The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier this month, in Hirschfeld v. ATF, a divided panel of the U.S. Court of Appeals for the Fourth Circuit concluded that the right to keep and bear arms enshrined in the Second Amendment applies to 18-20 year olds. Eugene blogged about the case here.
Most observers have assumed the Fourth Circuit would rehear this case en banc, but what if the case becomes moot before that can happen? As noted by "John Doe" (@fedjudges) on Twitter, it appears both plaintiffs will have turned 21 by the end of this month.
As the panel opinion noted, Hirschfeld's claims were moot because he had already turned 21 before the panel issued its decision. Although the opinion claims the other plaintiff, Marshall, is 19, it seems that might not be right. The initial complaint filed in 2018 said Marshall was 18 at the time, and a subsequent filing indicated that Marshall would turn 21 this month.
There is an argument this case should not be deemed moot under the exception for cases that raise issues that are capable of repetition yet evading review, but it is not entirely clear that exception applies here. On the one hand, it is likely that future cases brought by 18-20 year olds could meet the same fate before they make their way through the legal system. On there other hand, there are cases such as United States v. Juvenile Male that suggest mootness could be a significant problem.
One thing is clear, if there are additional proceedings in this case, whether before an en banc Fourth Circuit or the Supreme Court, the mootness issue will have to be addressed.