DOJ Declares Federal Handgun Mailing Ban Unconstitutional

What follows is DOJ's Opinion, released 01/15/2026.  If you would like the original PDF file, head here.

(Slip Opinion)

Constitutionality of 18 U.S.C. § 1715

Section 1715 of title 18, U.S. Code, is unconstitutional as applied to constitutionally

protected firearms, including handguns, because it serves an illegitimate purpose and

is inconsistent with the Nation’s tradition of firearm regulation. See N.Y. State Rifle &

Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).

The Department of Justice may not, consistent with the Constitution, enforce section 1715

with respect to constitutionally protected firearms. The Postal Service should modify

its regulations to conform with this opinion.

January 15, 2026

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

In 1927, Congress declared “pistols, revolvers, and other firearms capa-

ble of being concealed on the person” to be nonmailable. Pub. L.

No. 69-583, § 1, 44 Stat. 1059, 1059 (1927) (codified as amended at

18 U.S.C. § 1715). With some exceptions not relevant here, those who

deposit any such firearm in, or cause any such firearm to be delivered by,

the mail face criminal sanction. See 18 U.S.C. § 1715. Although this

statute does not prohibit the shipment of concealable firearms by private

companies, major express services currently forbid all persons from ship-

ping firearms, except for some federal firearms licensees that have private

shipping agreements.1 Thus, unlicensed private citizens face a complete

ban on shipping concealable firearms, even though handguns are among

the core “arms” protected by the Second Amendment. See McDonald v.

Chicago, 561 U.S. 742, 768 (2010).

1 See FedEx, How to Ship Firearms, https://www.fedex.com/en-us/shipping/how-to-

ship-firearms.html [https://perma.cc/6V97-FZAW] (“The FedEx Service Guide prohibits

firearm shipments. However, customers holding a Federal Firearms License (FFL) may

work with their FedEx account executive to obtain approval to ship firearms with Fed-

Ex.”); UPS, How to Ship Firearms, https://www.ups.com/us/en/support/shipping-support/

shipping-special-care-regulated-items/prohibited-items/firearms [https://perma.cc/9JPG-

3ND3] (“Shipments containing Firearm Products are accepted for transportation only

from shippers who are federally licensed and have an approved UPS agreement for the

transportation of Firearm Products.”); DHL, Restricted Commodities (Jan. 1, 2021),

https://www.dhl.com/discover/en-us/ship-with-dhl/start-shipping/restricted-commodities

[https://perma.cc/S3YF-L9S7] (stating that firearms “are not acceptable for transport by

DHL under any circumstances”).

149 Op. O.L.C. __ (Jan. 15, 2026)

These prohibitions are jointly enforced by the Postal Service and federal

prosecutors. “Nonmailable firearms discovered in the mailstream must be

immediately reported to the United States Postal Inspection Service,” U.S.

Postal Serv. Publ’n 52 § 435 (2025) (“Publication 52”), which is tasked

with investigating the matter, 18 U.S.C. § 3061(a). See also 39 U.S.C.

§ 404(a)(6). Investigations are then turned over to the relevant United

States Attorney’s Office for prosecution. See, e.g., United States v. Perez,

No. 3:23-CR-00092, 2025 WL 744279, at *1 (D. Conn. Mar. 7, 2025);

United States v. Bernal-Salinas, No. 5:20-CR-00244, 2022 WL 4084412,

at *1 (E.D.N.C. Sept. 6, 2022).

You have asked whether 18 U.S.C. § 1715 infringes the Second

Amendment and, if so, whether the Department of Justice should cease

prosecuting violations of the statute. We conclude that the restriction

imposed by section 1715 violates the Second Amendment. Section 1715

makes it difficult to travel with arms for lawful purposes, including

self-defense, target shooting, and hunting. The statute also imposes signif-

icant barriers to shipping constitutionally protected firearms as articles of

commerce, which interferes with citizens’ incidental rights to acquire and

maintain arms. Indeed, the statute ultimately aims to suppress traffic in

constitutionally protected articles thus rendering the law per se unconsti-

tutional as to those articles, and we are aware of no historical analogues

that would satisfy the government’s burden of showing that this unprece-

dented restriction “is consistent with the Nation’s historical tradition of

firearm regulation.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.

2111, 2129–30 (2022). Because the application of section 1715 to consti-

tutionally protected firearms violates the Second Amendment, we con-

clude that the Department of Justice should cease prosecutions under the

statute with respect to protected firearms. See Presidential Authority to

Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994)

(“Presidential Authority”).

