The Trump administration is drawing criticism from some gun rights advocates after the U.S. Department of Justice argued in a federal appeals court that machine guns are not protected under the Second Amendment.
The case, currently before the Fifth Circuit Court of Appeals, stems from an attempt to overturn a lower court ruling. In a brief filed by Assistant U.S. Attorney Jennifer Case, the government stated: “Machine guns are not the kind of arms protected by the Second Amendment.”
That argument challenges a ruling from U.S. District Judge Carlton Wayne Reeves, who had relied on the U.S. Supreme Court’s 2022 Bruen decision. That ruling emphasized that courts should evaluate gun laws based on the text of the Constitution and the historical understanding of the Second Amendment at the time it was ratified.
Critics of the DOJ’s position argue that the Second Amendment refers broadly to “arms,” without specifying types, and that Founding Era interpretations supported access to military-style weapons. Some cite Founding Father-era writings, including those of Tench Coxe, who wrote that “every terrible implement of the soldier” is a protected right of the people.
Supporters of the DOJ’s position reference historical and legal precedents that have allowed for certain firearms to be restricted, especially those deemed dangerous or unusual, or not “in common use” for lawful purposes such as self-defense. The 1986 Hughes Amendment, part of the Firearm Owners Protection Act, banned the civilian ownership of newly manufactured machine guns, though registered pre-1986 models remain legal under the National Firearms Act.
In the brief, Case also stated that machine guns are “not typically possessed by law-abiding citizens for lawful purposes” and are “highly lethal and well suited to criminal purposes.” However, gun rights advocates point to Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) data showing that crimes committed with legally owned machine guns are exceedingly rare.
The discussion also intersects with broader debates over the role of the militia clause in the Second Amendment. Some legal scholars and advocates argue that the intent of the amendment was to ensure citizens had access to arms equal to those of a professional military force, while others focus on an individual’s right to self-defense.
The DOJ’s broader position on gun rights has come under scrutiny in recent months. For example, critics cite the ongoing case of Matthew Hoover, a firearms YouTuber facing federal charges related to the promotion of a novelty item called an “Auto Key Card.” The ATF contends the item qualifies as an illegal machine gun part, although testing reportedly failed to demonstrate it could function as such.
This legal argument has raised questions about how consistently the DOJ is applying the administration’s stated position on Second Amendment rights. At the National Rifle Association’s 2025 Annual Meeting, President Trump reaffirmed his commitment to protecting those rights, telling attendees: “With me in the White House, your sacred rights will not be infringed.”
Some legal experts have proposed solutions to clarify the administration’s approach, including appointing a Second Amendment liaison within the Department of Justice. Others have recommended broader engagement with firearms industry stakeholders and constitutional scholars to improve consistency in future legal arguments.
The outcome of the current appeal—and the administration’s response to criticism—may determine how strongly its gun rights policies are received by supporters and legal observers alike.
