The Volokh Conspiracy
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Fourth Circuit Decision Affirming Second Amendment Rights of 18-20 Year Olds Vacated as Moot
The passage of time catches up with a potentially significant gun rights decision.
In July, in Hirschfeld v. ATF, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the right to keep and bear arms enshrined in the Second Amendment applies to 18-20 year olds. Observers expected the Fourth Circuit might rehear the case en banc. Instead the decision has been vacated as moot, as none of the plaintiffs are 18-to-20-years old anymore. [Here are prior posts on the case from me and Eugene.]
Judge Richardson wrote a brief opinion for the court explaining the dismissal, joined by Judge Agee. He writes:
Plaintiff Natalia Marshall, while under the age of 21, wished to purchase a handgun from a federally licensed firearms dealer and sued to challenge the constitutionality of the federal laws and regulations which prohibited her from doing so while she was 18–20 years old. A divided panel of this court found those laws violated the text, structure, history, and tradition of the Second Amendment. After the opinion issued but before the mandate, Marshall turned 21. And that made her claims moot. Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case. So it must be dismissed as moot.
Once a case is rendered moot on appeal, we customarily vacate the opinions and remand with direction to dismiss. See United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950); . . . After weighing the equities, we follow that custom here.
I. This case is moot
We, of course, have only the power to adjudicate "Cases" and "Controversies." U.S. Const. art. III, § 2. A "Case" or "Controversy" under Article III no longer exists "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." . . . The case is instead moot and must be dismissed, "[n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit." . . . Here, Marshall challenged the prohibition on buying a handgun from a federally licensed firearms dealer while she was under 21. Once she turned 21, nothing prohibited her from buying the handgun she desired from a dealer of her choice. So her original claims are now moot.
To try to breathe new life into her claims after they became moot, Marshall alleged for the first time that she wishes to sell handguns to friends under 21. Those private sales would not typically be affected by the challenged laws and regulations. But Marshall seeks to bring those sales within this court's purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales (by, for example, running background checks on her friends).
This newly alleged injury was raised for the first time on appeal, and only after the case became moot, so we refuse to consider it here. A second effort to revive this case by adding new parties also fails. Surely recognizing the mootness concern, Plaintiff's attorney moved in the district court on July 24—the day before Marshall turned 21—to join new parties that might keep the case alive. But the district court lacked jurisdiction to grant the motion. Plaintiff's attorney only submitted a motion to our court on July 27, two days after Marshall turned 21. By that time, the case was moot. And we cannot grant a motion to join new parties that was filed after a case is moot. . . . So the requests to join new parties are denied. This case is moot and must be dismissed.
II. The opinions are vacated
As the case is moot and must be dismissed, the government asks that we also vacate both the panel opinions and district court opinions. This is indeed our customary practice. . . . But it is not, as once commonly thought, mandatory. . . . Rather, it is an "equitable tradition" informed by equitable reasoning. Id. In determining whether to exercise the discretion to vacate our panel decision (and that of the district court), we are "informed almost entirely, if not entirely, by the twin considerations of fault and public interest." . . .
We cannot assign fault to either party here. Marshall was bound to turn 21 in time. And though the efforts to remedy mootness came at the eleventh hour, they do not reflect any fault in Marshall's original case. So our decision turns on the public interest.
There are strong reasons to avoid vacatur here. The constitutional interests implicated and the short timeframe in which to challenge the restrictions mean there is a strong public interest in this precedent. And "[j]udicial precedents are presumptively correct and valuable to the legal community as a whole." . . .
Yet the public interest still favors vacating the opinions. To begin, our "customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court's judgment" and remand with directions to dismiss. . . . Adherence to our custom promotes the "orderly operation of the federal judicial system" and thus protects the public interest. . . .This course also "clears the path for future relitigation of the issues between the parties." . . . That the case became moot by happenstance also favors vacatur. . . . And we are reluctant to leave a preclusive judgment standing against a federal agency responsible for enforcing federal law while cutting off the appellate process, particularly where the panel is split in its views.
Finally, we note that the public and the "legal community as a whole," . . . will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. . . .
As a result, we deny the motion to intervene or join new parties; we reject the attempt to recast Marshall's injuries; we find the case moot; we remand to the district court with directions to dismiss as moot; and we vacate the prior panel opinions and the opinions of the district court.
Judge Wynn, who dissented from the original panel decision, concurred separately.
I join my fine colleague's opinion in adhering to our usual practice of vacatur in mooted cases like this one. I write separately to emphasize that while, thanks to today's technology, all vacated opinions remain available in the public sphere, they have no legal value. . . . The outcome here is that not only is the panel opinion vacated, but the entire matter including the district court's decision is moot and therefore vacated. That is, this action from its inception is mooted.
To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues' statement that "the panel and dissent will remain available as a persuasive source" means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.
This point is especially important here, where the opinions arising from our deeply divided panel became moot before the Court's en banc process could be undertaken. It stands to reason that because the now-vacated panel majority opinion created a circuit split while overturning a fifty-year-old federal law, this matter surely met the requirements of Rule 35 for en banc review.
With that said, I join in the dismissal of this matter as moot and the vacatur of the panel opinions. Perhaps our circuit will again confront this issue, but today is not that day.