I.

Congress passed Public Law 69-583 as an early federal crime-control

measure, seeking to reduce handgun violence by suppressing the prolifera-

tion of mail-ordered firearms. During the early 20th century, many state

and local governments imposed strict restrictions on the ability of law-

abiding citizens to purchase handguns, and the availability of mail-order

2Constitutionality of 18 U.S.C. § 1715

firearms was perceived as undermining these state and local firearm regu-

lations. See Lee Kennett & James LaVerne Anderson, The Gun in Ameri-

ca: The Origins of a National Dilemma 193–201 (1975); David T. Hardy,

The Firearm Owners’ Protection Act: A Historical and Legal Perspective,

17 Cumb. L. Rev. 585, 589–91 (1987); 69 Cong. Rec. 9693 (1926)

(statements of Rep. Christian Ramseyer and Rep. John Miller). Congress

responded with Public Law 69-583, which declared nonmailable “pistols,

revolvers, and other firearms capable of being concealed on the person,”

Pub. L. No. 69-583, § 1, 44 Stat. at 1059, and it criminalized depositing

such weapons in, or causing them to be delivered by, the mail, even if

they are unloaded, id. § 1, 44 Stat. at 1060. The law exempted such depos-

its “for use in connection with” certain government officials’ duties as

well as for conveyance among firearm manufacturers and bona fide deal-

ers in customary trade shipments. Id. § 1, 44 Stat. at 1059–60. Violators

faced a fine “not exceeding $1,000,” imprisonment for “not more than two

years, or both.” Id. § 1, 44 Stat. at 1060. Public Law 69-583’s restriction

remains on the books today, codified at 18 U.S.C. § 1715.

The Postal Service implements section 1715 via Publication 52. See

Publication 52 § 432.2. Publication 52 categorizes “[p]istols, revolvers,

and other firearms capable of being concealed on a person” as “handguns”

and defines that term to mean “firearm[s] with a short stock designed to be

held and fired by the use of a single hand” or “a combination of parts from

which a handgun can be assembled.” Id. § 431.2(a). It also defines “fire-

arms capable of being concealed on a person” to include short-barreled

shotguns and rifles. Id. § 431.2(b). The Publication then repeats section

1715’s dictates, stating that “[h]andguns, and other firearms capable of

being concealed on the person,” as defined by section 431.2 of the Publi-

cation, “are nonmailable.” Id. § 432.2. It details government officials

authorized to ship and receive such weapons. Id. § 432.21. And it notes

that such weapons “may be mailed between licensed firearm manufactur-

ers, dealers, and importers in customary trade shipments, or for repairing

or replacing parts.” Id. § 432.23.

II.

“[T]he postal power, like all [of Congress’s] other powers, is subject to

the limitations of the Bill of Rights.” United States ex rel. Milwaukee Soc.

Democratic Publ’g Co. v. Burleson, 255 U.S. 407, 430 (1921) (Brandeis,

349 Op. O.L.C. __ (Jan. 15, 2026)

J., dissenting). With respect to printed material, for example, “[i]t is

axiomatic that restrictions upon the mail system implicate the First

Amendment.” Currier v. Potter, 379 F.3d 716, 727 (9th Cir. 2004); see

also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 80 (1983)

(Rehnquist, J., concurring in judgment) (“A prohibition on the use of the

mails is a significant restriction of First Amendment rights.”); Lamont v.

Postmaster Gen., 381 U.S. 301, 305 (1965) (holding postal regulation

unconstitutional as a violation of the First Amendment). Likewise, the

strictures of the Fourth Amendment apply to the Postal Service. As the

Supreme Court has explained, the “constitutional guaranty of the right of

the people to be secure in their papers against unreasonable searches and

seizures extends to their papers, thus closed against inspection, wherever

they may be.” Ex parte Jackson, 96 U.S. 727, 733 (1878).

The Second Amendment states, “A well regulated Militia, being neces-

sary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court

has held that this amendment protects “an individual right to keep and

bear arms.” Bruen, 142 S. Ct. at 2127 (quoting Heller, 554 U.S. at 595).

This right extends to “the possession and use of weapons that are ‘in

common use’” for lawful purposes, id. at 2128 (quoting Heller, 554 U.S.

at 627), which includes “handguns,” Heller, 554 U.S. at 629. The Court

was not writing on a blank slate, but drawing on an older, judicially

recognized right to keep and bear arms that “involves, necessarily, the

right to use such arms for all the ordinary purposes, and in all the ordinary

modes usual in the country, and to which arms are adapted.” Andrews v.

