Age Restrictions on Handgun Sales Are Unconstitutional, a Federal Judge Rules
U.S. District Judge Robert Payne concluded that 18-to-20-year-olds have the same Second Amendment rights as older adults.
Since 1968, the federal government has barred firearm dealers from selling handguns to anyone younger than 21. Last week, a federal judge in Virginia said that rule, which applies to federally licensed dealers but does not cover private sales, is unconstitutional because "prohibitions on the rights of 18-to-20-year-olds to purchase handguns are not supported by our Nation's history and tradition."
The four plaintiffs in this case, Fraser v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, are all adults younger than 21 who either tried to buy a handgun from a federally licensed dealer or said they would do so if it were allowed. They argued that the law and regulations standing in their way are inconsistent with the Second Amendment.
The government argued that 18-to-20-year-old Americans are not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment. When that amendment was ratified in 1791, the Justice Department noted, the age of majority was 21.
In granting the plaintiffs' motion for summary judgment, Robert E. Payne, a judge on the U.S. District Court for the Eastern District of Virginia, rejected that argument for several reasons. The Supreme Court has said "the people" protected by the Second Amendment, like "the people" protected by the First and Fourth Amendments, "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." The government therefore was arguing that 18-to-20-year-olds, who today can vote and are treated as adults in most other respects, are not part of "the political community."
The argument that the current meaning of that category is the same as the one that was accepted in the late 18th century, Payne notes in his 71-page opinion, has troubling implications. If the category is defined as people who are qualified to vote, for example, "the political community at the time of the Founding only included white, landed men."
Since then, "membership in the political community has grown to include numerous groups—women, minorities, and minors—that were denied inclusion at the time of the Founding," Payne writes. "If the Court were to accept the Government's position of limiting the definition of 'the people' to those understood to fall within it at the time of the Founding, the Second Amendment would exclude protections for vast swaths of the American population who [undoubtedly] are members of the political community today."
Payne also notes that limiting the Second Amendment to Americans 21 or older would be inconsistent with the way other constitutional rights are applied. "It is firmly established that the rights enshrined in the First, Fourth, Fifth, Eight[h], and Fourteenth Amendments vest before the age of 21," he writes. "Like these other rights, the Second Amendment's protections apply to 18-to-20-year-olds."
The government also argued that the federal age restriction on handgun sales is "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test established by the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen. But Payne thought that claim was undermined by the same militia laws that the government cited.
"The historical sources show that, at the time surrounding ratification of the Second Amendment, 16 or 18 was the age of majority for militia service throughout the nation," Payne writes. "In the decade following the ratification of the Second Amendment," he adds, "Congress and every state then in the Union passed a militia law requiring almost all able-bodied white men between the ages of 18 and 45 to serve in the militia."
Why is that relevant? "The fact that an individual could, or was required to, serve in the militia indicates that society believed that he lawfully could, and should, keep and bear arms," Payne notes. "Furthermore, because militiamen generally were responsible for providing their own firearms, it is logical to conclude that 18-to-20-year-olds were not prohibited from purchasing them."
The Justice Department was unable to rebut that inference. "The Government has not presented any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding, or Early Republic," Payne notes. "Nor has the Government offered evidence of such regulation between then and 1791 or in relevant proximity thereafter. For that reason alone, it has failed to meet the burden imposed on it by Bruen."
The government did cite two state laws enacted in 1856. Alabama prescribed a fine for "any one who shall sell or give or lend, to any male minor,…air guns or [a] pistol." In Tennessee, selling, giving, or loaning a "pistol, bowie-knife, dirk or Arkansas tooth-pick, or hunter's knife" to a minor was punishable by a fine or jail. The latter law made an exception for hunting. Three years later, Kentucky prohibited anyone other than a parent or guardian from supplying a minor with "any pistol…slung-shot, colt, cane gun, or other deadly weapon, which is carried concealed."
Although those laws did not define minor, Payne says, "it seems most probable that they applied to all individuals under the age of 21, because, at this time, the common law age of majority remained 21." Yet "by the eve of the Civil War, only three states had passed any form of restrictions on the ability of minors to purchase firearms and each of these was passed 65 years or more after the ratification of the Second Amendment," he writes. "This legislation therefore tells us nothing about the Founders' understanding of the Second Amendment. The other laws cited by the Government all date from Reconstruction and beyond. And, thus, they are not helpful in determining the situation at and around the Founding."
The U.S. Court of Appeals for the 11th Circuit, by contrast, found those historical precedents compelling when it upheld a Florida ban on gun sales to adults younger than 21 in March. "During the Reconstruction Era—when the people adopted the Fourteenth Amendment, thereby making the Second Amendment applicable to the States—many States responded to gun violence by 18-to-20-year-olds by prohibiting that age group from even possessing deadly weapons like pistols," it said.
Payne's ruling, however, jibes with the reasoning of several other decisions by federal judges and appeals courts. The 4th and 9th circuits have "held that 18-to-20-year-olds are part of 'the people' protected by the Second Amendment," Payne notes. Those cases were decided before Bruen. The 4th Circuit decision was vacated because the plaintiff had turned 21, rendering the case moot. The 9th Circuit decision was vacated and remanded for reconsideration by the district court in light of Bruen.
Two months after Bruen, Mark Pittman, a judge on the U.S. District Court for the Northern District of Texas, concluded that a state law prohibiting 18-to-20-year-olds from carrying handguns in public for self-defense violated the Second Amendment. The state initially challenged Pittman's decision but withdrew its appeal in December.
In March, Katherine Menendez, a judge on the U.S. District Court for the District of Minnesota, cited Pittman's decision while reaching the same conclusion regarding a similar age restriction in that state. She stayed her decision pending appeal.
Payne has yet to issue a final order that would bar enforcement of the rule he deemed unconstitutional, and his decision is bound to be appealed. Critics of his ruling complain that it "would significantly increase gun access for a population that research shows is more impulsive and responsible for a disproportionate number of fatal shootings," as The Washington Post put it. But as Payne notes, "the 'general societal problem' of teenage impetuousness and rashness far [preceded] the Founding." Since that is hardly a new phenomenon, he says, "the lack of analogous evidence of Founding-era regulations demonstrates that the statutes and regulations at issue are inconsistent with the Second Amendment."
Defenders of the age restriction argue that it helps prevent homicides by limiting access to handguns by people who are especially prone to commit such crimes. "Research shows us that 18- to 20-year-olds commit gun homicides at triple the rate of adults 21 years and older," Everytown Law's Janet Carter said in a press release. "The federal law prohibiting federally-licensed firearms dealers from selling handguns to individuals under the age of 21 is not just an essential tool for preventing gun violence, it is also entirely constitutional. The Court's ruling will undoubtedly put lives at risk. It must be reversed."
This sort of reasoning could be used to justify restricting the Second Amendment rights of other groups. People between the ages of 21 and 30, for example, are disproportionately likely to be arrested for murder, and so are African Americans. More to the point, Bruen made it clear that courts are not allowed to uphold gun control laws by balancing their purported benefits against the burdens they impose.
"While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here," the Court said. "The Second Amendment 'is the very product of an interest balancing by the people' and it 'surely elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense. It is this balance—struck by the traditions of the American people—that demands our unqualified deference."
