18-to-20-Year-Olds Have a Right to Buy Handguns

So holds a Virginia state judge under the Virginia Constitution, concluding that the Virginia background check requirement for private sales therefore can't be applied to 18-to-20-year-olds.

|The Volokh Conspiracy |

Federal law bans professional gun dealers from selling handguns to 18-to-20-year-olds, but doesn't ban 18-to-20-year-olds from buying handguns from nonprofessional sellers (so-called "private sales"). That's one effect of Congress's decision not to mandate background checks for private sales. As a result, 18-to-20-year-olds are practically able to buy handguns, though they have fewer choices and have to go through more of a hassle.

Virginia law does mandate that all gun sales go through dealers, and thus be subject to a background check, which 18-to-20-year-olds can't pass; as a result, 18-to-20-year-olds in Virginia can no longer buy handguns. That, Judge F. Patrick Yeatts held today (in Elhert v. Settle), is likely unconstitutional: Though governments has have historically been able to restrict gun sales to minors, the age of majority is now 18 in Virginia (though it was largely 21 throughout the U.S. until about 1970), so 18-to-20-year-olds are fully protected by the Virginia Constitution's right to bear arms provision. Because of this, Judge Yeatts temporarily blocked the enforcement of the law against 18-to-20-year-olds (though I expect the state will appeal).

For more on this question generally, see this post by David Kopel and this post of mine.

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  1. Traditionally states and their respective lawmakers that held themselves out as pro-2A states have heavily regulated handguns. I would say pursuant Heller an 18 year old has a right to keep a handgun in their home but no right to buy one. So I believe if the Supreme Court ever takes up the 2A again they will find a right to open carry but it will be subject to liberal regulations like laws prohibiting guns in school zones and laws prohibiting concealed carry and laws making it illegal to posses a gun while selling narcotics.

    1. In other words, not actually a right in any substantive way.

      1. School zone legislation is federal law signed by HW Bush…and it was ruled unconstitutional not because of the 2A but because of the Commerce Clause!?! And Lopez was a dumb teenager and not an activist…so nobody is going to do a test case like in Heller because violating that law isn’t a slap on the wrist.

        1. It was ruled unconstitutional because they failed to invoke the commerce clause. They passed the law again with the commerce clause hook and it stands to this day

          1. As I relate below, part of the reason it still stands is that they’ve been very careful not to use it where they might create a good test case. It’s almost exclusively used to obtain sentence enhancements in people who are clearly criminals, and so far as I can tell, never in the case of otherwise law abiding people.

            It’s still hanging over the heads of the law abiding, like a sword of Damocles that will fall when the Democrats have an anti-gun Court. But it’s not surviving because the Court of today would obviously uphold it. It’s surviving because they’re making sure that Court never sees such a case.

    2. Okay, cool. Let’s keep it legal for liberals like yourself to spew your traitorous bullshit, but we’ll make it illegal for you to buy the iPhones that you use to propagate such bullshit.

      1. If you think school zone gun regulations violate the 2A then it is very easy to test the law. Many Con Law cases are what is referred to as “test cases”. So in a landmark action like Windsor the upside was tax evasion while there was literally no downside…such courage. 😉 Testing school zone gun regulations will have the downside of prison time and a criminal record…so good luck.

        1. No, it isn’t easy to test the law. It’s not easy, because test cases rely on prosecutors willing to allow test cases. The school zone gun law is openly violated on a daily basis by hundreds of thousands, or even millions of people, but prosecutors are being VERY careful about bringing charges, to avoid a test case.

          You can keep an unconstitutional law on the books for a very long time indeed, by refusing to prosecute people under it. See, for instance, the Logan act.

          1. All the prosecutors in the country are engaged in a massive conspiracy to prevent the law from being tested.

            Got it.

            1. Yup. In most places they’re probably not enforcing it just because it’s a stupid law, but they are all avoiding creating test cases.

              Take this case, for instance. Notice that the guy was already on the hook for a more serious charge, and they just used it to add to the sentence?

              A proper test case would be some law abiding guy who ONLY violated the act. You won’t find such prosecutions.

              1. I agree it’s a stupid law since it fails to account for local conditions. The greater the territorial jurisdiction of a legislature, the more-limited is its discretion in imposing uniform rules – and this applies in spades to the U.S. Congress.

                For example, for me to directly drive to the town which is the titular community of my residence and in which is located my local post office, I have to drive w/in 200 feet of the elementary/high school structure (not even mentioning its parking lot which lies between the road and the structure); for the road is immediately adjacent to the school property. If I wanted to avoid this situation but still drive along paved roads – something most prudent in any conditions but especially in Winter – the 16-mile round trip instead would be a 48-mile round trip. Economically and ecologically this would make no sense.