State, 50 Tenn. (3 Heisk.) 165, 178 (1871); see Heller, 554 U.S. at 592

(“[I]t has always been widely understood that the Second Amendment,

like the First and Fourth Amendments, codified a pre-existing right.”

(emphasis in original)). These uses include, for example, target shooting,

firearm training, and hunting. Andrews, 50 Tenn. at 179; see also Thomas

M. Cooley, The General Principles of Constitutional Law in the United

States of America 271 (1880) (explaining that “to bear arms implies

something more than the mere keeping it; it implies the learning to handle

and use them . . . ; in other words, it implies the right to meet for volun-

tary discipline in arms”); Heller, 554 U.S. at 599. It also includes the right

to carry arms publicly for individual or community defense. Bruen, 142

4Constitutionality of 18 U.S.C. § 1715

S. Ct. at 2134; Heller, 554 U.S. at 599 (noting that the Second Amend-

ment’s prefatory clause sought “to prevent elimination of the militia”).

A.

Section 1715 substantially burdens the right to bear arms protected by

the Second Amendment. An individual cannot mail himself a handgun for

core constitutionally protected activity, such as self-defense, target shoot-

ing, or hunting. As the examples below illustrate, traveling with a firearm

can be difficult, if not impossible, rendering the mail the most effective

way to transport an individual’s firearm to his destination:

(1) A Californian vacationing in Vermont flies into New York. The

transportation of his handgun through the New York airport, even if

that handgun is properly stowed in his luggage, would trigger an ar-

rest for violating New York’s law against possession of an unli-

censed handgun. See Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Port

Auth. of N.Y. & N.J., 730 F.3d 252, 257 (3d Cir. 2013).2

(2) A person driving from Wisconsin to Michigan stops in Chicago

for two days. The break in travel would cause him to lose the protec-

tion of 18 U.S.C. § 926A, which otherwise protects the interstate

transportation of firearms.

(3) A person takes a bus from Washington, D.C., to Philadelphia,

Pennsylvania. The bus would generally refuse to accept his firearm

as baggage.3

2 The Department of Justice has previously maintained that such transportation is

protected by 18 U.S.C. § 926A. See Letter for Rep. Don Young from William E.

Moschella, Assistant Attorney General, Office of Legislative Affairs (Feb. 18, 2025),

https://cdn.ymaws.com/www.anjrpc.org/resource/resmgr/docs/travelwithguns.pdf

[https://perma.cc/7LU8-DBP5]. Nevertheless, it is common in certain states to arrest

travelers. See, e.g., Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 132 (2d Cir.

2010) (discussing case in which travelers flying through New York, in compliance with

federal law, attempted to transport unloaded firearms in checked baggage yet were

“arrested by officers seeking to enforce New York gun laws criminalizing the possession

of a firearm without a New York firearm license”).

3 See, e.g., Greyhound Lines & FlixBus, Permitted and Prohibited Items on Board

Coaches at 2 (2023), https://cdn-cf.cms.flixbus.com/drupal-assets/2023-01/Permitted%20

and%20Prohibited%20Items%20List%20 (DEC% 202022) %20- %20Co-branded_GLI

549 Op. O.L.C. __ (Jan. 15, 2026)

In these cases (and many others like them), a person has no ability to

travel with a firearm, leaving shipment of the handgun to a destination as

the only viable method of transportation. But the person cannot use a

common or contract carrier to ship himself the handgun because, current-

ly, the large common carriers that deliver parcels refuse to ship firearms

for private citizens. And section 1715 forbids mailing the handgun. The

Postal Service’s ban on mailing handguns thus stifles the legitimate trans-

portation and carriage of handguns for self-defense or any other lawful

purpose.

Similarly, section 1715 imposes gratuitous burdens on the right to ac-

quire and maintain firearms. Constitutional rights “implicitly protect those

closely related acts necessary to their exercise.” Luis v. United States, 578

U.S. 5, 26 (2016) (Thomas, J., concurring in judgment); see also id.

at 26–28 (providing examples); Andrews, 50 Tenn. at 178–79 (same

principles applied to the right to bear arms). Here, the Second Amend-

ment prohibits the government from infringing upon a law-abiding citi-

zen’s right to “keep and bear” arms in common use for lawful purposes.

