Opinion
When Justice Department officials anonymously floated the idea of prohibiting gun possession by transgender people last week, they may have hoped to score points with President Donald Trump’s base or get a rise out of “woke” Democrats.
Instead, they elicited howls of outrage from every major gun rights group.
It is not hard to see why. This half-baked proposal, which has no obvious statutory basis, is flagrantly inconsistent with “the right of the people” to “keep and bear arms” — a right that Trump claims he is keen to protect.
The immediate impetus for internal discussions of disarming transgender Americans was the Aug. 27 shooting that killed two children and injured 21 other people at the Annunciation Catholic Church in Minneapolis.
Police identified the perpetrator, who killed herself after attacking the worshipers, as a 23-year-old transgender woman.
CNN reported that “Justice Department leadership is seriously considering whether it can use its rulemaking authority” to “declare that people who are transgender are mentally ill and can lose their Second Amendment rights to possess firearms.” It quoted an unnamed Justice Department official who explained that the goal would be to “ensure that mentally ill individuals suffering from gender dysphoria are unable to obtain firearms while they are unstable and unwell.”
The implication was that Congress had given the Justice Department broad authority to strip “mentally ill individuals” of their Second Amendment rights. The impact of such a power could be sweeping, since survey data indicate that half of all Americans will qualify for a psychiatric diagnosis at some point in their lives, while a quarter of them do in any given year.
Under current law, however, someone described as “mentally ill” loses their gun rights only if they have been “adjudicated as a mental defective” or “committed to a mental institution,” both of which require a court order based on an individualized assessment. That rule is unreasonably broad, since it applies to anyone who has ever been subjected to involuntary psychiatric treatment, no matter how long ago that happened, whether or not they were ever deemed a threat to others, and regardless of their current psychological state.
Still, even that provision is not broad enough to justify a policy of disarming people based solely on a psychiatric label. “Red flag” laws, which authorize court orders that suspend people’s gun rights, also require more than that: a judicial determination that someone poses a threat to themself or others.
The latter process is plagued by due process problems, which explains why it raises the hackles of Second Amendment advocates.
The Second Amendment isn’t up for debate. pic.twitter.com/AQwouV4VDd
— NRA (@NRA) September 5, 2025
So it is not surprising that the National Rifle Association took a dim view of the Justice Department discussions, saying it “does not” and “will not” support “sweeping gun bans that arbitrarily strip law-abiding citizens of their Second Amendment rights without due process.”
Under “federal statutes and binding Supreme Court precedent,” the Firearms Policy Coalition warned, “the government cannot impose a categorical ban on an entire class of peaceable people.” The Justice Department’s trial balloon elicited similar objections from Gun Owners of America, the Second Amendment Foundation, the National Association for Gun Rights, and the Citizens Committee for the Right to Keep and Bear Arms.
Even if Congress approved a ban like the one the Justice Department is contemplating, it is hard to see how it would be “consistent with this Nation’s historical tradition of firearm regulation” — the Second Amendment test that the Supreme Court established in 2022. Since then, several federal appeals courts have ruled that categorical statutory bans on gun ownership, whether based on illegal drug use or criminal convictions, may be unconstitutional as applied to specific individuals.
In one of those cases, the U.S. Court of Appeals for the 8th Circuit held that “nothing in our tradition allows disarmament simply because (someone) belongs to a category of people” that “Congress has categorically deemed dangerous.”
Such a ban would be even more constitutionally questionable if it were imposed by bureaucratic fiat.
About Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. During two decades in journalism, he has relentlessly skewered authoritarians of the left and the right, making the case for shrinking the realm of politics and expanding the realm of individual choice. Jacobs’ work appears here at AmmoLand News through a license with Creators Syndicate.
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I find it amazing how the massive failure of RedFlag isn’t even talked about very much.
I don’t think it is half baked. I think it is a brilliantly thought out tactic. Liberal gun control people will be screaming about a lack of due process. Oops. They will be admitting that red flag laws are bad for the same reason, lack of due process.
Libertarian view, as expected from Sullum.
While people with gender dysphoria may not have been “adjudicated”, they are still not OK. Add artificial hormones battling with the body’s natural hormones and there’s another factor for problematic behavior.
Unfortunately, these days, negative comments can’t be made without accusations of being a phob-a-phobe or something.
Asking for surgery on otherwise healthy body parts sure sounds like a strong acknowledgment of mental illness, even if it hasn’t gone through the legal system.
Oxymoron, moron: “transgender woman.” No, this is a male. Thank you. Not a MAN, mind you, but a genetic male. Let’s keep our language clear. When a human thinks he or she is a bat or a bear cub that is a mental disorder. Treatable. One worthy of compassionate care. Jesus can fix this. When a dude thinks he is a chick he is either an actor or he is acting out a mental disorder. Treatable. One worthy of compassionate care. Jesus can fix this. Demonic language is twisted. Pentecostal Christians like me are routinely deemed ‘hate filled’ because we… Read more »
Personally I would rather spend time on the shooting range with (or have as a neighbor) Kaitlin Jenner, than Chuck Schumer, or AOC.
Crazy is Crazy, but some Crazier than others.
After Kirk’s murder yesterday I have completely switched my opinion on this subject. People who demonstrate mental illness should not be allowed to possess arms.
she? he was screwed up hated himself, some more screwed up idiot convinced him he was a she gave him drugs further screwing up his brain the “doctor” that created this franksteins monster should bear the legal wrath as well as his mother that bought in to this bs
People think that they were born in the wrong body are insane. Insane people are dangerous because their actions are based upon bizarre thinking. Thus insane people do not have the full panarama of constitutional Rights. The RKBA is a Right that they don’t have.
Jacob Sullum is a mamby-pamby, pseudo scholar who does not know scat from shinola. Removing dangerous items from the transgender and LGBQT ABC XYZ crowd of psychotic freaks is morally and ethically sound.
The NRA actually got this right. An American citizen cannot be denied their 2A rights, without due process.
This proposal from the Trump admin’s beyond stupid. He hasn’t learned a thing from his previous 2A blunders.