The Volokh Conspiracy
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Second Amendment Roundup: 5th Circuit Nixes Ban on Gun Sales to 18 to 20 Age Group
The original understanding in 1791, not that in 1868, governs.
On January 30, the Fifth Circuit decided Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, holding that the federal Gun Control Act's prohibition on the sale of firearms to persons under 21 years old, as applied to adults aged 18 to 20 years old, violates the Second Amendment. The law effectively banned handgun sales, as it has an exception for rifles and shotguns, which may be sold to persons 18 and older.
The opinion was authored by Judge Edith H. Jones and was joined by Chief Judge Elrod and Judge Barksdale. The provisions at issue are 18 U.S.C. § 922(b)(1), which governs in-person sales from a federally-licensed firearm dealer (FFL), and § 922(c)(1), a little-used provision which applies to sales in which the buyer does not appear at the FFL's premises in-person. Ironically, the court notes, "The Act and regulations do nothing to prohibit eighteen-to-twenty-year-olds from owning, possessing, or carrying handguns, nor does it prohibit them from buying handguns in the unlicensed, private market or receiving handguns as gifts."
While the words "purchase" and "sale" do not appear in the Second Amendment, the court noted that the right to "keep and bear arms" "surely implies the right to purchase them." Applying the first step of the analysis as directed by the Supreme Court in Bruen and Rahimi, the court stated: "The threshold textual question is not whether the laws and regulations impose reasonable or historically grounded limitations, but whether the Second Amendment 'covers' the conduct (commercial purchases) to begin with." Like the First and Fourth Amendments, the Second Amendment refers to "the people" without mention of age or maturity restrictions.
The court rejected the government's further textual argument that eighteen-to-twenty-year-olds lacked certain "civic rights" at the founding, such as jury service and suffrage, and thus were not part of "the people" protected by the Amendment. Women, not to mention African Americans, did not have such civic rights either. As the court continued:
Thus, to say that "the people" covered by the Second Amendment is limited to those who were a part of the "political community" at the founding would imply excluding "law-abiding, adult citizens" based on property ownership, race, or gender…. Just as defining "arms" as "only those arms in existence in the 18th century" "border[s] on the frivolous," likewise, attempting to limit "the people" to individuals who were part of the "political community" at ratification is ludicrous.
The reference to arms not being limited to those from the 18th century comes from the Supreme Court's decision in Heller holding that modern firearms are protected by the Amendment. As an aside, circuits covering states with prohibitions on modern firearms such as the AR-15 disregard what Heller said in upholding the bans. It's unlikely that the Fifth Circuit will have occasion to consider and weigh in on such bans because the states it covers are unlikely to enact them. That's why there is no circuit conflict on the issue and also why the Supreme Court should grant cert in Snope and Ocean State Tactical to resolve the issue without a circuit conflict.
In contrast to civic rights, the Reese court explained that the Second Amendment protects an individual right founded on the right to self-defense. At the founding, not only were there no age restrictions on the purchase of firearms, but eighteen-to-twenty-year-olds were required by both state and federal militia laws to obtain and keep firearms. The federal Militia Act of 1792 mandated "that each and every free able-bodied white male citizen" aged 18 to 44 must enroll in the militia and "provide himself with a good musket or firelock, … or with a good rifle…." Also, in view of the Second Amendment's "well regulated militia" clause, the court stated: "Eighteen-to-twenty-year-olds therefore must be covered by the plain text of the Second Amendment, as they were compulsorily enrolled in the regiments that the Amendment was written to protect."
The Fifth Circuit thus joined two other circuits in holding that eighteen-to-twenty-year-olds are part of "the people" protected by the Amendment. The Eighth Circuit, in Worth v. Jacobson, invalidated a Minnesota law barring 18-to-20-year-olds from carrying handguns in public. And the Third Circuit, in Lara v. Commissioner, invalided a Pennsylvania law prohibiting persons aged 18 to 20 from carrying firearms on public streets and property during a declared state of emergency.