                Local conditions require local, not national, regulation.

                1. The law made perfect sense, once you understand that it’s goal wasn’t safe schools, but just to turn as much as possible of built up areas into “gun free zones”. It was written so that anybody with a gun permit could find a routine traffic stop turned into a felony unless they were very careful to take that 48 mile round trip.

                  A lot of the stupidity of gun laws goes away once you realize they’re really just aimed at making life hard on gun owners.

  2. If 18-20 year olds have a right to buy handguns, is that right good against stores such as Dick’s Sporting Goods that have a policy not to sell to 18-20 year olds?

    1. Read the post and try again.

    2. Actually this shows how dumb the conservative outrage against Dick’s was—18 year olds already couldn’t buy handguns but Republicans thought it was unfair Dick’s wouldn’t let them buy another type of gun.

      1. Uh, one was by law, as stupid and unconstitutional as it is, the other was a virtue signaling policy.

        If you think Dick’s should be prohibited from refusing to sell to a man whose idea of a “marital act” is sodomizing another man, then Dick’s should be prohibited from refusing to sell a rifle to an 18 year old.

        1. Justice Kavanaugh goes by “text and tradition”…and traditionally in states like Texas handguns have been subject to more regulations than long guns. So maybe you should have helped liberals tank Kavanaugh’s confirmation to the Supreme Court. 😉

      2. It’s still age discrimination.

        1. Washington State recently changed the law to 21 to purchase a semi-auto rifle. Could be an interesting test case.

      3. “18 year olds already couldn’t buy handguns ”

        But, under federal law, an 18 year old can legally by a long gun, such as a rifle or shot gun.

        The Dick’s Sporting Goods policy at issue was to no sell long guns to 18-20 year olds The store policy had squat to do with hand guns.

  3. Prof. Volokh,

    I’m not sure I agree with your description of the legality (under federal law) of private sales to those under 21 as an “effect of Congress’s decision not to mandate background checks for private sales.” Rather, it seems to me, it’s an effect of Congress’s decision in the relevant statute, 18 U.S.C. §  922(b)(1), to only place management age limit on sales by a “licensed importer, licensed manufacturer, licensed dealer, or licensed collector”. In other words, even if Congress required private sellers to perform a background check, that wouldn’t in and of itself criminalize a sale to someone under 21. Or is there something I’m missing?

    1. No one doubts that Congress can regulate gun sales in interstate commerce. And any transaction involving an FFL holder is considered to be in interstate commerce. There’s still a question, though about whether Congress can regulate gun transfers between non-FFL individuals who are bona fide residents of the same state. The Virginia law requiring background checks for “private” transfers by FFL holders might be seen as pushing those transactions into interstate commerce.

  4. One nice bit of good news.

  5. The Commonwealth is likely to loose any appeal, in part due to contemporaneously enacted, yet seemingly unrelated, statutes.

    I’ll offer a tangentially related observation regarding Virginia. In Jacobson v. Massachusetts, the state asserted the police power to compel vaccination at state expense. In Buck v. Bell, the state asserted police power to compel sterilization at state expense. Currently, there Virginia governor asserts police power to compel the purchase, at unspecified cost, and wearing, for an unspecified time, of masks, of unspecified design. There is a significant difference: compelling purchase is a tax beyond the emergency power of the Governor.

    1. Good point in the second paragraph.

      I don’t know of the exact language of the Virginia order, but Michigan I perceive is even worse. Now that businesses are apparently being forced to enforce the mandate and sanctioned if they do not, the cost of performing as a police force is now being imposed on them.

      Query, does a private business even have such a power – not even considering any purported power to compel them to be impressed w/ this new function, much less the consequences to them of an effort to act as a private police force?

      1. Private businesses can deny service. They must provide reasonable accommodations to people that can’t wear a mask due to a disability. It is possible none are reasonable. Businesses can only ask people not wearing masks if it is due to a disability. They can’t ask what the disability is or require proof.

