The federal ban on handgun sales to adults younger than 21 violates the Second Amendment, the U.S. Court of Appeals for the 5th Circuit ruled today. That law is “unconstitutional in light of our Nation’s historic tradition of firearm regulation,” a three-judge panel unanimously concluded in Reese v. ATF.
“Today’s ruling is yet another critical FPC win against an immoral and unconstitutional age-based gun ban,” said Brandon Combs, president of the Firearms Policy Coalition (FPC), which challenged the law along with two would-be handgun buyers and two other gun rights groups. “We look forward to restoring the Second Amendment rights of all peaceable adults throughout the United States.”
Under 18 USC 922(b)(1), a provision that was included in the Gun Control Act of 1968, a federally licensed firearm dealer may not sell handguns to “any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age.” The 5th Circuit upheld that restriction in 2012, but that was a decade before the Supreme Court clarified the constitutional test for gun control laws in New York State Rifle & Pistol Association v. Bruen.
Under Bruen, the government has the burden of demonstrating that a law restricting conduct covered by “the Second Amendment’s plain text” is “consistent with this Nation’s historical tradition of firearm regulation.” The 5th Circuit concluded that the government’s defense of Section 922(b)(1) failed that test.
The government’s lawyers argued that 18-to-20-year-olds are not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment. They cited “the common law’s recognition of 21 years as the date of legal maturity at the time of the founding” and “the fact that legislatures have long established minimum age requirements for various activities.”
As Judge Edith Jones notes in the 5th Circuit’s opinion, however, “there are no age or maturity restrictions in the plain text of the Amendment, as there are in other constitutional provisions,” which “suggests that the Second Amendment lacks a minimum age requirement.” She also observes that “the right of the people peaceably to assemble” (protected by the First Amendment), “the right of the people” to be secure from “unreasonable searches and seizures” (protected by the Fourth Amendment), and the unspecified rights “retained by the people” under the Ninth Amendment “undoubtedly protect eighteen-to-twenty-year-olds as much as twenty-one-year-olds.”
Jones adds that “the history of firearm use, particularly in connection with militia service, contradicts the premise that eighteen-to-twenty-year-olds are not covered by the plain text of the Second Amendment.” Under the 1792 Militia Act, “eighteen-to-twenty-year-olds not only served in that militia, but were required to serve,” she writes. “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….While the core of the right [to arms] is rooted in self-defense and unconnected with the militia, the text of the Amendment’s prefatory clause considered along with the overwhelming evidence of their militia service at the founding indicates that eighteen-to-twenty-year-olds were indeed part of ‘the people’ for Second Amendment purposes.”
In short, Jones writes, “the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among ‘the people’ whose right to keep and bear arms is protected.” Having failed to dodge the Bruen test, the government had to cite historical precedents that are “relevantly similar” to Section 922(b)(1). It relied “principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age.”
Those 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,'” Jones says. “The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th century evidence ‘cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.'”
The U.S. Court of Appeals for the 4th Circuit reached a similar conclusion in July 2021, when a divided panel ruled in Hirschfeld v. ATF that “our nation’s most cherished constitutional rights vest no later than 18,” adding that “the Second Amendment’s right to keep and bear arms is no different.” But the court vacated that decision two months later after the plaintiff turned 21. A different 4th Circuit panel is considering another challenge to the federal age restriction on handgun sales, and today it heard oral arguments in that case.
The 9th Circuit weighed similar issues in 2021, when it considered Jones v. Bonta, a challenge to a California law that sets a minimum purchase age of 21 for all firearms. The following year, a 9th Circuit panel concluded that “the Second Amendment protects the right of young adults to keep and bear arms, which includes the right to purchase them.” But the full court vacated that decision in September 2022 and remanded the case for further consideration by the district court, which upheld the law in December 2023.
