Handgun bans for persons under 21: A hidden problem in Everytown's 'universal background checks'

Should persons 18 to 20 years of age be allowed to possess handguns? Under federal law, and the laws of the large majority of states, the answer is "yes." The states with a minimum age of 21 for handgun possession are Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey and New York. The non-state of D.C. has the same limit, and New Mexico has age 19. There are pro/con constitutional and policy arguments about restrictions for 18-to-20-year-olds. Yet if such limits are going to be imposed, they ought to be debated by legislatures, with the ordinary opportunity for public comment. But recently, states such as Colorado and Washington have accidentally banned 18-to-20-year-olds from handguns without any expressed intent by anyone to do so. The ban is a consequence of the odd system of "universal background checks" promoted by Michael Bloomberg's "Everytown" gun control lobby.

The federal Gun Control Act of 1968 forbids a gun store from transferring a handgun to a person who is under 21, or a long gun to a person under 18. This means that in most states, a 20-year-old can buy or borrow a handgun privately, or receive one as a gift, but she cannot purchase a handgun from a retailer. The federal statute was upheld in National Rifle Association of America Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 700 F.3d 185 (5th Cir. 2012). You can criticize the law on policy or constitutional grounds, but at least Congress knew exactly what it was doing when it enacted the statute. In contrast, the Bloomberg laws never even mention handgun bans for 18-to-20-year-olds, yet they have the effect of a ban.

Under the Bloomberg laws, all private sales of firearms, and most temporary loans of firearms, may take place only at a gun store. The store must treat the private sale or loan exactly as if it were selling a firearm out of its own inventory. Because the only way to privately purchase or borrow a handgun is via a gun store intermediary, and because federal law forbids gun stores from transferring handguns to persons under 21, persons under 21 are thereby prohibited from acquiring handguns. The same is true for any gun for a person under 18. This is a major, sub silentio, expansion of gun prohibition, without public debate.

In the new Washington law (and its proposed federal counterpart), only a "bona fide gift" between family members is allowed. If family members want to loan guns to each other, they must have the loan processed by a gun store. If the family member is under 21 (for handguns) or under 18 (for all guns), the gun store cannot process the transfer, and thus the loan is impossible. So a mother may not loan her handgun to her 20-year-old daughter to take for protection on a camping trip. Nor to her 18-year-old son, who wants to go to a target range for the afternoon. A 17-year-old may have a hunting license in many states. But his father may not loan him a shotgun to use for hunting.

The exceptions in the Bloomberg laws are insufficient. In Washington, loans of firearms to minors are allowed if the person will be "under the direct supervision and control" of a person over 21. This presumes that persons of college age, some of whom have served in the military, lack the maturity to go hunting or camping with friends their own age, and not under the supervision of an older person.

The Nevada proposal, allowing intra-family loans and sales (and not just "bona fide" gifts), is better. But like all versions of the Bloomberg laws, it still makes it impossible for an 18-to-20-year-old to purchase a handgun or to borrow from someone other than a close family member.

Can a parent buy a handgun for a 20-year-old son or daughter? The Bloomberg model does allow parents to make "a bona fide gift" of a firearm to a child. But if the child gets involved in picking out the gun, this can be considered a "straw purchase" under federal law. United States v. Moore, 109 F.3d 1456 (9th Cir. 2007) (mother buying handgun for son); cf. Abramski v. United States, 134 S. Ct. 2259 (2014) (Law enforcement officer, using a discount available only to law enforcement officers, purchased a firearm to sell it to his uncle; both the officer and the uncle were lawful gun owners. The court held that Abramski was guilty of a felony because he was a straw purchaser.)

Any person who buys a gun from a retail store must fill out ATF Form 4473, which conspicuously states that the penalty for a false answer is five years in federal prison. Question 11.a. asks, "Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you."

Moreover, not all persons under 21 are dependents of a parent who would buy them a firearm. Some of them are legally emancipated, sometimes because their family was abusive. The Bloomberg system make it impossible for them to purchase a handgun. Although existing federal law would not allow an emancipated 20-year-old woman to purchase a handgun in a retail store, she would be allowed to purchase the handgun in a private sale—but for the Bloomberg laws.

Maybe you think that it's fine for a 20-year-old woman to purchase or borrow a handgun, but you want there to be a background check before she does so. The solution is simple: Do not require gun stores to be the mandatory middlemen for transactions they are federally prohibited to process. Massachusetts and Connecticut have background check systems for private sales which allow the parties to contact state law enforcement directly, by telephone or Internet, with no need for a trip to a gun store. This would be more sensible than Bloomberg's novel system that gun stores must be the chokepoint for all firearms sales or loans. This could also mitigate some of the damage that the Bloomberg system inflicts on self-defense and safety training, on safe storage and on sharing firearms informally for target shooting and gun cleaning, as detailed in previous articles.

As previously noted, my analysis of the Everytown laws is based on my forthcoming article "Background Checks for Firearms Sales and Loans: Law, History, and Policy," 53 Harvard Journal on Legislation. Also noted, I am counsel for 54 Colorado sheriffs, who argue that the Colorado version of these laws violates the Second Amendment, in a case pending before the 10th Circuit.