Michael R. Davis, founder of the Article III Project, argues that President Trump and Interior Secretary Doug Burgum should remove and replace members of the High Court of American Samoa to ensure the Second Amendment applies in the territory. Davis’s proposal follows a territorial ruling that treated the right to keep and bear arms as effectively inapplicable there.
What the court held
According to the article, the High Court of American Samoa concluded in Wiesner v. Fainu’ulelei that recognizing the Second Amendment would be “impracticable and anomalous,” citing the territory’s historical gun restrictions and its status as an unincorporated territory.
The power Davis points to
Davis cites 48 U.S.C. § 1661, which the article says vests the president with civil, military, and judicial control over American Samoa. A 1951 executive order by President Harry Truman reportedly delegated that authority to the Secretary of the Interior. The article further states that Article III, Section 3 of American Samoa’s territorial constitution gives the Interior Secretary the power to appoint justices to the High Court, who do not enjoy life tenure, and that the Secretary can remove them without cause and appoint replacements without Senate confirmation.
On that basis, Davis contends no lawsuit is needed for the administration to overrule the High Court’s approach to the Second Amendment. The article says federal courts have upheld this overruling authority in several cases, though the U.S. Supreme Court has not addressed the question directly. Davis also urges an executive order stating that the Second Amendment applies in American Samoa as it does in states and other territories.
How far could removals go?
The article describes the High Court as consisting of a Chief Justice and an Associate Justice appointed by the Interior Secretary, plus five Associate Judges appointed by the territorial governor. It notes the Interior Secretary’s removal power over justices, while stating that explicit authority to remove associate judges rests with the Chief Justice. The article argues that Burgum could replace the Chief Justice, who could then remove associate judges, but says doing so would likely trigger a complicated court fight. It further suggests the Secretary’s “plenary authority” over the territory could come into play and speculates that removing and replacing the governor might also be necessary to reset associate judge appointments.
An alternative route
The article suggests Congress could instead organize a territorial government for American Samoa, extend U.S. citizenship to residents, and remove doubt that the U.S. Constitution is controlling there.
Why Davis says it matters
To illustrate the stakes, Davis argues that if the High Court had declared the First Amendment meaningless, “justifiable outrage would follow, even though American Samoa is only a territory.” He maintains the Second Amendment deserves equal respect.
As of now, the article does not report any administration action on Davis’s proposal, and it notes that the Supreme Court has not squarely resolved the scope of federal override powers in this context.
