Tanner Hirschfeld v. ATF

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2250
TANNER HIRSCHFELD; NATALIA MARSHALL,
Plaintiffs – Appellants,
v.
BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; MARVIN
RICHARDSON, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives; MERRICK B. GARLAND, Attorney General,
Defendants – Appellees.
-------------------------------
BRADY; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; EVERYTOWN
FOR GUN SAFETY SUPPORT FUND,
Amici Supporting Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Glen E. Conrad, Senior District Judge. (3:18−cv−00103−GEC)
Argued: October 30, 2020 Decided: July 13, 2021
Before AGEE, WYNN, and RICHARDSON, Circuit Judges.
Vacated, reversed, and remanded by published opinion. Judge Richardson wrote the
opinion, in which Judge Agee joined. Judge Wynn wrote a dissenting opinion.
ARGUED: Elliott Michael Harding, HARDING COUNSEL PLLC, Charlottesville,
Virginia, for Appellants. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees. Kirti Datla, HOGAN LOVELLS US LLP,
Washington, D.C., for Amicus Brady. Angela Ellis, SULLIVAN & CROMWELL LLP,
Washington, D.C., for Amicus Giffords Law Center to Prevent Gun Violence. ON
BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas T. Cullen,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellees. Jonathan E. Lowy, Kelly Sampson, BRADY, Washington, D.C.;
Michael J. West, Washington, D.C., Jon M. Talotta, HOGAN LOVELLS US LLP, Tysons,
Virginia, for Amicus Brady. Hannah Shearer, Hannah Friedman, San Francisco,
California, J. Adam Skaggs, GIFFORDS LAW CENTER TO PREVENT GUN
VIOLENCE, New York, New York; Robert A. Sacks, Leonid Traps, Jackson Froliklong,
Rachel H. Vangelder, SULLIVAN & CROMWELL LLP, New York, New York, for
Amicus Giffords Law Center to Prevent Gun Violence. Eric Tirschwell, William J. Taylor,
Jr., EVERYTOWN LAW, New York, New York; Darren A. LaVerne, Karen S. Kennedy,
Jessica K. Weigel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New
York, for Amicus Everytown for Gun Safety Support Fund.
2
RICHARDSON, Circuit Judge:
When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In
the law, a line must sometimes be drawn. But there must be a reason why constitutional
rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional
rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is
no different.
Plaintiffs seek an injunction and a declaratory judgment that several federal laws
and regulations that prevent federally licensed gun dealers from selling handguns to any
18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds
possess Second Amendment rights. They 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. We then ask, as our precedent requires, whether the government has met
its burden to justify its infringement of those rights under the appropriate level of scrutiny.
To justify this restriction, Congress used disproportionate crime rates to craft over-
inclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing
so, Congress focused on purchases from licensed dealers without establishing those dealers
as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the
challenged federal laws and regulations are unconstitutional under the Second
Amendment. Despite the weighty interest in reducing crime and violence, we refuse to
relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.
3
I. Background
Prospective handgun buyers sued the Bureau of Alcohol, Tobacco, Firearms and
Explosives seeking an injunction and a declaratory judgment that federal statutes
prohibiting Federal Firearm Licensed Dealers from selling handguns and handgun
ammunition to 18-, 19-, and 20-year-olds (and the federal regulations implementing those
statutes) violate the Second Amendment. See 18 U.S.C. § 922(b)(1), (c)(1); 27 C.F.R.
§§ 478.99(b)(1), 478.96(b), 478.124(a). 1
Nineteen-year-old Natalia Marshall had good reason to seek protection. She had
been forced to obtain a protective order against her abusive ex-boyfriend who, since the
issuance of the order, had been arrested for unlawful possession of a firearm and controlled
substances. He was released on bail but never came to court, leading to the issuance of a
capias for his arrest. Along with the threat from her ex-boyfriend, Marshall works as an
equestrian trainer, often finding herself in remote rural areas where she interacts with
unfamiliar people. Having grown up training with guns, she believes that a handgun’s ease
of carrying, training, and use makes it the most effective tool for her protection from these
and other risks. But because Marshall was 18 when she tried to buy a handgun, a federal
law prevented her from buying from a licensed dealer who would perform a background
check to verify that she was not a felon or other prohibited person. She preferred using a
licensed dealer because they tend to have a wider supply, a good reputation, and a guarantee
Plaintiffs also contend that the laws violate the equal-protection component of the
1
Fifth Amendment’s Due Process Clause. Because the laws violate the Second
Amendment, we need not resolve that question.
4
that the guns have not been used, stolen, or tampered with. She is now 19 and remains
unable to buy a handgun from a federally licensed dealer for self-defense.
