The constitutional right to bear arms enshrined in the Second Amendment should apply to those between the ages of 18–20, declared the U.S. Court of Appeals for the 4th Circuit today in Hirschfeld v. Bureau of Alcohol Tobacco, Firearms and Explosives.
Tanner Hirschfeld and Natalia Marshall challenged the constitutionality of federal laws that ban federally licensed firearm dealers from selling handguns and handgun ammunition to 18–20 year olds. Those federal restrictions have been on the books since 1968.
Hirschfeld is now over 21 but Marshall is not. She felt she had convincing reasons to be able to legally buy a gun from a licensed dealer, including an active protective order against an abusive ex who had himself been arrested for unlawful possession of a gun. Her job as a horse trainer also has her often in faraway rural areas dealing with strangers. She wants, and thinks she should be able to easily and legally get from a licensed dealer, a handgun for her protection.
The three-judge panel of the 4th Circuit, in a 2-1 decision written by Judge Julius N. Richardson, saw no particular reason why that age group of adults should lack the same Second Amendment rights possessed by those aged 21 and over. “Our nation’s most cherished constitutional rights vest no later than 18,” the ruling said. “And the Second Amendment’s right to keep and bear arms is no different.” Individuals over the age of 18 “enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons.”
The lower court that first heard the case did not think the laws should fall under the Second Amendment, leading to this appeal. As the 4th Circuit explained, the lower court
held that the laws were facially valid because they “are among the ‘longstanding prohibitions’ and ‘conditions and qualifications on the commercial sale of arms,’ which the Supreme Court in Heller did not ‘cast doubt’ on.” ….
The court also found that the laws fell outside the scope of the Second Amendment because similar regulations were historically common among the states….In the alternative, the court relied on the legislative record and some of the amici’s evidence to find that the laws passed intermediate scrutiny.
The 4th Circuit disagreed, holding that the burden of being unable to buy from a licensed dealer struck at the core of Marshall’s Second Amendment rights. “Other options are not always readily available to many individuals,” the 4th Circuit observed. “Not all young adults have friends or family members who are able or willing to gift them a gun. And secondary markets are not always available to everyone or easy to navigate safely.” Meanwhile, “licensed dealers come with assurances of quality, safety, legality, and more. These laws push young law-abiding adults to a less safe, less regulated market to defend themselves.”
District of Columbia v. Heller, the 2008 Supreme Court decision that established modern Second Amendment jurisprudence, did mention certain “longstanding” gun laws that should not be presumed to be overturned by that case’s narrow decision about the right to armed self-defense in the home with commonly owned weapons. Richardson’s decision for the 4th Circuit argued that such language in Heller should not be read to create “a freestanding category of laws exempt from Second Amendment scrutiny based solely on how long similar laws have existed.”
According to Richardson, the text of the Constitution itself shows “the Founders considered age and knew how to set age requirements but placed no such restrictions on rights, including those protected by the Second Amendment.” Furthermore, “Every militia law near the time of ratification required 18-year-olds to be part of the militia and bring their own arms.”
“At the time of ratification, there were no laws restricting minors’ possession or purchase of firearms,” Richardson’s ruling continued. “Most laws affecting minors post-date the Civil War, and the only two states to pass such laws before the Civil War did so immediately before the war.” In short, the Second Amendment applies to those 18 and up.
The federal government defended the gun control measures in part by citing the supposed increased dangers of gun violence from those in the impacted age groups. But Richardson did not find those arguments persuasive. “A showing of disproportionate bad conduct by a group cannot justify categorical restrictions on rights when the percentage of the group engaged in the unwanted conduct is minuscule,” the judge wrote. And “the evidence does not sufficiently link purchases from licensed dealers to crimes committed by youth.”
“Around 0.3% and definitely less than 1%, of the 13 million young adults in this group” are known to commit violent crimes, the decision noted. What is more, the notion that most 18–20-year-old criminals bought their guns from licensed dealers is simply unproven.
Notably, the 4th Circuit today reached the opposite conclusion reached by the U.S. Court of Appeals for the 5th Circuit, which did not recognize Second Amendment rights for 18-20 year olds in National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms and Explosives (2012).
Judge James A. Wynn was the one dissenting vote in today’s 4th Circuit ruling. He argued that the Second Amendment is decidedly different from other constitutional rights because “it is singularly capable of causing harm. As other courts have recognized, while there are dangers inherent in other constitutionally protected rights—like the rights to speak and assemble—the Second Amendment alone protects a direct and lethal right to endanger oneself and others.”
The U.S. Court of Appeals for the 9th Circuit is in the process of considering a case, Jones v. Bonta, on the same issue as applied to California law. Similar Minnesota laws affecting the gun rights of 18–20 year olds are also currently under legal challenge.
The federal government will likely ask a full panel of 4th Circuit judges to rehear today’s case. If that does not happen, or if the full 4th Circuit hears the case and also rules against the federal gun laws, then the “circuit split” between the 4th and 5th Circuits on this issue may catch the attention of the Supreme Court, which recently agreed to hear another Second Amendment case, about the right to carry guns in public, after avoiding gun rights cases for years.
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