The Volokh Conspiracy
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Second Amendment Roundup: 18 to 20 Age Ban Cases Coming to a Head
Both sides agree the Supreme Court should grant cert.
On March 10, the respondents in the successful challenge to Minnesota's ban on issuance of pistol carry permits to persons aged 18 to 20, Jacobson v. Worth, agreed with the state petitioner that the Supreme Court should grant certiorari in the case. The Commissioner of the Department of Public Safety, the petitioner, asked the Court to grant, vacate, and remand (GVR) the case and in the alternative to resolve it on the merits. I previously analyzed the Eighth Circuit's reasoning in finding the exclusion of persons in the 18-20 age group to violate the Second Amendment here.
Days later, on March 14, the Eleventh Circuit issued its long-awaited en banc decision in National Rifle Association v. Bondi, upholding Florida's prohibition on purchase of a firearm by persons aged 18 to 20. That followed the Fifth Circuit's holding in Reese v. Bureau of Alcohol, Tobacco, Firearms and Explosives on January 30 that the federal restriction on handgun sales to persons under 21 violates the Second Amendment (see my post here). On the same date, that same issue was also argued in the Fourth Circuit in Brown v. ATF.
The Eighth Circuit in Jacobson was the first federal court of appeals to resolve a Second Amendment case following the Supreme Court's decision in Rahimi, which upheld the federal ban on possession of firearms by a person subject to a court order finding him to be a credible threat to the physical safety of an intimate partner. The court held that Minnesota failed to support its claim that 18 to 20-year-olds are a danger to the public. Contrast that with Rahimi, which repeatedly emphasized that the law at issue "applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another." The statistics applicable to the subject age group did not show that an 18-year-old, in Rahimi's words, "poses a clear threat of physical violence to another." Unlike the Minnesota law, the statute in Rahimi did "not broadly restrict arms use by the public generally."
Despite the Jacobson court's extensive analysis of Rahimi, the cert petition asks the Supreme Court to GVR the case because "instead of inviting supplemental briefing regarding the impact of Rahimi or remanding to the district court to conduct that analysis, the Eighth Circuit simply added Rahimi ornamentation to the Bruen-based opinion it had drafted." It argues that the Court should treat Jacobson the same as the several others that it GVRed for reconsideration in light of Rahimi. But all of those cases were decided before Rahimi. And again, Jacobson took full account of Rahimi.
Alternatively, the cert petition argues that the circuit conflict warrants the Court's plenary review. It claims that the "robust evidentiary record of historical principles and empirical data supports the constitutionality" of the statute based on two expert reports. Both turn out to be two of the most prominent suspects in anti-Second Amendment litigation.
The first expert is Professor Saul Cornell, touted to be a historian on "early American history on guns and people under 21." He's one and the same partisan who characterized the Court's decisions in Heller, McDonald, and Bruen as "the Federalist Society's latest intellectual scam," calling Bruen in particular "an ideological fantasy" and "an illustration of the current Supreme Court's new interpretive model: 'Fiction, Fantasy, and Mythology.'"
The second expert is Professor John J. Donohue, who opined on "the risks of gun violence from 18-to20-year-olds." Another partisan, Donohue repeated Justice Stevens' statement that Heller was "the worst decision [written by Justice Scalia] during his 34 years on the Supreme Court" and added that "Bruen has created an unworkable and largely nonsensical standard for evaluating gun regulations based on history when the history has very little to say about wise policy today."
As the cert petition notes, the challengers "submitted no expert reports on any issue or rebuttal facts on these issues." That's because, just as in Heller and Bruen, pure questions of law are the only issues.
The Jacobson respondents agree that the Court should grant cert and decide the merits, but should not GVR the case given that the Eighth Circuit already considered the issue in light of Rahimi.
As noted, the en banc Eleventh Circuit in NRA v. Bondi upheld Florida's ban on purchase of a firearm by a person in the 18-20 age group. The majority decision was written by Chief Judge William Pryor, who ironically won a high award from the NRA when he was the Alabama Attorney General, and whose Eleventh Circuit nomination was opposed in part for his supposed status as an "opponent of gun control legislation."