The Reese court next applied step two of the Bruen/Rahimi analysis, asking whether the age ban is consistent with the Nation's historical tradition of firearm regulation. It is here where the government sought to turn that analysis upside down:
The government's theory inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age. Then the government works backward to assert that these laws are consistent with founding-era analogues focusing on the minority status and general "irresponsibility" of eighteen-to-twenty-year-olds. The government thus confects a longstanding tradition of firearm restrictions imposed on individuals under twenty-one.
The government presented nothing pertinent from the founding period. Two antebellum public universities were cited that prohibited students (without regard to age) from possessing firearms (but only on campus). A state law about constables cited by the government is almost laughable – as the court puts it, "Although 'infants,' i.e., legal minors under the age of 21, were categorically excluded from serving as constables, so also were justices of the peace, lawyers, attorneys, physicians, the poor, the sick, and the elderly."
By contrast, "eighteen-to-twenty-year-olds could be obliged to join the posse comitatus…. Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety."
The government made the further argument that the class of persons under 21 is more prone to being dangerous (I've never understood why the low rate of violence by females never gets mentioned). As the court rejoined, the handgun purchase ban requires no "judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon." That's a quote from Rahimi about the federal ban on possession of a firearm by a person with a domestic violence restraining order. Contrary to those who think that Rahimi weakens Bruen, that shows that Rahimi has teeth in support of Second Amendment rights.
Next, the government cited a number of mostly late 19th century state laws that restricted the subject age group's ability to purchase firearms, but Reese found that these laws "were passed too late in time to outweigh the tradition of pervasively acceptable firearm ownership by eighteen-to-twenty-year-olds at 'the crucial period of our nation's history.'"
To be sure, Bruen acknowledged an "ongoing scholarly debate" regarding the most relevant period of history for issues arising under the Fourteenth Amendment, but as Reese notes, Bruen clarified that "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." In Reese, the government presented "scant evidence" that persons 18 to 20 at the founding "were restricted in a similar manner to the contemporary federal handgun purchase ban," and its 19th century evidence, as Bruen (and Heller before it) said, "cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence." The federal sale ban was thus held to be unconstitutional.
In a case like Reese involving a federal law, it should never be an issue whether the original public understanding of the Second Amendment governs. But following its practice in other cases, amicus Everytown for Gun Safety actually argues that the 1868 understanding overcomes that of 1791, even in cases that are purely federal and involve no state action. Latching on to Bruen's comment that the Court has "assumed" that the scope for both state and federal governments "is pegged to the public understanding … in 1791," the brief asserts that "the Court expressly left open the question whether 1868 or 1791 is the relevant focus," and it pointed to "ongoing scholarly debate" mentioned above. Given what the Court has "assumed" in countless Bill of Rights cases, it is hardly the case that the Court "expressly" left the issue open based merely on the scholarly book and the law review article that the Court cited.
The Everytown brief goes on to argue: "If the Court decides to resolve the issue for future cases, … it should conclude that 1868 is the correct focus in cases challenging both federal and state laws." That's completely upside down. Heller teaches that the meaning of the Second Amendment is based on the 1791 understanding. McDonald teaches that the Fourteenth Amendment was understood to incorporate the Second Amendment, not to change the original meaning of the Second Amendment. For the definitive analysis of the subject, see Mark Smith's "Attention Originalists: The Second Amendment was adopted in 1791, not 1868" in Harv. J.L. & Pub. Pol'y Per Curiam.
The Reese case was argued by John Ohlendorf of Cooper & Kirk. It remains to be seen what will become of the ruling. As Prof. Jonathan Turley notes, "Had this decision come down under the Biden Administration, an appeal would likely have been taken and this could have strongly reinforced the Court's Second Amendment jurisprudence." One can only guess whether the Trump Administration will file a cert petition or let well enough alone.
But even if the Administration does not seek review, this issue likely is headed to the Court soon. On the same day Reese was decided, a panel of the Fourth Circuit heard McCoy v. ATF, a challenge to the same law. The questioning was very hostile to the Second Amendment challengers, so it appears likely that the Fourth Circuit will create a circuit split. If that happens, the likelihood of Supreme Court review would be high.
