Over the last 24 hours, multiple media outlets (among them the Washington Times and CNN) have reported that Trump administration officials are considering whether and how to ban transgendered individuals from purchasing firearms. Using the late August tragic mass shooting spree by Robin Westerman in Minneapolis as an excuse to try to deny a basic constitutional right to law-abiding citizens is just the latest, and definitely the most crass, assault on individual rights contemplated by President Trump and Attorney General Pam Bondi.
Let’s take a brief look at how such a proposal would run afoul of not only the plain language of the Second Amendment but also other constitutional and statutory provisions:
Second Amendment: The Supreme Court has repeatedly affirmed an individual right to keep and bear arms (District of Columbia v. Heller, 2008; McDonald v. Chicago, 2010). A categorical denial of that right based solely on gender identity would constitute a direct infringement of the Second Amendment.
Fourteenth Amendment – Equal Protection Clause: A law that treats transgender people differently from other citizens would be subject to heightened scrutiny because gender‑identity discrimination is increasingly viewed as a quasi‑suspect classification (see Bostock v. Clayton County, 2020, which extended sex‑based discrimination protections to gender identity in employment). Applying a blanket gun restriction only to transgender individuals would likely fail any level of scrutiny, as it lacks a compelling governmental interest narrowly tailored to achieve that interest.
Supreme Court’s Bruen test (New York State Rifle & Pistol Ass’n v. Bruen, 2022): Under Bruen, any modern gun regulation must be consistent with the nation’s historical tradition of firearm regulation. Historically, the United States has never imposed a categorical gun ban on a class defined by gender identity. Therefore, if the Supreme Court remained faithful to its existing precedents, a transgender‑only ban would likely be found inconsistent with historical precedent and struck down.
Federal Gun Control Act of 1968 (18 U.S.C. § 922): The Act disallows firearm possession for (a) convicted felons, (b) persons adjudicated as mentally defective, and (c) certain unlawful users of controlled substances. It does not contain a provision that bars gun ownership on the basis of gender identity. Adding such a category would conflict with the statutory scheme and would require explicit congressional amendment; an executive‑branch rule alone would likely be subject to challenge as being beyond the Justice Department’s authority, particularly in light of the recent Loper Bright decision by the Supreme Court.
Administrative Procedure Act (APA): Any new rule that creates a new class of prohibited gun owners would presumably have to undergo notice‑and‑comment rulemaking and be justified as “necessary and appropriate” under the APA. A rule that simply labels all transgender people as “mentally ill” to trigger a gun ban would almost certainly be deemed arbitrary and capricious, violating the APA.
There is, of course, absolutely no published, peer-reviewed scientific evidence that transgendered persons are any more likely to commit violent crime than other citizens. However, they are clearly a disfavored class of citizens by the current regime, in the same way that homosexuals, Jews, communists, and others were viewed as Untermenschen by the Nazis.
If the Trump regime is now on a path of trying to ban gun ownership by transgendered persons, is the next step a gun confiscation program targeting that same group? Are there regime plans to target other disfavored groups with gun purchase bans or confiscations (Palestinian Americans, LGBTQ Americans, Democrats)?
While you consider those questions, consider these other very recent examples of Trump’s pro-Second Amendment rhetoric contradicted by reality.
Trump officials loudly touted their success in achieving passage of his “One Big Beautiful Bill” (OBBB) earlier this year, including a provision that repealed the National Firearms Act’s (NFA) $200 excise tax on short-barreled rifles and shotguns, as well as suppressors. Yet the ink was barely dry on the bill when multiple gun rights groups filed a lawsuit to overturn the NFA, given that its justification—tax enforcement—was no longer constitutionally valid. Why then has Attorney General Pam Bondi not issued an order or memorandum declaring that, in light of the OBBB’s passage, the Justice Department now considers the NFA to be unconstitutional and will therefore not enforce it?
Returning to the Westerman church shooting in Minneapolis, bear in mind that it took place directly adjacent to a school, thus placing the church and the shooter within a federal “Gun Free School Zone” (GFSZ). I note that the GFSZ statute imposes a 1,000-foot zone from the edge of the school property boundary as the “no guns” zone. Thus, even if a law-abiding gun owner had been near Westerman and in a position to intervene once she pointed a weapon at the church she targeted, that law-abiding gun owner could have been charged with a federal felony under the GFSZ law.
In light of the painfully obvious abject failure of the federal GFSZ law to stop a single school shooting over the last three decades, why haven’t Trump or Bondi called for its repeal instead of dreaming up unconstitutional schemes to disenfranchise law-abiding citizens, regardless of their race, gender, religion, or any other attribute?
If you’re a gun owner and vehement Second Amendment advocate (as I am), you should oppose any federal government attempts to take away gun rights from any group of law-abiding citizens … because you and I could be next.
