Will Fourth Circuit Decision on Gun Rights of 18-20 Year Olds Become Moot?

What (if anything) will the courts do once the plaintiffs turn 21?


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.

NEXT: Can the Attorney General's Daughter Clerk on the Supreme Court?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Would a class action avoid this problem?

    1. Same problem: the class representative (i.e. the named plaintiff) would have to have standing to claim injunctive relief. But they can also age out during the litigation process rendering their claim moot. I suppose they can move to substitute the class representative during the course of the litigation, but I’m not sure about the law in that area. It would almost certainly be opposed and then there would be a big fight over whether the new class rep satisfies the criteria.

      1. Could you build a class involving newborns? I mean 20 years should be long enough to get through the court system.

      2. even AFTER turning 2, these plaintiffs retain standing because they WERE harmed by the denial when younger. Further, the courts are charged with making rulings based on what is right and proper, and whether the right SHOULD have not been denied AT THE TIME it was denied. Setting a precedent going forward IS part of the function of the court system.
        Otherwise, there is no point to suing to end such age discriminatioin, as the courts can always figure out how to stall things, thus making the case moot before a decision is issued. I am now going on six years in a case that has denied me monetary benefits doe me under the laws of my state. Had I been renderd destitute bacause of the lack of income, and perhaps died, they’d win, s theyd not have to pay out. Staling and delaying ALWAYS hurts the petitioning party, and never hurts the government side of the case. At least in mine, once justice is finally dished out, they will have tp pay interest for every day the funds were withheld. That alone will be a fat check. Meanwhile, I scrape and scrap and do without…..

      3. That does not seem less me justice. In the long term, we are all over some threshold, then eventually dead. But it is not justice to run the process so slowly that everything will be mooted from the moment of filing.
        It seems that courts find shelter in running out the clock. And that is the greater injustice.

  2. “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, ”

    On the grounds that the plaintiffs might get younger?

    1. On the grounds that other people are turning 18 all the time.

      1. And then those other people would have claims. But the actual plaintiffs here can never have them again once they turn 21.

        1. Right, so by that standard, no one should ever have standing for an abortion claim, as you can slow the process down such that the baby is born.

          1. That satisfies the “capable of repetition” factor. One can become pregnant again.

        2. Wow

          So, if we establish a policy of torturing and killing people who suffer from TDS, they can sue while they’re being tortured, but if they’re killed then the suit becomes moot, since they’ll never be killed or tortured again?

          And the fact that we’re going to do it to other people doesn’t make the case not moot, because none of them have been tortured yet?

          That’s an amazingly stupid position, David, even for you

          1. So, if we establish a policy of torturing and killing people who suffer from TDS, they can sue while they’re being tortured, but if they’re killed then the suit becomes moot, since they’ll never be killed or tortured again?

            That depends whether they’re seeking damages for past harm or just injunctive relief against the policy. They — or, rather, their estates — would have standing wrt the former, but not the latter.

  3. I don’t see how this is materially different from the mootness analysis for abortion cases, except for the fact that you’re only 18 once. Any case that they can drag out long enough to age out the plaintiff should be viewed as capable of repetition yet evading review.

    1. The second prong does seem to constitute a problem because the challenged act has to be able happen to the specific plaintiff again. Given how long litigation can be, it might be time to create an exception to the mootness doctrine that addresses aging during the course of litigation generally.

      1. So, if somebody filed suit over having been sterilized against their will, they’d lack standing on account of the fact that you can only be sterilized once?

        To quote Roe, “Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.””

        I believe the part I put in italics would cover being 18; While any given person is only 18 once in their life, “if man is to survive”, being 18 will always be with us…

        1. “So, if somebody filed suit over having been sterilized against their will, they’d lack standing on account of the fact that you can only be sterilized once?”

          Well they’d lack standing for injunctive relief as to them specifically or declaratory relief because the controversy isn’t live. If they were suing for damages, it would not be moot. And I think for post-deprivation sterilization the only remedy would be damages.

          Right, again the test as it currently is is plaintiff specific. So Jane Roe could be pregnant again in TX and have the same issue. The Plaintiffs here cannot become under 21 again and would lose standing for the relief they seek. Setting aside all the sovereign immunity issues, if this were a suit for damages for the time they were wrongfully deprived of their Second Amendment rights then it would not be moot.

          1. As I’ve pointed out below, you can have a class representative who’s younger than 18, because the prospect of future harm counts towards standing.

            And if you look at some of the cases, they admit the possibility of having a class whose members are continually shifting in and out of the class, so long as somebody in the class has a live claim at all points.

            The real problem here is that this is a 2nd amendment case, and the Court will take any excuse it can find not to take 2nd amendment cases.

            1. I think you could probably substitute the class representative mid litigation once the first one ages out. And if you can get a plaintiff who will likely still be under 21 when the litigation concludes, you don’t need a class representative.

              No one has ruled on mootness yet so we don’t know if courts are treating anything differently because of the right at issue

              But It’s long been the rule you can’t enjoin something that doesn’t harm the plaintiff anymore. The plaintiff can get a gun and is not longer harmed by the regs. There is nothing to enjoin. He can’t get a declaratory judgment because there is no longer a live controversy, since the government action no longer prohibits him for doing what he wants.

