Why Is the Trump Administration Attacking Gun Rights In Court?

Attorney Tom Grieve – a former prosecutor and now a prominent criminal-defense and firearms lawyer – says the quiet part out loud: in a First Circuit case, the Trump Administration’s Department of Justice argued against broader Second Amendment protections while some usual gun-control voices argued for them. As Grieve frames it, the federal government’s litigation position looks like it’s borrowing the gun-control playbook, and that has serious implications for who counts as “the people” protected by the Second Amendment.

Tom Grieve’s Central Question: Who Are “The People”?

According to Tom Grieve, the government’s position boils down to this: the Second Amendment protects only “law-abiding citizens.” That sounds tidy until you ask who draws that line and how. Grieve urges viewers to think beyond the rhetoric: if “law-abiding” becomes the passkey for constitutional rights, are those rights conditional on never crossing a legal line, however small? He points out that courts don’t make you forfeit the First, Fourth, or Fifth Amendments for a rolling stop or late taxes. His core point: the government is carving a special exception for the Second Amendment that we don’t tolerate for other fundamental rights.

Are Constitutional Rights Conditional On Perfection?

As Grieve quips, if rights hinged on spotless conduct, the slightest infraction might void your protections – an absurd result no court would accept. My view: he’s right to press this. In our system, punishment follows due process for specific offenses; it is not a blanket revocation of a constitutional safeguard. Creating a “good behavior” gateway for gun rights is not only doctrinally shaky, it’s dangerously elastic. Once normalized, it invites politicians and prosecutors to move the goalposts for who counts as “law-abiding,” especially in politically charged seasons.

Undocumented Immigrants And The Second Amendment

Tom Grieve emphasizes the immediate dispute: whether undocumented immigrants (choose your term – illegal aliens, undocumented workers, foreign nationals without status) are included within “the people” protected by the Second Amendment. If the defense is right, people physically present in the U.S. fall within the Amendment’s umbrella; if the government is right, only citizens (or some subset of “law-abiding” ones) do. 

Grieve notes the high stakes: a ruling for the defense could undercut the 1968 federal ban on firearm possession by those unlawfully present, while a ruling for the government could formalize two tiers of constitutional access to a core right. My take: that’s precisely why history, text, and tradition – not politics – must do the heavy lifting.

What Bruen Requires – And Why It Matters Here

Grieve walks through the Supreme Court’s 2022 Bruen decision. Before Bruen, courts “balanced” public safety versus individual rights and, as Grieve bluntly puts it, the Second Amendment lost about 97% of the time. Bruen tossed that interest-balancing and put the burden on the government: modern gun restrictions must be consistent with this nation’s historical tradition of firearm regulation – roughly the founding era through the 19th century. If the government can’t show a relevant historical analogue, the law fails. That standard frames this case: does our tradition support disarming non-citizens present here unlawfully?

History’s Gaps: Illegal Immigration Didn’t Exist In 1791

Here, Tom Grieve makes a crucial point: as a legal category, “illegal immigration” didn’t really exist at the founding. The federal immigration architecture emerges late in the 19th century. Without direct founding-era analogues, the DOJ rummaged for proxy examples, Grieve says – laws that disarmed groups deemed outside the “political community,” including Black people, Native Americans, Catholics, and Loyalists who refused to swear allegiance. 

The government’s theory: those out-groups weren’t part of “the people,” and modern undocumented immigrants likewise stand outside today’s political community. My view: that’s a treacherous analogy; many of those historical disarmament practices were rooted in oppression, not neutral principles.

DOJ’s “Political Community” Argument Meets Skeptical Judges

As Grieve recounts, the First Circuit panel pushed back. One judge asked whether someone here unlawfully is “categorically less loyal” than a person here lawfully who has zero intention of becoming a citizen. That question targets the heart of the government’s rationale: equating legal status with loyalty. Plenty of native-born citizens openly disparage the United States, cheer for other nations, or reject civic obligations. Grieve highlights this to show the loyalty filter is wobbly and potentially arbitrary.

Defense’s Counter: Subjugation, Not Safety

According to Tom Grieve, the defense argued that the DOJ’s history is misused. Those founding-era disarmament laws were largely tools of subjugation (against Black people, religious minorities, Indigenous communities) or wartime measures (Loyalists during revolution), not general public-safety regulations of the sort Bruen contemplates. In a quiet New England setting, the defense argued, those analogues don’t fit. My take: that’s the stronger historical posture under Bruen. The test is tradition, not a scavenger hunt for isolated, discriminatory outliers.

The Stakes: Redrawing The Boundaries Of “The People”

Grieve stresses the doctrinal consequence: if “the people” in the Second Amendment is shrunken to only “law-abiding citizens,” it invites a two-step erosion – first by citizenship, then by ever-expanding definitions of “law-abiding.” Conversely, a win for the defense could unravel parts of post-1960s federal firearm prohibitions for non-citizens without status. Neither outcome is trivial. My view: the Court should stick to text and history. The phrase “the people” appears across the Bill of Rights; any bespoke, narrower reading for the Second Amendment should carry a heavy burden of proof.

A Politically Inverted Fight

As Tom Grieve notes, this case scrambles the usual coalitions. Some conservative actors appear aligned with restrictive views in service of immigration policy, while some liberal voices defend broader reading of the right to keep and bear arms – at least for this specific plaintiff class. Grieve calls it a “spaghetti ball” of politics. I’d go further: it’s a reminder that principles outlive partisan cycles. If we contort the meaning of “the people” today to win an immigration skirmish, that contortion can be repurposed tomorrow against other disfavored groups – or against you.

What Comes Next In The First Circuit

Tom Grieve reports that oral arguments are done; a written opinion from the First Circuit is pending. Given that the Supreme Court accepts only a tiny fraction of petitions (roughly 1–2%, as Grieve notes), the First Circuit may be the final word unless the justices perceive a clean Bruen question worth resolving now. In the meantime, the litigation spotlights a core doctrinal choice: Will courts unify the meaning of “the people” across rights – or splinter the Second Amendment into a special, contingent category?

Principles Over Politics

I agree with Tom Grieve that the government’s “law-abiding citizen” formula is far too malleable to anchor a constitutional boundary. Bruen demands historical tradition, not general vibes about who deserves a right. If the founding record lacks clean analogues for a modern immigration-status ban, the government’s case is weak; if it leans on discriminatory or wartime disarmament to bridge the gap, that history should cut against, not for, its position. Even if one favors tighter immigration enforcement, using the Second Amendment as the lever creates precedent that can be turned against millions of citizens the next time “law-abiding” gets redefined.

The Second Amendment Shouldn’t Be A Second-Class Right

Per Tom Grieve, this fight isn’t ultimately about who you like or what policy you prefer; it’s about whether courts treat the Second Amendment with the same constitutional seriousness as the rest of the Bill of Rights. However the First Circuit rules, the question it raises – who are “the people” – will echo far beyond immigration. If the answer is “whoever the government says it is this year,” then the right to keep and bear arms stops being a right and starts being a permit. That’s not what Bruen, or the Constitution, demands.