The Department of Justice hasn’t been as great on guns as many of us might like. Sure, it’s far better than any previous DOJ that any of us can remember, but we wanted better.
The NSSF is happy enough, but plenty of people aren’t.
However, what if some of what seems to be anti-gun movement is something else? What if it’s setting the stage for some pro-gun shenanigans?Could the Trump Department of Justice (DOJ) protection of the National Firearms Act (NFA) in Silencer Shop v BATF be a tactical move to bring the case to the Supreme Court?
Could the Trump Department of Justice (DOJ) protection of the National Firearms Act (NFA) in Silencer Shop v BATF be a tactical move to bring the case to the Supreme Court?
The Supreme Court case United States v Windsor upended centuries of precedent and jurisprudence in the United States by finding a key part of the Defense of Marriage Act to be unconstitutional. The Obama administration played a key part in this policy shift by claiming the act was constitutional, thus protecting “standing” in the case. Later, the Obama DOJ switched sides and agreed with Windsor that the Defense of Marriage Act was not constitutional. The Supreme Court ruled in favor of Windsor in a 5-4 decision.
According to Mark Smith, prominent Second Amendment advocate and member of the Supreme Court Bar, and frequent writer at AmmoLand, the tactic of the federal government arguing for one side of a case until the case reaches the Supreme Court, then switching sides, has come to be known as “pulling a Windsor”. The DOJ defense of the NFA in the Fifth Circuit is very unpopular with Second Amendment supporters. From John Crump at AmmoLand:
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Mark Smith argues the same sort of tactic may be at work in the Silencer Shop v BATF case. The Supreme Court will not hear cases unless there is an actual dispute where the parties have standing in the case. The Trump DOJ brief ensures there is an actual dispute, and the DOJ continues to have standing. The Trump DOJ has done more than any administration in history to restore rights protected by the Second Amendment.
Now, I’m not entirely sure if Smith is right here, but it’s an intriguing possibility, and it kind of goes along with the plan outlined by guntuber and congressional candidate Brandon Herrera when his name was being floated as a possible director of the ATF. Basically, that plan called for taking the cases up the judicial food chain before standing there before the judge and saying, “Yeah, this is unconstitutional as hell.”
Herrera admits he didn’t cook this plan up on his own. This was something that came out of discussions with others, at least some of whom have had chats with people in the administration over the last year or so.
So while I can’t say definitively that Smith is right, I think he might be onto something here, and if so, it’s glorious.
It would also explain why the DOJ is defending federal gun control while helping to go after state measures. It’s because there’s going to be contention in the state laws, so there’s no reason for them to do anything but defend gun rights. Defending federal laws puts them in a position where the Supreme Court could overturn everything.
Maybe it’s just wishful thinking on my part here, but this is an incredibly plausible scenario considering Smith’s credentials and insight, along with Herrera’s plan from earlier this year. It fits rather neatly.
It’s not the only reason that would fit neatly with the actual facts, of course, but it’s a big one and we can all hope Bondi and company are planning to “pull a Windsor” on this.
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