The panel decision had unabashedly ruled that "Historical sources from the Reconstruction Era are more probative of the Second Amendment's scope than those from the Founding Era." Everytown Law has been citing that conclusion in all of its briefs, even after the petition for rehearing was granted and the decision was vacated.
Chief Judge Pryor wrote to the contrary that "the Founding era is the primary period against which we compare the Florida law." Not only has the Supreme Court "warned against the overuse of history from Reconstruction," but also its interpretation of other amendments "reflect the preeminence of Founding-era sources to the meaning of the Bill of Rights." However, "we may look to historical practice from the mid-to-late nineteenth century at least to confirm the Founding-era understanding of the Second Amendment."
Fair enough. But the problem is that there are no Founding-era analogues for Florida's criminalization of the purchase of a firearm to a person who is in the 18-20 age group. Instead, the majority relies primarily on the fact that at the Founding, a contract with a person under 21 was revocable, and thus it was more difficult for such person to purchase a firearm on credit. That was because minors were not considered reliable, which is also the reason for Florida's law, thus satisfying Bruen's "why" component. As to "how" the right was burdened, at the Founding minors may have found it difficult to purchase firearms because they "lacked cash and the capacity to contract," whereas the Florida law imposes up to five years in the penitentiary for purchase of a firearm. The court doesn't say it that way, but that's the reality. To call that a valid analogue for the Florida law seems incredible.
For the majority, that premise opened the floodgates to out-of-bounds, post-enactment history: "The laws from the mid-to-late nineteenth century make explicit what was implicit at the Founding: laws may regulate the purchase of firearms by minors." But even then, the court concedes that the state laws of that period (for the states that had any such laws) only regulated sale of concealable weapons, not rifles or shotguns.
Moreover, the court adds, "some of these laws permitted women to purchase arms at 18 years of age instead of 21." That's the only use of the word "women" in the majority opinion or any of the concurrences. Florida purported to ban firearm purchases because of the higher rate of violence of "people" in the affected age group, but that rate is largely limited to males. What was the justification for banning purchases by females?
Unwittingly, the majority opinion likely would support banning married women from buying guns, since like minors at the Founding, they too lacked contract rights under the doctrine of coverture. This highlights the majority's "law trapped in amber" problem—even if it were true that 18-to-20-year-olds and married women may have had difficulty acquiring a firearm at the Founding because of limitations on their right to contract, that would not support limitations on those groups today because 18-to-20-year-olds now are generally considered adults and we have repudiated the doctrine of coverture. And there is no historical principle that would support banning gun sales to any group of adults on account of their age or sex.
Three judges joined in Judge Brasher's dissenting opinion, two of which also wrote their own dissents. Today, 18 is the age of majority, and not just for contract rights. The Commissioner of the Department of Law Enforcement (the nominal defendant) conceded that such persons are part of "the people" under the Second Amendment. Further:
The Commissioner concedes that young adults at the Founding could purchase guns with money up front; the very thing they are prohibited from doing by Florida's ban. He concedes that they could even purchase guns on credit as long as the seller was willing to bear the risk that the contract might be voided, and the gun returned.
As in all of these age cases, the elephant in the kitchen is that males 18 and over were required, most prominently by the federal Militia Act of 1792, to obtain their own arms and bring them to militia musters. (The majority wrote this off because some parents bought the arms for their children in this age group.) Further, as the Georgia Supreme Court wrote in Nunn v. State (1846), the Second Amendment protects the "right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms."
No question exists that a cert petition will be filed in NRA v. Bondi. It will be interesting to see how Attorney General Pam Bondi's Department of Justice will respond. At any rate, the circuit court decisions are split and have now percolated to the boiling point, and so the Supreme Court may as well grant cert in Jacobson v. Worth and resolve the issue.