U.S. Const. amend. II; Bruen, 142 S. Ct. at 2125–26. This provision,

however, would be meaningless if the government could prevent citizens

from ever receiving such arms. Indeed, the receipt of a weapon is almost

always a necessary predicate to both keeping and bearing a weapon. Yet

section 1715 precludes an ordinary person from ever receiving a firearm

directly in the mail, even if the seller or donor lives in the same state as

the recipient. Instead, the seller or donor must deliver the firearm to a

federal firearms license (“FFL”) dealer. The donor or recipient must pay

the dealer’s fee in addition to the shipping cost. And that dealer will then

ship the firearm to another FFL dealer from whom the ultimate recipient

will retrieve the weapon. The Second Amendment likewise protects the

right to maintain firearms in a working condition. Yet an ordinary person

who seeks repairs cannot simply mail the firearm to a gunsmith or the

manufacturer. The owner must instead deliver the weapon to an FFL

dealer, who will send the firearm on the owner’s behalf. And the person

who conducts the repairs cannot return the weapon directly to the owner;

%20&%20FBI.pdf [https://perma.cc/MK97-JS75]; Megabus, Terms and Conditions

(Nov. 7, 2023), https://us.megabus.com/terms?tID=65f4975466366 [https://perma.cc/

B87S-GFND]; Trailways, Policy of Firearms, https://trailways.com/carriage-of-firearms-

hazardous-materials/ [https://perma.cc/P52R-Z3N3].

6Constitutionality of 18 U.S.C. § 1715

he must send the weapon back to the FFL dealer for the owner’s pickup.

Section 1715 consequently increases the time and expense involved in

firearm upkeep.

Section 1715 thus operates as a substantial burden on citizens’ Second

Amendment rights.

B.

“Like most rights,” however, “the right secured by the Second

Amendment is not unlimited.” Heller, 554 U.S. at 626. If the text of the

Second Amendment covers the conduct, then the government must

demonstrate that the infringing regulation “is consistent with the Nation’s

historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2129–30.

In conducting this analysis, one “must ascertain whether the new law is

‘relevantly similar’ to laws that our tradition is understood to permit.”

United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (quoting Bruen,

142 S. Ct. at 2111). “Why and how the regulation burdens the right are

central to this inquiry.” Id. The challenged law and the historical ana-

logues must address a comparable problem and impose a comparable

burden on the regulated conduct. See id.; see also Bruen, 142 S. Ct. at

2131–33. After examining both the traditional scope of the government’s

power to regulate rights and potential historical analogues, we find that

section 1715 serves an illegitimate purpose and is inconsistent with the

Nation’s tradition of firearm regulation.

First, laws infringe Second Amendment rights if they serve the illegiti-

mate purpose of suppressing the right, regulating the right more broadly

than needed for a legitimate purpose, or effectively destroying the right.

See Rahimi, 144 S. Ct. at 1898 (observing that a law must regulate for a

“permissible reason”); Bruen, 142 S. Ct. at 2138 n.9 (remarking that a law

may not be “put toward abusive ends”); Daniel D. Slate, Infringed,

3 J. Am. Const. Hist. 381, 386, 391, 441 (2025). Here, section 1715 serves

an illegitimate purpose. The text of the law aims to suppress traffic in

constitutionally protected articles: “Pistols, revolvers, and other firearms

capable of being concealed on the person are nonmailable and shall not be

deposited in or carried by the mails or delivered by any officer or employ-

ee of the Postal Service.” 18 U.S.C. § 1715. On its face, then, the statute

evinces an attempt to reduce the proliferation of concealable firearms. The

law’s design singles out for disfavored treatment pistols and revolvers,

749 Op. O.L.C. __ (Jan. 15, 2026)

“the most popular weapon chosen by Americans for self-defense,” Heller,

554 U.S. at 629. Compare Publication 52 § 432.2 (declaring handguns

“nonmailable”), with id. § 432.3 (declaring rifles and shotguns “maila-

ble”). And it operates as a practical bar on private citizens’ ability to

transport and receive in the mail constitutionally protected weapons. Such

a purpose—to frustrate protected arms’ transportability, thereby making it

more difficult for citizens to obtain such weapons—constitutes a per se

infringement upon the Second Amendment. See Rahimi, 144 S. Ct. at

1898; Bruen, 142 S. Ct. at 2138 n.9; Slate, supra, at 386, 391, 441.

