Trump’s Second Amendment Executive Order: What You Need to Know

In a recent blog post, I detailed how to read an executive order like a political scientist. To refresh your memory, the main idea is that you need to take an adversarial approach—read critically and question everything. Sometimes what isn’t there is more important than what is. This week, I’ll be applying that same analytical framework to Executive Order 14206, titled “Protecting Second Amendment Rights.” President Trump signed this EO on February 7th, 18 days into the current term.

Section 1: Purpose

This EO’s statement of purpose is a good one. It’s concise, focused, and reasonable. Of particular note is that it points out how the Second Amendment “is foundational to maintaining all other rights,” which is a fundamental part of the current Second Amendment discourse.

Section 2: Plan of Action

“(a) Within 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President, through the Domestic Policy Advisor, to protect the Second Amendment rights of all Americans.”

For reference, the Attorney General is Pam Bondi and the director of the Domestic Policy Council is Vince Haley, a career lawyer and former speechwriter for the President’s most recent campaign. Politically, he’s an unknown quantity, so we can expect that he’ll do whatever Trump directs without making any noise.

One thing that bears pointing out is that the specification of “our citizens” may be counterproductive, as the Second Amendment does not apply exclusively to U.S. citizens (legal permanent residents and foreign nationals on certain types of visas may own firearms). This EO could therefore potentially face legal challenge on the basis that only investigating infringements against citizens to the exclusion of non-citizens violates the equal protection clause of the Fourteenth Amendment. That said, I don’t think that aspect of the order will ever be subject to legal scrutiny because, as we will see, this EO doesn’t authorize any real government action that could even be challenged in court.

“(b) In developing such proposed plan of action, the Attorney General shall review, at a minimum:”

Now let’s move on to the real meat and potatoes. We’re about to get a list of targets the President wants AG Bondi to inspect for violations of the Second Amendment.

“(i) All Presidential and agencies’ actions from January 2021 through January 2025 that purport to promote safety but may have impinged on the Second Amendment rights of law-abiding citizens;

(ii) Rules promulgated by the Department of Justice, including by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, from January 2021 through January 2025 pertaining to firearms and/or Federal firearms licensees;”

These two paragraphs collectively raise a big red flag. BATFE has long been a rogue agency, overstepping its legal and constitutional bounds as a matter of course. Restricting the time-frame under scrutiny to the previous administration corrupts what could otherwise have been a flawless executive order into an obviously politically motivated hit job. What reason does this administration have for deliberately excluding ongoing infringements of the Second Amendment that predate Biden’s presidency? The cynical answer is that the Trump White House ordered this investigation less out of concern for civil liberties and more out of concern for its own public image—in short, it wants a propaganda victory.

That said, we all know that the Biden administration took a number of executive actions to suppress legal exercise of the right to keep and bear arms; the fact that this EO is focused on exposing and potentially reversing those actions is definitely a good sign.

“(iii) Agencies’ plans, orders, and actions regarding the so-called “enhanced regulatory enforcement policy” pertaining to firearms and/or Federal firearms licensees;”

This refers to ATF’s “zero tolerance” policy. Although billed as a crackdown on crooked dealers with a history of selling to gangs, this policy effectively ordered the Bureau to shut down FFLs indiscriminately, mostly over honest errors, instead of helping them fix their processes to ensure compliance.

“(iv) Reports and related documents issued by the White House Office of Gun Violence Prevention;”

As far as I’m aware, the OGVP really didn’t do much during its brief existence, so there shouldn’t be much for the Attorney General’s office to go through here.

“(v) The positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights;”

Well, it looks like this was a lie. Even though the recently-decided VanDerStok case had the Trump administration’s lawyers defending Biden’s policies, AG Bondi apparently refused to drop the case, and it came to a highly unfavorable 7-2 decision.

“(vi) Agencies’ classifications of firearms and ammunition; and

(vii) The processing of applications to make, manufacture, transfer, or export firearms.”

The “processing of applications” is a lot more important than it may initially seem. The optimist in me says that if anything comes of this subsection, we may end up with shorter processing times for Forms 1 and 4 (applications to manufacture and transfer NFA items, respectively). It isn’t the kind of NFA reform we all want, but reclassification would require a literal act of Congress, so we’ll take what we can get.

Conclusion

The rest of Executive Order 14206 is mainly procedural boilerplate. I won’t copy it all here; you can read it for yourself if you want. All in all, this EO is definitely a good sign—it’s the closest in many years the White House has come to serious action in favor of the Second Amendment.

What stick out to me more than the good things it does, however, are the good things it doesn’t do. First of all, note that what we have in front of us is more of a statement of policy than an implementation of it. The Trump administration isn’t directly ordering the AG’s office to drop anti-2A court cases, for example, it’s only ordering the AG to review ongoing anti-2A court cases. Too bad that didn’t work. Additionally, we should all take a hard look at the fact that the EO’s time period of focus is limited to the last four years, to the exclusion of all other ongoing anti-gun policies. It’s absolutely contemptible that the right to keep and bear arms has been turned into a political football one administration can use as an excuse to go after another.

All of that being said, we have already seen some favorable action as a result of this statement of policy, namely a repeal of “zero tolerance.” In fact, part of why this blog post is so late is that new developments keep happening that have made me add to it. Does this mean the next four years will be our time in the sun? That remains to be seen.