DOJ landmark opinion: Federal ban on mailing handguns is unconstitutional
The Department of Justice’s Office of Legal Counsel (OLC), led by Assistant Attorney General T. Elliot Gaiser, issued a groundbreaking memorandum opinion Jan. 15, concluding that 18 U.S.C. § 1715, the nearly century-old federal statute prohibiting the mailing of concealable firearms, is unconstitutional as applied to constitutionally protected arms, such as handguns.
This opinion marks a significant application of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, extending Second Amendment protections to the shipment of firearms via the U.S. Postal Service.
Enacted in 1927 as one of the earliest federal gun control measures, § 1715 declares “pistols, revolvers, and other firearms capable of being concealed on the person” nonmailable, with limited exceptions for government officials and licensed dealers. The law was originally designed to curb mail-order handgun sales that bypassed strict state and local regulations during the early 20th century. Today, combined with policies from private carriers like FedEx, UPS, and DHL, which largely prohibit nonlicensed individuals from shipping firearms, it effectively creates a near-total ban on private citizens mailing handguns.
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The OLC opinion argues that this restriction violates the Second Amendment. Handguns, the opinion notes, are “among the core ‘arms’ protected” by the amendment, as affirmed in District of Columbia v. Heller and McDonald v. Chicago. Under Bruen’s framework, which requires gun regulations to be consistent with the nation’s historical tradition of firearm regulation, the government bears the burden of justifying modern restrictions with historical analogues.
The opinion finds § 1715 lacking on multiple fronts. First, it burdens the core Second Amendment right to “keep and bear” arms for lawful purposes, including self-defense, hunting, and target shooting. Practical scenarios illustrate this burden: a traveler flying through restrictive jurisdictions like New York, driving with interruptions that void interstate transport protections under 18 U.S.C. § 926A, or using buses that refuse firearms as baggage often leave mailing as the only viable option for transporting a handgun. Yet private carriers’ bans and § 1715 foreclose this, stifling lawful travel with arms.
Second, the law impedes incidental rights necessary to exercise the Second Amendment, such as acquiring firearms (e.g., receiving one directly via mail from a family member or seller) or maintaining them (e.g., mailing to a gunsmith for repairs without involving a federal firearms licensee, thereby incurring additional costs and delays).
Most critically, the opinion deems § 1715’s purpose illegitimate: it aims to suppress traffic in concealable firearms, particularly handguns, which Congress in 1927 viewed as non-protected and primarily criminal tools.
This directly conflicts with post-Heller jurisprudence affirming handguns as quintessential self-defense weapons. No historical tradition broadly supports prohibiting the shipment of protected arms among law-abiding citizens. Colonial-era restrictions on selling arms to Native Americans or exporting during wartime are distinguishable, as they addressed hostile threats or common defense, not private interstate commerce. Gunpowder storage laws, often cited as analogues, concerned explosive hazards, not unloaded firearms.
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The opinion distinguishes rifles and shotguns (mailable under USPS rules) from handguns, noting the latter’s disfavor under USPS rules. It also clarifies limits: the ruling does not extend to non-protected items (e.g., privately manufactured firearms), require mailing ammunition (due to hazards with historical analogues), or mandate government parcel service altogether. But since the postal service operates one and allows handgun mailing for FFLs, it cannot discriminatorily ban private citizens.
Citing longstanding OLC precedent on executive authority to decline enforcing unconstitutional statutes, the opinion advises the DOJ to cease prosecutions under § 1715 for protected firearms and urges the postal service to revise Publication 52 accordingly. This follows principles such as presuming constitutionality where possible, considering the likelihood of Supreme Court agreement under Bruen, and avoiding undue chilling of rights pending litigation.
The opinion references an ongoing challenge, Shreve v. U.S. Postal Service (filed in July 2025 in Pennsylvania), in which plaintiffs seek to enjoin § 1715. That case remains pending, but the OLC deems the rights infringement too imminent to await resolution.
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This development could reshape firearm commerce and travel. Private citizens may soon mail handguns directly (subject to state laws and USPS safety rules), bypassing FFL transfers. It aligns with post-Bruen trends that expand the scope of the Second Amendment, which may influence other transportation restrictions. Proponents see it as restoring rights in a modern context in which private carriers’ policies have amplified an outdated ban.
As of January 2026, the law remains on the books, but the DOJ’s non-enforcement shifts practical reality. Congress could repeal or amend § 1715 (as proposed in bills like H.R. 3033), or courts may weigh in via Shreve. For now, this OLC opinion, binding within the executive, signals a bold executive reinterpretation of gun rights in the Bruen era.
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