“[L]egislative history is not the law,” Epic Sys. Corp. v. Lewis, 138

S. Ct. 1612, 1631 (2018), but to the extent it is considered at all, it pro-

vides further support that Congress designed section 1715 to advance an

illegitimate purpose. Congress generally believed handguns were neither

arms protected by the Second Amendment, nor particularly useful for

legitimate purposes. See S. Rep. No. 69-1107, at 2 (1926) (“No one has a

constitutional right to carry a concealed weapon like a pistol.”); Carrying

of Pistols, Revolvers, and Other Firearms Capable of Being Concealed on

the Person in the Mails: Hearings on H.R. 4502 Before a Subcomm. of the

H. Comm. on the Post Off. & Post Rds., 69th Cong. 26 (1926) (“Hearings

on H.R. 4502”) (statement of William McAdoo, Chief City Magistrate,

New York) (“There is no attempt to invade the constitutional right of a

citizen to carry arms. Anybody can go over the whole United States with a

rifle on one shoulder and a shotgun on the other without conflicting with

any legislation enacted or proposed. We are dealing with concealed weap-

ons. . . . Pistols and revolvers are of no use as a weapon of defense in the

hands of law-abiding people.”).4 Consequently, Congress had no qualms

4 See also 67 Cong. Rec. 9693 (1926) (statement of Rep. Harry Ramseyer) (“It makes

all firearms that are capable of being concealed on the person nonmailable. Complaints

have come to us from cities where they have strict regulation in regard to the sale of

firearms that the lawless element, the thugs and holdup men, are able to send to mail-

order houses for these pistols, and in that way the local laws and regulations, whether

State or municipal, are completely nullified.”); id. at 9693–94 (statements of Rep. John

Miller) (“By wholesome municipal regulation this character of our citizenry, the thug and

the scoundrel, can not buy pistols locally, because the regulations and the discretion

vested in the municipal authorities will not grant these men the right to purchase a pistol

locally. The thug and the scoundrel then resort to the mail-order houses throughout the

country, and by sending a sufficient amount to the mail-order houses receive a pistol

through the mail, delivered to him at his door, his room, or wherever he may direct. . . .

8Constitutionality of 18 U.S.C. § 1715

about suppressing traffic in such articles. But Heller and its progeny have

thoroughly repudiated the claim that the Second Amendment does not

protect handguns.

Second, the law is inconsistent with this Nation’s history and tradition

of firearm regulation. See Bruen, 142 S. Ct. at 2129–30. When reviewing

colonial and early American state regulations, we sought to “ascertain

whether [section 1715] is ‘relevantly similar’ to laws that our tradition is

understood to permit, ‘apply[ing] faithfully the balance struck by the

founding generation to modern circumstances.’” Rahimi, 144 S. Ct. at

1892 (quoting Bruen, 142 S. Ct. at 2133 n.7). We did not find any rele-

vant historical tradition of generally prohibiting the shipment of constitu-

tionally protected arms. The three closest analogues we have found are far

afield and readily distinguishable.

The first enactment originated in what would later become New York.

There, the Director and Council of New Netherland passed an ordinance

in 1639 prohibiting the sale of “Guns, Powder and Lead” to Native Amer-

icans. Laws and Ordinances of New Netherland, 1638–1674 at 18–19

(E.B. O’Callaghan ed., 1868). Six years later, in 1645, the Director and

Council found that, notwithstanding the 1639 prohibition, individuals

continued to sell arms to the natives. Id. at 47. The body consequently

passed a supplemental ordinance forbidding the transportation of “any

munitions of War” from New Netherland “without express permission.”

Id.5

The second enactment, passed by the Virginia Grand Assembly in

1675, similarly prohibited conveyance of “powder, shott or armes” to

But it is a common form now of the distribution of pistols throughout the country through

the mails, due to the stringent regulations in the great majority of our cities regarding the

local sale of firearms.”); Hearings on H.R. 4502 at 24 (stating that “the demand for this

legislation came largely from the large cities . . . , where they have strict regulations as to

the issuing of permits to those who may want to buy a pistol”).

5 During this same period, the New England Confederation likewise prohibited sales of

arms to Native Americans. See The Public Records of the Colony of Connecticut 113–14,

145–46 (J. Hammond Trumbull ed., 1850) (1665). To effectuate this policy, the Confed-

eration prohibited the “the sale of arms or ammunition to any person out of the confeder-

ate jurisdictions” without a license. Id. at 145–46 n.*. This statute is inapposite, as it did

not regulate citizens’ transportation of arms either within or outside the Confederation.

See id. And even if it could be regarded as regulating transportation, it at most represents

a firearms export regulation, which is not the issue here.

