MIKE DAVIS: The American gun-free zone you didn't know about
In October 2024, the High Court of American Samoa, an unincorporated territory of the United States, issued a staggering ruling that received little media attention. The justices ruled that, since American Samoa is unincorporated, the Second Amendment right to keep and bear arms does not apply there. The ruling allowed a near-total gun ban to take effect. President Donald Trump and Secretary of the Interior Doug Burgum can and must reverse this immediately.
The issue of territories is obscure, so some background is helpful. The United States has 50 states and several territories, including Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands and American Samoa. The District of Columbia also is not a state; however, unlike the other territories, it receives three electoral votes for the presidency pursuant to the 23rd Amendment. None of these territories receives voting representation in Congress, though delegates from the territories can sit on congressional committees and, for instance, serve as managers for the House during a Senate impeachment trial.
These territories generally have courts, such as the U.S. District Court for the District of Puerto Rico and the U.S. District Court for the District of the Virgin Islands. Presidents nominate judges to these courts, and the Senate confirms them. As Article IV judges, those on these courts serve with a tenure of 10 years, and litigants may appeal their rulings through the relevant circuits. When territories violate constitutional rights, individual litigants or the Justice Department can sue them in federal court. President Trump's Justice Department did precisely that last year, accusing the U.S. Virgin Islands of enacting gun restrictions that run afoul of the Second Amendment.
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American Samoa differs judicially and in other ways from the other territories. No statute grants birthright citizenship to those born in American Samoa, unlike every other territory. American Samoa also has no federal court, unlike other territories. The High Court of American Samoa serves as the ultimate judicial authority in that territory. 48 U.S.C. § 1661 vests the president with civil, military and judicial control over American Samoa. A 1951 executive order by President Harry Truman delegated authority over the territory to the secretary of the interior. Article III, Section 3 of American Samoa's territorial constitution grants the secretary of the interior the power to appoint justices to the High Court. These justices serve no life tenure, unlike federal judges who serve during good behavior. The secretary can remove American Samoa justices without cause and appoint replacements without Senate confirmation.
President Trump and Secretary Burgum must act in light of the court's ruling against the Second Amendment. That amendment stands as a cornerstone of the Republic, and the Supreme Court reaffirmed its vitality recently in Wolford v. Lopez. Hawaii decided that it did not wish to comply with the Supreme Court's recent Second Amendment precedents. It implemented an absurdly restrictive concealed-carry regime under which gun owners could bring their weapons onto properties only where signs expressly permitted them. The Hawaii Supreme Court relied on, among other ridiculous rationales, the so-called "Aloha Spirit" to justify this infringement. Hawaii argued that, prior to statehood, no right to gun ownership existed. The Supreme Court, over a dissent from its three liberal justices, rejected that rationale. The Second Amendment applies just as much in Hawaii as it does in Chicago, New York and the District of Columbia.
No lawsuit is even necessary in American Samoa. The broad authority Congress granted the president under Section 1661 empowers President Trump and Secretary Burgum to overrule this egregious decision. Federal courts have upheld this overruling authority in several cases, though the Supreme Court has never addressed the question squarely. Beyond firing the justices and appointing new ones who respect the Constitution, President Trump should make clear in an executive order that the Second Amendment applies with equal force in American Samoa as it does in states and other territories.
If the High Court of American Samoa one day decreed that the First Amendment is inapplicable there — thus permitting the imprisonment of government critics — justifiable outrage would follow, even though American Samoa is only a territory. The First Amendment is foundational to the Republic. The Second Amendment is no different, no matter how hard anti-gun zealots work to obscure that truth. The current justices of the High Court of American Samoa have stripped it of any force whatsoever. The administration holds a simple, swift and lawful remedy, and they must use it.