        1. Admittedly Michigan’s Executive Order No. 2020-147, requiring “Any individual who leaves their home or place of residence must wear a face covering over their nose and mouth: a. When in any indoor public space;” provides for the following exception: “The requirement to wear a face covering does not apply to individuals who:

          b. Cannot medically tolerate a face covering;”

          However, it also provides that:
          “3. To protect workers, shoppers, and the community, no business that is open to the public may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering as required by this order.
          a. Businesses that are open to the public must post signs at entrance(s) instructing customers of their legal obligation to wear a face covering while inside. The Michigan Department of Labor and Economic Opportunity may, in its discretion, require such businesses to post signs developed and made available by the
          Department, or conforming to requirements established by the Department.
          b. A department or agency that learns that a licensee is in violation of this section will consider whether the public health, safety or welfare requires summary, temporary suspension of the business’s license to operate (including but not limited to a liquor license) under section 92 of the Administrative Procedures Act
          of 1969, 1969 PA 306, as amended, MCL 24.292(2).”

          The 3.b. sanction is so onerous that the hypothetical reasonable man would likely elect to violate 1.b. rather than 3. But then what happens if the customer insists that 1.b. applies? Here the State is shifting the responsibility for enforcement of the order from the public officials to private entities.

          I understand what you are saying as far as reliance by the establishment upon the assertion of the customer. But it certainly results in awkward, and potentially violent, confrontations – more so now that the previous duty to simply advise is presently coupled w/ a potential penalty.

          This of course doesn’t even begin to address the question of the presence or absence of authority therefor. Though I have not endeavored to research the licensing statutes, I doubt there is any “catch all” grounds for license suspension based upon the discretion of the Governor or respective Executive Agency; obviously there is no provision for this particular situation, as it never began to be envisioned by the Legislature. Even if there was some broad statutory discretion, does not Due Process require a sufficient specificity in the statute to justify quasi-criminal sanctions?

    2. The governor isn’t compelling anyone to purchase a mask by a rule prohibiting them from going outside without one. To hold otherwise would mean that Virginia’s indecent exposure statute compels individuals to purchase clothes.

  6. 18 year olds are not trustworthy enough to have a gun.

    Unless the government provides it.

    Then they can have machine guns, howitzers.. Even nuclear missiles.

  7. I disagree with the judge’s conclusion.

    First, the judge didn’t rule that 18 – 20 y/o’s have a right to buy guns and his decision specifically states, “Nothing in the text of the act expressly prohibits 18-20-year-olds from purchasing handguns subject to a background check. . . [T]he prohibition exists due to a problem with federal statues. . . . ” (pg 9).

    The Virginia law is not age discriminatory.

    The snag lies at the federal govt level, and that’s where the plaintiffs should have addressed their issue.

    I’m guessing this will be overturned in Virginia and the plaintiffs will have to take it up with the feds.

    1. I’m guessing this will be overturned in Virginia and the plaintiffs will have to take it up with the feds.

      The feds would then say “Can’t do it, Congress doesn’t authorize us to do it, it’s not in accordance with Federal Law, can’t make us do it.”. This is a problem with the state law, which is what created the conflict. The state cannot create a requirement which is impossible to meet.

    2. Depending how they rectify it to comply with the judge’s ruling it might become age discriminatory. If they decide that 18-20 year olds, and *only* 18-20 year olds, can purchase handguns outside of an FFL then that very likely is age discriminatory

      However I’m not aware of any VA or federal laws that outlaw age discrimination except in the matter of employment

  8. That judge’s opinion really is a Regent law degree talking. In fact, Judge Yeatts is the rare walking, talking Falwell-Robertson combo platter.

    1. I don’t think that’s entirely fair. I think a Judge who went to George Mason could easily have had the same result.

  9. I’m not sure it’s persuasive that the age of majority for many things is 18, therefore the Constitutional rule has to be 18. Virginia makes the age of majority 21 for both alcohol and cigarettes. Certainly, those don’t carry with them Constitutional rights (except, arguably, alcohol has some protection from Federal prohibition thanks to the 21st Amendment), but that’s a different question. If the rule is 18 (or 16 or 9, etc.) regardless of what the government sets as the age of majority, that might be more defensible. But I think the government reasonably has different age restrictions depending on the degree of responsibility needed for the thing.

    1. I don’t think the argument is that it has to be 18, so much as that it has to be the same for all civil rights, you can’t gain the rights of an adult by stages.

  10. This seems reasonable to me.

    At the very least, if a state wanted to ban 18-20 year olds from owning a gun, it would need to be through a thought through bill with the issue debated specifically. This ban seems to occur by accident from the way the background checks work.

    And if a state banned it directly, it would have to meet the Heller test, which is apparently either a form of intermediate scrutiny or an appeal to the historic rights of gun owners. Either way, I doubt a ban stands up.

  11. The maturity of the brain can have little to do with it – the brain matures in the mid-20s, well above the average age of military service. The shame is that we rely on youngsters to die for their country but deny them many rights the first three years of their adult lives.

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