949 Op. O.L.C. __ (Jan. 15, 2026)

Native Americans. 2 The Statutes at Large: Being a Collection of All the

Laws of Virginia, from the First Session of the Legislature, in the Year

1619 at 336 (William Waller Hening ed., 1823). To effectuate this provi-

sion, the Assembly effectively barred individuals from transporting more

than “one gunn and tenn charges of powder and shott” more than three

miles beyond “the English plantations.” Id. at 337.

The third enactment, passed by the Maryland Assembly of Freemen in

1776, prohibited the transportation of “muskets or rifles . . . or any gun

barrels, gun locks, or bayonets” out of Maryland “without the leave of the

[Maryland Council of Safety] for the time being.” Proceedings of the

Conventions of the Province of Maryland, Held at the City of Annapolis, in

1774, 1775, & 1776 at 146–47 (James Lucas & E.K. Deaver eds., 1836).

Take these possible analogues in reverse order. The Maryland resolu-

tion, enacted closest to the Second Amendment’s ratification, is easily

distinguishable. Though the resolution proscribed removing weapons

from Maryland, it did so to ensure the common defense of the province in

the early days of the American Revolution—not to supplement laws

prohibiting certain individuals from possessing weapons. See id. at 146–

47; see also David B. Kopel, How the British Gun Control Program

Precipitated the American Revolution, 6 Charleston L. Rev. 283, 297–301

(2012) (discussing British arms embargo and colonial response); cf. The

Colonial Laws of Massachusetts 125–26 (William H. Whitmore ed., 1887)

(1672) (prohibiting exportation of gunpowder to provide for the colony’s

“necessary use and defence”).

The “how” and “why” of the Virginia and New Netherland enactments

are also inapposite. Those Acts aimed to prevent the arming of the Indi-

ans. At the time, the Indians were frequently at war with the colonists, and

they were not recognized to be part of the colonists’ political communi-

ties. See Kennett & Anderson, supra, at 51–53. Section 1715, in contrast,

does not purport to be a wartime measure designed to prevent Americans

from shipping firearms to members of hostile powers.

Nor do we think that section 1715 could be analogized to common co-

lonial restrictions on the storage and transportation of gunpowder. Such

restrictions concerned large quantities of gunpowder that, because of its

explosive character, could injure persons or property if not properly

transported and stored. See Heller, 554 at 632 (describing gunpowder

regulations as “fire-safety laws”). Such analogues will not support a ban

10Constitutionality of 18 U.S.C. § 1715

on transporting unloaded firearms, the conveyance of which does not

present an inherent risk to life and property.

To the extent post-ratification history is relevant, but see Bruen, 142

S. Ct. at 2136 (cautioning against giving such “history more weight than it

can rightly bear”), it, too, fails to support section 1715. As outlined in

Bruen, states and territories began implementing stricter gun regulations

in the 19th century. See id. at 2145–54 (surveying regulations). This

period also saw the flourishing of private express delivery services such

as Wells Fargo & Company, which transported firearms, as well as the

rise of mail-order houses such as Montgomery Ward and Sears Roebuck

& Company, both of which sold firearms. See W. Turrentine Jackson, A

New Look at Wells Fargo, Stage-coaches and the Pony Express, 45 Cal.

Hist. Soc’y Q. 291 (1966); Rita L. Moroney, History of the U.S. Postal

Service, 1775–1984 at 6 (noting that, by 1897, Sears “boasted it was

selling . . . a revolver every two minutes”). Yet we have found only one

analogous 19th century law, passed by Tennessee in 1879, that criminal-

ized selling, offering to sell, or bringing “into the State for the purpose of

selling, giving away, or otherwise disposing of belt or pocket pistols, or

revolvers, or any other kind of pistols, except army or navy pistol.” 1879

Tenn. Pub. Acts 96, § 1; see also 1901 S.C. Acts 748, ch. 435, § 1 (pro-

hibiting the “transport for sale or use into this State” of “any pistol less

than 20 inches long and 3 pounds in weight”). That law was premised on

the idea that only handguns of the kind used by the military were constitu-

tionally protected. See Bruen, 142 S. Ct. at 2147 & n.21; Andrews,

50 Tenn. at 186–87; State v. Wilburn, 66 Tenn. 57, 60 (1872). Although

Tennessee had a narrower understanding of which handguns qualified for

constitutional protection, even this strict regulation is consistent with the

principle that we affirm here: The legislature cannot prohibit the shipment

of constitutionally protected arms.

