The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's (very long) majority opinion in Hirschfeld v. ATF, written by Judge Richardson and joined by Judge Agee, with Judge Wynn dissenting:
When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation's most cherished constitutional rights vest no later than 18. And the Second Amendment's right to keep and bear arms is no different.
Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft over-inclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status….
Those of good faith on both sides of the gun debate wish to protect lives and uphold individual rights. We appreciate the seriousness of gun violence in this country and applaud Congress's laudable desire to curb senseless violence. But we also recognize that the Second Amendment embodies a fundamental, pre-existing right that enables "the people" to preserve their own life, liberty, and property. Striking a balance between those interests is a difficult exercise that draws intense passions on both sides. And that is for good reason.
But while Congress—or judges—may have struck a different balance long after ratification, that role is foreclosed to us by the balance that the Founders chose. We cannot now second-guess or undermine their choice. History makes clear that 18- to 20-year-olds were understood to fall under the Second Amendment's protections. Those over 18 were universally required to be part of the militia near the ratification, proving that they were considered part of "the people" who enjoyed Second Amendment rights, and most other constitutional rights apply to this age group. And Congress may not restrict the rights of an entire group of law-abiding adults because a minuscule portion of that group commits a disproportionate amount of gun violence. Congress's failure to connect handgun purchases from licensed dealers to youth gun violence only serves to highlight the law's "unduly tenuous 'fit'" with the government's substantial interests.
Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights. As a result, we vacate the district court's grant of the motion to dismiss, reverse the denial of summary judgment, and remand for further proceedings.
And from the likewise long dissent:
Today, my good colleagues in the majority break new ground by invalidating a modest and long-established effort to control gun violence. The majority holds that Congress may not enact a law making 21 the minimum age to purchase handguns from federally licensed gun dealers.
But the majority's decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system.
To be sure, the Second Amendment's right to keep and bear arms is an exceptional right, just not in the way the majority imagines. According to my colleagues, even though all individual constitutional rights are subject to limitations, the Second Amendment risks being relegated to a disfavored "second-class status."
While they are not alone in this concern, I do not share it. Indeed, in a country that boasts a Congress, bench, bar, academy, and electorate that are all attentive to the prerogatives of gun owners, where many may conceal their weapons, carry them openly, or "stand their ground," and where civilian gun ownership rates are second to none, the majority's second-class status concern is simply surreal.
No, the Second Amendment is exceptional not because it is uniquely oppressed or imperiled, but rather because it is singularly capable of causing harm. As other courts have recognized, while there are dangers inherent in other constitutionally protected rights—like the rights to speak and assemble—the Second Amendment alone protects a direct and lethal right to endanger oneself and others….
If the Fourth Circuit doesn't reverse this en banc, it seems very likely that the Supreme Court will agree to hear the case (given the disagreement between the Fourth Circuit and the Fifth Circuit on this question, and given that the Fourth Circuit panel has struck down a federal statute), assuming the federal government asks for Supreme Court review. If the Fourth Circuit does reverse this en banc, the Court may still hear the case (but would be much less likely to, if the Fourth and Fifth Circuits end up on the same side, upholding the federal statute).