an attached [suppressor] to arrive at its intended target, ”suppressors are used for casting and striking and thus fit Heller’s definition”. But that is wrong. A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense. And unless a suppressor itself is thrown (which, of course, is not how firearms work), it cannot do any casting or striking. While a suppressor might prove useful to one casting or striking at another, that usefulness does not transform a gas dissipater into a bullet caster. Instead, we agree with the Tenth Circuit that a suppressor “is a firearm accessory . . . not a weapon.” And while possession of firearms themselves is covered by the plain text of the Second Amendment, possession of firearm accessories is not. Accordingly, Peterson has not shown that the NFA’s registration scheme burdens a constitutionally protected right.

We don’t know exactly what the DOJ’s “re-evaluation” will lead to, but it doesn’t necessarily mean that Bondi is going to end up taking the position that suppressors are commonly owned arms used for lawful purposes and therefore fall under the Second Amendment’s protections. It’s possible that the DOJ could end up agreeing that silencers are arms by pointing to the statutory language of the National Firearms Act, while still maintaining the position that they are “unusual” enough to fall beyond the contours of the right to keep and bear arms and can therefore be restricted under the auspices of the NFA. 

I’m also curious to know what case besides Peterson are being reviewed and re-evaluated by the DOJ at the moment. We’ve seen filings in a couple of other matters where DOJ attorneys have asked for a pause on proceedings while Bondi’s examination is taking place, including a challenge to the ATF’s expanded definition of who is “engaged in the business” of dealing firearms, but those cases barely scratch the surface of all of the 2A-related litigation that DOJ has on its plate. What, if anything, will Bondi do about the case of Bryan Range, for instance? 

The Biden administration took the position that only “law-abiding citizens” possess the right to keep and bear arms, and argued in favor of keeping Range’s prohibition on the possession of a firearm in place 30 years after he pled guilty to a misdemeanor for falsifying his income on an application for food stamps. Range was sentenced to probation for the offense, but because it was punishable under Pennsylvania law at the time by more than a year in prison, he was also excluded from exercising his Second Amendment rights going forward. 

Range’s petition for a writ of certiorari is due before the Supreme Court in about a month, and Bondi will have a few weeks to submit her reply in the case, so she can’t kick that particular can too far down the road. President Trump can’t moot the case and restore Range’s right to own a gun through a pardon either, because Range wasn’t convicted of a federal crime. Bondi could, however, reverse the DOJ’s position and agree with Range that 18 U.S.C. § 922(g)(1) is unconstitutional, at least as it applies to him.