III.

Although we believe that section 1715 is unconstitutional, we note

some limits on our opinion.

We do not conclude that the Department of Justice may never enforce

section 1715. We conclude only that section 1715 is unconstitutional as

applied to constitutionally protected arms. Section 1715, however, ex-

tends beyond such constitutionally protected arms to any firearms capable

1149 Op. O.L.C. __ (Jan. 15, 2026)

of being concealed upon the person. See 18 U.S.C. § 1715. Our conclu-

sion thus does not extend to arms that lack constitutional protection, such

as undetectable firearms, see 18 U.S.C. § 922(p)(1); or concealable gadg-

et-type guns designed primarily for assassination, like pen guns, see

26 U.S.C. § 5845(e). The Postal Service and the Department of Justice

may therefore continue to enforce the shipping restrictions found in sec-

tion 1715 against firearms that lack constitutional protection.

We similarly do not conclude that the Second Amendment creates a

positive entitlement to have the government deliver firearms on behalf of

customers. Although the Constitution authorizes a postal service,

U.S. Const. art. I, § 8, cl. 7, nothing in the Constitution affirmatively

requires the government to maintain a postal service or to carry parcels.

But Congress, having chosen to maintain a postal service that carries

parcels (including handguns for some customers), cannot then discrimi-

nate against the carriage of constitutionally protected arms on behalf of

private citizens. Cf. Burleson, 255 U.S. at 437 (Holmes, J., dissenting)

(“The United States may give up the post office when it sees fit, but while

it carries it on,” Congress must respect the First Amendment.). Though

the Postal Service is not a common carrier, see 1 Robert Hutchinson,

A Treatise on the Law of Carriers 90 (J. Scott Matthews & William F.

Dickinson eds., 3d ed. 1906), we think the law of common carriers may

provide a helpful analogy here. “A common or public carrier is one who

undertakes as a business, for hire or reward, to carry from one place to

another the goods of all persons who may apply for such carriage, provid-

ed the goods be of the kind which he professes to carry . . . .” Id. at 41.

Common carriers are not required to carry every type of good. Id. at 86–

87. But once they hold themselves out to carry certain kinds of goods,

they owe an obligation to carry such goods for those who offer to pay. Id.

at 43. The Postal Service routinely transports handguns between author-

ized shippers and recipients. Section 1715 simply singles out for unfavor-

able treatment the mailing of handguns by ordinary citizens. We do not

think the Second Amendment allows Congress to use its postal power for

the purpose of suppressing traffic in constitutionally protected arms.

We also do not conclude that the Postal Service is required to carry

ammunition or gunpowder. See 18 U.S.C. § 1716(a) (prohibiting the

mailing of inherently dangerous articles). Even though ammunition is

constitutionally protected, see Miller, 307 U.S. at 179–80; Andrews,

12Constitutionality of 18 U.S.C. § 1715

50 Tenn. at 178, a mailing restriction on all explosives serves legitimate

postal needs to prevent injury to postal employees and property. Such

facially neutral restrictions do not discriminate against constitutionally

protected items. Just like the Constitution does not require the Postal

Service to be in the parcel business, neither does it require the Postal

Service to be a hazardous shipper. Cf. The Nitro-Glycerine Case, 82 U.S.

(15 Wall.) 524, 536 (1873) (recognizing the right of common carriers to

refuse packages “when there is good ground for believing that they

contain anything of a dangerous character”). And with respect to the

Second Amendment, such restrictions have ample historical analogues in

early American restrictions on the storage and transportation of gunpow-

der, which could injure persons or property if not properly stored or

carefully handled.

The limitations we outline here do not disturb our primary conclusion

that section 1715 is unconstitutional as applied to handguns. Handguns

fall within the core of the “arms” protected by the Second Amendment.

See McDonald, 561 U.S. at 768. And unloaded firearms are not inherent-

ly dangerous in the same sense as explosives or poisons, which is why

the Postal Service already accepts rifles and shotguns for mailing, to-

gether with handguns from certain qualified shippers. Consequently, so

long as Congress chooses to run a parcel service, the Second Amendment

precludes it from refusing to ship constitutionally protected firearms to

and from law-abiding citizens, even if they are not licensed manufactur-

ers or dealers.

IV.

Having determined that section 1715 is unconstitutional in part, we turn

to whether you, acting in consultation with the President and pursuant to

his delegated authority, may decline to enforce the statute.

