Brady in Slate: “Trump DOJ Refuses to Rule Out Second Amendment Right to Nuclear Weapons”

WASHINGTON, D.C., March 31, 2026 — In a recent Slate opinion piece, Brady Senior Director of Constitutional Litigation, Shira Feldman, and Brady Senior Counsel of Constitutional Litigation, Tess Fardon, discuss the recent news that the Trump Department of Justice refused to rule out nuclear weapons from the kinds of arms it claims the average citizen may be entitled to possess under the Second Amendment as its lawyers challenge common-sense gun violence prevention laws in federal courts.

Read the full op-ed below or online here.

Shira Feldman, Tess Fardon, and Brady experts are available for comment and interviews live, via phone, or Zoom. To be connected with an expert, please contact gcrews@bradyunited.org.

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Trump DOJ Refuses to Rule Out Second Amendment Right to Nuclear Weapons

By Shira Lauren Feldman & Tess M. Fardon

Of the sheer number of absurdist stories you may have missed in the news recently: In public court filings slamming common-sense gun violence prevention laws, President Trump’s Department of Justice refused to rule out nuclear weapons from the kinds of arms it claims the average citizen may be entitled to possess under the Second Amendment.

How did we get here, where the top law enforcement lawyers in the country refuse to draw any line at weapons that can be used in lawful self-defense? And why is self-defense an important consideration in showing how gun violence prevention laws align with the Second Amendment?

In the last year, Trump’s DOJ has taken an extreme pro-gun rights view of the Second Amendment, with its lawyers making clear their view that the public has a constitutional right to access an extraordinarily broad range of weapons for self-defense. Trump’s DOJ has taken a remarkable stance in recent court filings—including in attacking state assault weapon bans—that any arm that is simply in “common use” by law-abiding citizens for lawful purposes cannot be regulated, regardless of how dangerous that arm is, or how unsuited to lawful self-defense.

Now, to be clear, DOJ lawyers do not argue that nuclear weapons are currently protected by the Second Amendment. But that is based on the view that nukes could not become popular enough to be protected, not because of the unmistakable threat to public safety that civilian access to nuclear warheads would create. Under this dangerous logic, if nuclear weapons become more common, all bets are off: civilians might then be constitutionally entitled to acquire and possess them. And though the Trump DOJ’s discussion of nuclear weapons may seem farfetched, the same logic would apply to a grenade-launcher or bazooka.

DOJ’s position that any weapon, no matter the mass destruction it could cause, might be fair game for civilians if it happens to become popular defies common sense. But this is a direct result of a radical shift in the Supreme Court’s Second Amendment jurisprudence within the last two decades.

For two centuries, courts generally understood the Second Amendment to provide a collective right to keep and bear arms—that is, a right shared by officially organized militias, rather than provided to any one individual. This prevailing interpretation was upended in 2008 when the Supreme Court decided District of Columbia v. Heller, holding that D.C. could not ban the possession of handguns in the home. For the first time, the court described an individual right to keep and bear arms as protected by the Second Amendment. Then, less than four years ago, in New York State Rifle & Pistol Association v. Bruen, the court again expanded our understanding of the Second Amendment—including extending its protections outside the home by striking down New York’s requirements for a license in order to carry guns in public. The Roberts Court, with Justice Clarence Thomas writing for the conservative majority, concluded that the law was too discretionary. It also, critically, introduced an entirely new legal framework for Second Amendment interpretation. 

This new interpretation and framework have raised many questions about the limits on the right to keep and bear arms. One thing the Supreme Court made clear in these landmark cases, though, is that the core purpose of the Second Amendment is lawful self-defense. That purpose recognizes that the Second Amendment right is not limitless. Criminal laws limit how, when, where, and why deadly force—which includes the use of a gun—can be lawful. 

In addition to being nonsensical, DOJ’s refusal to exclude anything, even a nuclear weapon, from what the Second Amendment protects is contradicted by the state and federal laws that limit when someone can use a gun in self-defense.

Different states have different standards for showing that the use of a gun was a lawful act of self-defense (often described as “justifiable homicide”). Someone who shoots another person can avoid a criminal conviction only if they can show that they acted within the bounds of the law. A study we conducted of the law in three states––California, Florida, and Massachusetts—highlights some of the common principles that limit when shooting someone is justifiable, and therefore lawful.

In all three states, a defendant arguing self-defense must show that they were responding to a reasonable fear of imminent danger to justify the shooting. In California, courts have emphasized that imminence means that the danger must exist at the moment the fatal shot is fired. When there is no immediate threat, shooting someone to defend yourself is no longer reasonable or necessary or, therefore, lawful.

A second principle that limits when deadly force can legally be used is proportionality: shooting someone is only justified when it is a proportional response to the perceived threat. You can only use deadly force if the danger reasonably feared is imminent death, and there is no other way to prevent yourself from being killed. If a defendant shoots someone to respond to a threat of property damage, for example, that is not proportionate, and it is unlawful in many states. This includes Massachusetts, where courts consider factors such as the characteristics of any weapon used when evaluating whether a self-defense shooting was proportional. DOJ, meanwhile, says the characteristics of the weapon be damned. 

Many states also consider a person’s attempts to retreat, or otherwise avoid a perceived threat, when evaluating self-defense claims. These states generally require that an individual use every reasonable and available means to avoid the perceived danger before shooting can be considered “lawful.” Even in Florida, which has expansive and deadly “shoot first” or so-called “stand your ground” laws, you are only relieved of the duty to retreat when responding to a threat outside the home if you had the right to be in the place where you use your gun.

As Trump’s DOJ attacks gun violence prevention laws in states across the country and the District of Columbia, it is conveniently ignoring all three of these limits to claims of self-defense. Many of the laws challenged in court today, as trial and appellate courts have confirmed, are constitutional partly because they do not affect an individual’s ability to lawfully defend themselves. 

Consider the state assault weapon bans that Trump’s DOJ wants to eliminate. An assault weapon generally refers to a semi-automatic firearm that was designed and overwhelmingly used by the military as a weapon of war, uniquely lethal because of its rapid rate of fire and the extreme force of the bullets that it shoots. This same rate of fire does not allow the shooter to continually reassess the threat to themselves while shooting. In states that require constant reassessment of the threat before someone can lawfully shoot someone else, this is another reason that assault weapons can be restricted without violating the Second Amendment.

Similar logic can be applied to firearms training requirements. By the current DOJ’s own admission, adequate armed defense requires skill in using those arms. In order for an act of self-defense to be considered lawful in states that require a response to be proportional, the shooter must be able to use their weapon in a limited way to address only the imminent threat, and only for as long as the use of deadly force remains necessary. These assessment skills are gained, or sharpened, through appropriate firearms training. Laws that impose training requirements are thus constitutional in part because they further the Second Amendment’s purpose.

The constraints on lawful self-defense teach us a lot about which types of gun laws, and which types of guns themselves, are constitutionality protected. If the Supreme Court cares about being faithful to the purpose of the Second Amendment, it should bear these limitations in mind. 

And—seriously—courts should be able to draw a red line at nuclear weapons being outside the scope of lawful self-defense and Second Amendment protection.