The Justice Department has formed a Second Amendment Section in its Civil Rights Division, a step that looks promising for gun‑rights advocates. Yet the DOJ continues to defend broad federal bans — notably 18 U.S.C. § 922(g)(1) and § 922(g)(3) — that disarm people with nonviolent records or lawful drug use. Courts are split, and critics say discretionary restoration procedures do not fix constitutional defects under Bruen’s historical‑tradition test. Advocates urge the DOJ to stop defending overbroad statutes and instead support litigation that aligns with constitutional history.
DOJ Creates Second Amendment Unit — But Still Defends Broad Gun Bans
Assistant Attorney General Harmeet Dhillon | Dominic Gwinn/Zuma Press/Newscom
The Justice Department has launched a new Second Amendment Section inside its Civil Rights Division — a move that on its face signals stronger federal advocacy for firearm rights. Yet the section’s stated priorities and the DOJ’s ongoing legal defense of sweeping federal prohibitions raise questions about how far the Department will actually go to protect the right to keep and bear arms.
What the New Unit Says—and Why It Matters
Harmeet Dhillon, the assistant attorney general who heads the Civil Rights Division, told Fox News she is “really excited” about the new unit and said it will work to “protect and advance our citizens’ right to bear arms as part of our civil rights work.” Dhillon indicated the section may challenge barriers to concealed-carry permits — for example, “multi-thousand-dollar costs” and “unreasonably long delays” — and could contest certain state bans on firearms that she believes should be protected under recent Supreme Court precedent.
But the Department’s mission statement repeatedly refers to protecting “the natural firearm rights of law-abiding American citizens,” and ensuring that “law-abiding American citizens may responsibly possess, carry, and use firearms.” That “law‑abiding” qualifier is notable because it neither appears in the Second Amendment’s text nor figures directly in the historical-tradition test the Supreme Court adopted in Bruen. Taken literally, the phrase could exclude millions of peaceful Americans from the category of “the people” whom the Constitution protects.
Legal Tension After Bruen and Heller
District of Columbia v. Heller used the phrase “law‑abiding citizens” in describing typical possession and reaffirmed that the right belongs to “the people.” But subsequent litigation has clarified that the Court’s language should not be read to let legislatures label broad classes of people outside constitutional protection. In Range v. Attorney General (3d Cir.), the court rejected the notion that the Second Amendment applies only to those casually labeled “law‑abiding,” holding that categorical exclusions empower legislatures to strip rights by choosing labels rather than demonstrating historical precedent.
Range involved 18 U.S.C. § 922(g)(1), the federal ban on firearm possession by anyone convicted of “a crime punishable by imprisonment for a term exceeding one year.” The 3rd Circuit found applying that statute to Bryan Range — whose decades‑old conviction for a $2,458 food‑stamp fraud triggered the ban despite a mild sentence — unconstitutional as applied to him because the government failed Bruen’s historical‑tradition test.
Split Among The Circuits
Since Bruen, courts are divided. Several circuits have upheld § 922(g)(1) broadly, but at least the 3rd, 5th, 6th, and 7th Circuits have recognized that the statute may be unconstitutional as applied to people with nonviolent records. The Justice Department has defended § 922(g)(1) throughout the Biden administration and has continued that defense under the current leadership, even as some circuit courts narrow the statute’s reach.
Petitions, Discretionary Relief, And Criticisms
One current vehicle is Melynda Vincent’s petition to the Supreme Court. Vincent, barred under § 922(g)(1) after a bad‑check conviction 17 years ago, asks the Court to resolve the circuit split and apply Bruen’s historical test to categorical disarmament. The Solicitor General argues Vincent cannot prevail because the Department has revived a discretionary restoration process through which the Attorney General may restore rights to individuals deemed unlikely to be dangerous. Critics counter that discretionary relief cannot cure a constitutional defect: people should not have to petition for rights they never should have lost.
Drug‑User Ban And Upcoming Cases
The Department likewise defends 18 U.S.C. § 922(g)(3), which bars firearm possession by any “unlawful user” of a controlled substance. The statute reaches many people who pose no clear danger, including cannabis consumers in states that have legalized marijuana. Recent appellate decisions — including the 5th Circuit in Connelly and the 8th Circuit in Cooper — have questioned the historical basis for disarming sober, nonhabitual users, and the Supreme Court has agreed to hear United States v. Hemani on related grounds.
In its briefs, the government sometimes characterizes these bans as targeting only habitual or dangerous users, but the statutory text is broader and courts have flagged the potential mismatch between the government’s litigation posture and the law’s effect.
Where Advocates Stand
Gun‑rights organizations such as the National Rifle Association, the Firearms Policy Coalition, and the Second Amendment Foundation urge the DOJ to adopt a consistent originalist approach and to stop defending broad disqualifications that lack historical justification. The FPC praised the new section but warned the Department continues to advance “harmful and anti‑originalist arguments” in ongoing cases.
Bottom line: The Second Amendment Section’s creation is a consequential development. But for the DOJ to credibly defend the right to keep and bear arms under Bruen and Heller, it must align its litigation positions with the historical‑tradition framework — and refrain from defending sweeping, historically ungrounded statutes that disarm many peaceable Americans.