The President may decline to enforce enactments that are unconstitu-

tional. Presidential Authority, 18 Op. O.L.C. at 199; see also Issues

Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 46–49

(1990); Recommendation that the Department of Justice Not Defend the

Constitutionality of Certain Provisions of the Bankruptcy Amendments

and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183, 198 (1984); The

Attorney General’s Duty to Defend and Enforce Constitutionally Objec-

tionable Legislation, 4A Op. O.L.C. 55, 59 (1980). Several factors inform

1349 Op. O.L.C. __ (Jan. 15, 2026)

the Executive’s decision to decline enforcement. First, the Executive

“should presume that enactments are constitutional” and, where possible,

“construe provisions to avoid constitutional problems.” Presidential

Authority, 18 Op. O.L.C. at 200. Second, the Executive should decline to

enforce a statute only if “it is probable that the [Supreme] Court would

agree” that the statute violates the Constitution. Id. Third, the Executive

should carefully weigh the effect of enforcement on individuals’ constitu-

tional rights as well as the “likelihood that compliance or non-compliance

will permit judicial resolution of the issue.” Id. at 200–01. We consider

each factor here.

As to the first factor, our analysis above demonstrates section 1715

evinces a constitutionally impermissible purpose and does not accord with

the Nation’s history and tradition of firearm regulation. And while we

presume the statute’s constitutionality, it is relevant that at the time Con-

gress passed section 1715, very little discussion occurred regarding its

constitutionality, see Kennett & Anderson, supra, at 195, and Congress

was operating under a drastically different interpretive framework, com-

pare, e.g., S. Rep. No. 69-1107, at 2; and Hearings on H.R. 4502 at 26

with Bruen, 142 S. Ct. at 2125–57. Moreover, the statute cannot be con-

strued to avoid restricting constitutionally protected conduct. While

section 1715’s text may cover conduct not protected by the Second

Amendment—for example, the shipment and receipt of “weapons not

typically possessed by law-abiding citizens for lawful purposes,” Heller,

554 U.S. at 625—there is no plausible way to read the text as allowing

law-abiding citizens to transport and directly receive constitutionally

protected weapons in the mail where permitted by state and federal law.

As to the second factor, “it is probable that the [Supreme] Court would

agree” section 1715 violates the Second Amendment. See Presidential

Authority, 18 Op. O.L.C. at 200. In finding section 1715 unconstitutional,

we applied the analysis mandated by the Supreme Court in Bruen and

other recent Second Amendment precedents, and we concluded that, based

on the historical evidence, section 1715 is inconsistent with “the principles

that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at 1898.

As to the third factor, so long as the Department continues to enforce

section 1715, law-abiding citizens will choose not to send constitutionally

protected firearms through the mail. They will instead opt to pursue

burdensome workarounds or even forgo the transportation, receipt, and

14Constitutionality of 18 U.S.C. § 1715

maintenance of their personal firearms. See supra Part II.A. And this, in

turn, unduly chills individuals’ exercise of their constitutional rights.

We are aware of one pre-enforcement challenge, which seeks an injunc-

tion against section 1715’s enforcement and a declaratory judgment stating

that section 1715 violates the Second Amendment. See Complaint for

Declaratory and Injunctive Relief, Shreve v. U.S. Postal Serv., No. 3:25-

cv-214 (W.D. Pa. July 14, 2025). But the scope of that case is uncertain

and, in the meantime, we have determined that section 1715 is unconstitu-

tional as applied to constitutionally protected arms. The People’s constitu-

tional rights should not be abridged while awaiting the outcome of that

case.

Counseled by these factors, we believe that declining to enforce section

1715 to the extent described herein would be consistent with the Execu-

tive’s duties under the Constitution.

V.

Section 1715 regulates the ability to transport, receive, and maintain

constitutionally protected firearms, which burdens the right protected by

the Second Amendment. But section 1715’s purpose and burden find no

analogue in this Nation’s history and tradition of firearm regulation. See

Bruen, 142 S. Ct. at 2129–30. We therefore conclude that the statute

violates the Second Amendment insofar as it burdens the rights of law-

abiding citizens to ship and receive arms in common use for lawful pur-

poses. Accordingly, the Executive Branch may not, consistent with the

Constitution, enforce section 1715 with respect to constitutionally pro-

tected firearms, and the Postal Service should modify its regulations to

conform with the scope of the Second Amendment as described in this

opinion.

T. ELLIOT GAISER

Assistant Attorney General

Office of Legal Counsel