              I think you’d get the same mootness problem if you were say challenging an age limitation on cigarette possession or driver licenses, etc.

  4. Suppose you create a law that says people aged 18 can’t buy a gun (or can be forbidden from voting, or …). Pass a separate law that says the same for 19 year olds, another law for 20 year olds, and so on.

    Do I have it right – any individual plaintiff has to wait until he turns N years old to challenge the applicable law – let’s call it Law N – but the case becomes moot when he ages to N+1 (because Law N would never apply again to him; he’d have to start a new suit about Law N+1)?

    1. Get off my Law N!

  5. Will the real Marshall Mathers please stand up?
    And put one of your fingers on boths hand up.
    For a mootness doctrine thats plain to see,
    deprives you of your 2nd amendment liberty.

  6. It’s the easy way out for the Courts.

    1. Especially this Court, which will desperately grasp for any excuse to avoid deciding cases.

  7. Anything to avoid actually ruling on a constitutional issue.

  8. See Uzzell v. Friday —

    What happened there was they kept adding new plaintiffs to replace those who were graduating. Why can’t new 19-year-olds be added here?

    1. If you look at Singleton v. Wulff, often cited on this topic, the court said, “And it may be that a class could be assembled, whose fluid membership al-ways included some women with live claims.”

      Anticipating exactly your point.

  9. I don’t think the Juvenile Male case cited answers the exception question. A child can be deemed delinquent of a covered offense at any minor age so can appeal at any age. That is it is certainly possible and indeed likely that there will be a petitioner still young enough when the case would be heard.

    Here since it doesn’t even start until the plaintiff would be 18 and only has 3 years it is likely that all cases would evade review because the courts move at pace that would make a snail impatient. Ideally this would be moot because cases would be heard faster. I don’t know the average time it takes for a case to run it’s course but it certainly doesn’t seem to be fast enough for 4 years to be enough, especially if the state wants to drag it out. So i think the exception should apply.

  10. Is there some reason you couldn’t have a class representative who was 15 at the start of the litigation? The standard is “claim of specific present objective harm or a threat of specific future harm.” The 15 year old might not have a specific present harm, but they certainly have the threat of a specific future harm.

    1. Maybe. Although you would need a case brought through their Guardian or next friend or whatever, and I’m not sure what limitations there are on that at the Federal level. But if you had a plaintiff who was young enough to survive the entire litigation seeking an injunction/dec judgment you wouldn’t need to mess around with a class action.

      1. How about a group of plaintiffs of various ages, say siblings of a family with a tradition of hunting such that one or more could be 18-21 and others younger, who might have a future claim?

        1. That might work.

    2. The problem is that it would be speculative that the 15 year old will still want to buy a gun at age 18.

      Now, you could argue (and I would agree) that a 15 year old who wants a gun badly enough to start a lawsuit three years early is unlikely to change his/her mind. But it’s more than enough for a motivated judge to reject the case as speculative harm.

      1. It’s speculative that Roe will ever get pregnant again, too. The court said the “threat” of future harm, not the “certainty” of it.

  11. The harm occurred when these two individuals were under 21. It’s absolutely maddening that courts would even entertain the idea that waiting out the clock on constitutional issues is acceptable.

    1. I don’t think it’s the courts, although they move slowly, so much as the opponents who could easily string out the proceedings. Of course any decision is bound to be appealed so it could easily take many years to get final resolution.

  12. This argument is clearly nonsensical and there is ample precedent for it.

    To compare, Roe of Roe Vs. Wade had given birth years before her case made it all the way to the supreme court. It was still challenged, debated, and ruled on. Given the sheer length of time that the courts take, this claim would make many time-based restrictions impossible to challenge.

    Am I missing something here?

    1. Hell, take 100 years to decide a case and virtually everything will become moot!

  13. New York takes as long as 24 months to issue a license to own a pistol in the home. The same nonsense occurs- applicants file legal actions to compel issuance of the license, and by the time the appeal is heard, the county has issued the license, with no compensation or damages for the delay as most of the applicants just take their “hunting/home” license and go away. The state level gamesmanship will continue no matter what the SCOTUS does with the 2nd standard of review.

    1. If the Supreme Court actually lays out an appropriate level of scrutiny in NYSRPA, then such time periods will be problematic on their own. The courts would never let a city get away with taking 8 months to issue a permit to march, for example.

  14. These cases should not be declared moot. While the complaining parties have or will shortly turn 21, I suspect that a bunch of others, whose rights have been abused have not turned 21, nor will they in the very near future. In any case, the rights of individuals have been denied, a situation that is less than acceptable, a whole lot less that acceptable.

  15. Add a claim of $1 of nominal damages for having been denied the right to buy a gun at age 18, then the case isn’t moot

  16. Didn’t the teens win at the 4th Circuit level? If they age out, doesn’t that set the case in stone, at least in the 4th circuit, because there can be no further appeal of the now-moot case?

Please to post comments