President Trump is currently directing the Department of Justice (DOJ) to try to find a way to disarm transgender Americans and take away their access to firearms. This proposed action is largely under the vague and false notion that identifying as transgender innately makes someone mentally ill. From a quick glance, this is a sad addition to a continued row against transgender rights that has occurred throughout Trump’s second term, including the end of transgender service in the military. But, upon further inspection, this is terrifying. Gun rights are some of the most protected and enshrined within our current legal system, and the consequences of this attempt to yank them out of Trans American hands could be some of the most impactful when it comes to legal equity in this country.
Ever since the 2008 case of District of Columbia v. Heller, expansive gun rights are the constitutional law of the land. The author of the decision, Justice Antonin Scalia, empowered the operative clause of the Second Amendment, stating that the Constitution gives a right to bear arms regardless of the prefatory clause that, beforehand, had denoted access to guns as connected to militia membership. Since then, almost every decision from the Supreme Court has extended and strengthened the rights outlined in the operative clause, one of which stands out. McDonald v. Chicago in 2010 tied the right to bear arms to the 14th Amendment, putting these rights under full federal protection and as fully equal across citizens.
If you did not take or—like me—took AP Government an eternity ago, here is a refresher on the 14th Amendment. Enacted as part of the post-Civil War amendments, the 14th Amendment outlines what a citizen is—born or naturalized in the United States—and that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens.” The McDonald case puts the right to bear arms under these protections, meaning they are guaranteed to citizens nationally and cannot be abridged by states. So how would this DOJ take away guns at the federal level when gun rights are literally tied to the rights of all citizens? The answer lies in another Supreme Court Case.
United States v. Rahimi, from 2024, is the rare outlier in that it is one of the only decisions the Supreme Court has decided this century that limits access to guns. Stemming from a domestic situation and the restraining order that followed, the decision found that an individual who poses a “credible threat” to the safety of others can be forced to give up their guns by a court. This is the opening that the DOJ will likely use, and it is a terrifyingly slippery slope from there.
Now, hypotheticals. If the DOJ were to, likely through an executive order or something of that magnitude, ban trans-identifying citizens of the United States from owning firearms, it would be brought to court almost instantly, likely by a queer and/or trans rights group. If brought all the way to the Supreme Court, things could get dicey fast. As seen through the advent of terms like “presidential actions” in Trump v. United States, the current Supreme Court will not hesitate to create new vague precedents that will be hashed out in later decisions. The creation of a new term, such as “disturbed individual,” or the connection at all directly between trans people and the “credible threat” precedent in Rahimi would have devastating consequences. This would pave the way for 14th Amendment rights to be waived under a notion of mental disturbance, with the definition of what makes someone disturbed and a “credible threat to safety” left largely in the hands of those with bad faith and persecution in mind.
All it would take is for one lawyer defending the DOJ to mention the presence of gender dysphoria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and the compliance of an already federally subservient Supreme Court to possibly downgrade the legal status of all trans-identifying Americans to a lower level. Once it is clear that one right guaranteed to all citizens can be taken away, more could be eroded in subsequent cases. But would this even end with one group?
Apropos to this push is another federal agency, the Department of Health, with Robert F. Kennedy Jr. at the helm. Kennedy has been outspoken recently on trying to find the origin of autism, along with other neurodivergent diagnoses such as ADD and ADHD. All of these are also in the DSM-5, and, if the previous hypothetical goes into effect, could be the natural next target. For example, if an outspoken activist or politician has a legal diagnosis of autism, they could be classified as a “credible threat” or “disturbed individual,” and they are suddenly deprived of whatever rights the courts have decided that one classified as such does not have access to.
Of course, other groups in the LGBTQ community would also be clear next targets. Possibly in tandem with the reversal of gay marriage rights, the very notion of being gay could be slotted into this new legal precedent. The slippery slope referenced earlier takes a tailspin here. The creation of a new legal caste for Americans found to be innately mentally ill by the state is ripe for exploitation and could make hundreds of thousands of Americans have less legal rights than their fellow citizens..
The fallout from this fight over trans rights could bring out the ugliest elements of the increasingly heightened level of constitutional originalism across the legal world of America. As seen in the controversial paper of a Florida Law student a few months ago, the limits to this originalism are seemingly pushed further and further out. In this paper, the student argued that the rights outlined in the Constitution are not applicable to non-white people in the nation due to them not being imagined as part of the “original intent” outlined by the Founding Fathers. Fundamentally, it might not seem like another Trump-era intrusion on trans rights might have little impact. But, when it comes to how entrenched gun rights are without our current legal framework, it just might rock the boat in a way few could expect.