DOJ Accused of Gutting Major Second Amendment Win

In his latest video, attorney William Kirk of Washington Gun Law says a major 2A win just got “whittled down to next to nothing.” He’s talking about Reese v. ATF, where a Fifth Circuit panel struck down the federal prohibition on handgun sales by FFLs (federal firearms licensees) to adults aged 18–20.

According to Kirk, the triumph was clear: the appellate court concluded the statute is unconstitutional on its face. But when the case returned to the trial court to finalize the judgment – the part that actually dictates who gets relief – Kirk says the Department of Justice (DOJ) successfully argued to cabin the ruling so narrowly that almost no one is covered.

What the Fifth Circuit Actually Said

Kirk emphasizes the key point: the Fifth Circuit recognized 18–20-year-olds as part of “the people” protected by the Second Amendment and invalidated the federal sales ban as facially unconstitutional. That matters. A facial ruling doesn’t just save a handful of plaintiffs; it declares the law incompatible with the Constitution across the board. Kirk even points to a footnote where the panel declined to reach any narrower “as-applied” claim because the facial win mooted it. In plain English: the appellate court said the law’s a no-go, period.

Where Lawsuits Are Won or Lost After the Win: Remedies

Constitutional cases have two phases: liability and remedy. Mark W. Smith of The Four Boxes Diner draws the same map: first you prove the law violates the Constitution; then you fight over what the court will actually order (and who benefits). Smith says this is where things went sideways. On remand, the district judge, who had previously ruled against the plaintiffs before being reversed, had to craft the final judgment. Instead of applying the Fifth Circuit’s facial ruling broadly, the trial court adopted a cramped remedy that Smith views as inconsistent with Supreme Court precedent on associational standing (the doctrine that lets groups like SAF and FPC sue for their members).

DOJ’s Narrowing Play – and the “2020 Members Only” Catch

Per Kirk’s summary of the government’s proposed judgment, DOJ wanted relief limited to: (1) the three named individual plaintiffs; and (2) members of the Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), or Louisiana Shooting Association who were members on the day the lawsuit was filed in 2020 – and who could be identified and verified by those groups. Kirk blasts this as both impractical and unnecessary, noting it effectively pressures SAF/FPC to cough up membership rolls and shrinks the universe of covered 18–20-year-olds to a vanishing point (how many 13–15-year-olds were SAF/FPC members in 2020?). SAF has said publicly it will not hand over membership lists.

Brandon Combs: The Judge Went Even Further Than DOJ

Brandon Combs, head of FPC, told Cam Edwards on Bearing Arms’ Cam & Co that the district court’s judgment “essentially nullifies” the Fifth Circuit win by limiting relief to almost no one – even inside the Fifth Circuit. Combs adds a twist: in FPC’s view, the judge went beyond what DOJ asked by ordering the organizations to turn over member lists by a deadline. DOJ, Combs notes, didn’t explicitly demand those lists in its brief, presumably to avoid First Amendment problems; the judge imposed that requirement on his own. Either way, FPC and SAF say they won’t comply, and they’re moving to stay and appeal the judgment’s overreach. 

Smith’s Read: How a Fight Over Nationwide Injunctions Warped This Case

Smith argues DOJ’s position is partly collateral damage from broader fights over nationwide or universal injunctions (he references a Supreme Court decision he calls “CASA” limiting trial courts from issuing nationwide relief for non-parties). In Smith’s telling, DOJ has been trying to constrain remedies to the actual parties in many cases for strategic reasons, and that stance bled into Reese. 

The problem, he says, is that associational standing is different: when an organization sues on behalf of members and wins, the relief runs to those members – not just the handful of named plaintiffs, and not just the members who joined years earlier. He cites classic Supreme Court cases (like Hunt v. Washington State Apple Advertising Commission) as the black-letter rule.

A Sliver of Good News Inside the Fifth Circuit

Smith also flags something important: DOJ has represented that, as a practical matter, it will not enforce the federal 18–20 FFL handgun sales ban within the Fifth Circuit (Texas, Louisiana, Mississippi) in the wake of Reese. That’s meaningful for residents there: if you’re 18–20 and otherwise eligible, the federal government says it won’t prosecute sales through FFLs in those states. But Smith emphasizes the fight isn’t over folks in Fifth Circuit territory – it’s about everyone else across the other circuits, and whether SAF/FPC members outside the Fifth get the benefit of the appellate win without joining a new case or exposing membership rosters.

Cam Edwards: The “Two DOJs” Problem and a Mixed Second Amendment Record

Cam Edwards voices frustration that DOJ’s Civil Rights Division – which has taken commendable pro-2A steps in some contexts – was also involved in briefing that produced such a narrow remedy here. Combs goes further, telling Edwards he sees “two DOJs”: one willing to challenge state/local gun restrictions, and another that reflexively defends federal gun laws and tries to minimize the impact of adverse rulings against them. Edwards highlights the contradiction with promises to respect the Second Amendment; Combs says DOJ declined to take Reese to SCOTUS because it would likely lose on the merits, while choosing to push other, less favorable cases up the ladder.

Why the “Member List” Fight Is a First Amendment Fight, Too

Smith underscores that DOJ’s own brief acknowledged organizations can have a First Amendment right to keep member identities private (think back to classic NAACP cases). That’s why he says it’s wrong, in law and in principle, for a court to condition constitutional relief on disclosure of membership rolls. Combs offers a practical alternative: ATF could simply advise FFLs that if a buyer attests (or presents a membership card) showing they’re SAF/FPC members, that’s enough for compliance outside the Fifth Circuit while Reese is sorted out. It would avoid forced disclosure and square with associational standing. 

Remedies Should Match the Win

If the Fifth Circuit said the ban is facially unconstitutional, a district court shouldn’t turn around and engineer a remedy that protects virtually no one. Narrowing nationwide injunctions is one debate; refusing to honor associational standing is another. The latter shouldn’t be sacrificed on the altar of the former. 

Smith’s point feels right: organizational plaintiffs exist precisely to vindicate rights for their members without forcing every 19-year-old to file a separate lawsuit. And Combs’ point about the judge overshooting even DOJ’s ask is a red flag. As a matter of judicial humility, the trial court should implement the appellate win, not smother it with conditions the Fifth Circuit didn’t require.

What Happens Next – and Why It Matters Beyond 2A

Combs says FPC will seek a stay of the membership-list directive and then appeal. Smith predicts higher courts will correct the judgment to cover all members of the prevailing organizations, consistent with long-standing Supreme Court precedent. Kirk, for his part, is blunt: the DOJ’s approach “ruined” the win. However the technical fix comes, the stakes are larger than this one law or this one age group. If courts can sidestep associational relief by forcing groups to dox their members or by arbitrarily tying relief to a years-old join date, the chilling effect won’t stop with gun litigation. It will seep into every constitutional fight where associations do the heavy lifting.

Practical Bottom Line for 18–20-Year-Olds Today

Inside the Fifth Circuit, Smith says DOJ isn’t enforcing the FFL handgun sales ban; that should translate into real-world access for otherwise-eligible 18–20-year-olds in Texas, Louisiana, and Mississippi. Outside the Fifth Circuit, it’s murkier. Combs’ suggested interim fix, allowing an attestation or membership proof at the point of sale, would provide clarity without trampling First Amendment associational rights. Until the judgment is stayed and corrected (or ATF issues clear guidance), expect uneven compliance and confusion – exactly the opposite of what a facial constitutional ruling is supposed to produce.

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