The other Plaintiff, Tanner Hirschfeld, tried to buy a handgun from a licensed dealer
and was denied because he was only 20. But he has since turned 21 and is no longer
affected by these laws. His claims are therefore moot. See Craig v. Boren, 429 U.S. 190,
192 (1976). Marshall, however, is not yet 21, so this appeal may still proceed.
A. The challenged laws
In 1964, Congress, concerned about increasing gun violence, began a “field
investigation and public hearings.” S. Rep. No. 88-1340, at 1 (1964). Congress concluded,
among other things, “that the ease with which” handguns could be acquired by “juveniles
without the knowledge or consent of their parents or guardians . . . is a significant factor in
the prevalence of lawlessness and violent crime in the United States.” Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 901(a)(2), 82 Stat. 197,
225; see, e.g., S. Rep. No. 90-1097, at 77 (1968). Statistics, testimony from law
enforcement, and other evidence showed that a large portion of violent crime and its
escalation stemmed from minors with guns. 2 Based on the testimony from Internal
2
The legislative record established that “juveniles account for some 49 percent of
the arrests for serious crimes in the United States and minors account for 64 percent of the
total arrests in this category.” S. Rep. No. 90-1097, at 77 (1968). “[M]inors under the age
of 21 years accounted for 35 percent of the arrests for the serious crimes of violence
including murder, rape, robbery, and aggravated assault” and 21 percent of the arrests for
murder. 114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Dodd, Chairman, S.
Subcomm. on Juvenile Delinquency). Congress found “a causal relationship between the
easy availability of firearms other than a rifle or shotgun and juvenile and youthful criminal
behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat. at 225–26. Federal officials
5
Revenue Service Commissioner Sheldon Cohen, Congress concluded that juveniles
obtained these guns from licensed dealers who sell to “emotionally immature, or thrill-bent
juveniles and minors prone to criminal behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6),
82 Stat. at 226; see Federal Firearms Act: Hearings Before the H. Comm. on Ways and
Means, 89th Cong. 31 (1965) (testimony of Sheldon S. Cohen) (explaining that “importers,
manufacturers, and dealers who operate under licenses issued by the Federal Government”
are responsible for putting firearms in the hands of juveniles). They also found that “the
handgun is the type of firearm that is principally used in the commission of serious crime”
and “the most troublesome and difficult factor in the unlawful use of firearms.” S. Rep.
No. 89-1866, at 4–7 (1966). Seeking only to curtail the “clandestine” purchase of weapons
by juveniles without their parents’ knowledge, Congress sought to permit the ownership
and use of firearms with parental permission. Id. at 58–59; S. Rep. No. 90-1097, at 79;
114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Thomas J. Dodd).
To address these concerns, Congress passed the Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197. The preamble declares:
[T]he ease with which any person can acquire firearms other than a rifle or shotgun
(including criminals, juveniles without the knowledge or consent of their parents or
testified that “[t]he greatest growth of crime today is in the area of young people, juveniles
and young adults” and that “[t]he easy availability of weapons makes their tendency toward
wild, and sometimes irrational behavior that much more violent, that much more deadly.”
Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinquency
of the S. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon S. Cohen).
Law enforcement officers from New York City, Los Angeles, St. Louis, Chicago,
Philadelphia, and Atlanta provided Congress with “statistics documenting the misuse of
firearms by juveniles and minors,” which took on “added significance” because the “lawful
acquisition of concealable firearms by these persons was prohibited by statute” in each of
those cities. S. Rep. No. 89-1866, at 58–60.
6
guardians, narcotics addicts, mental defectives, armed groups who would supplant
the functions of duly constituted public authorities, and others whose possession of
such weapons is similarly contrary to the public interest) is a significant factor in
the prevalence of lawlessness and violent crime in the United States.
Id. § 901(a)(2), 82 Stat. at 225.
The Act prohibited licensed dealers from selling handguns to anyone under age 21
but permitted the sale of shotguns and rifles to those individuals. Id. § 902, 82 Stat. at 230.
Later that year, Congress amended the law to prohibit licensed dealers from selling any
firearm to those under 18 and maintained the ban on the sale of handguns for 18-, 19-, and
20-year-olds. Gun Control Act of 1968, Pub. L. No. 90-618, tit. I, § 102, 82 Stat. 1213,
1218. 3 The section, which has remained unchanged since 1968, reads:
[It is] unlawful for any licensed importer, licensed manufacturer, licensed dealer, or
licensed collector to sell or deliver any firearm or ammunition to any individual who
the licensee knows or has reasonable cause to believe is less than eighteen years of
age, and, if the firearm, or ammunition is other than a shotgun or rifle, or
ammunition for a shotgun or rifle, to any individual who the licensee knows or has
reasonable cause to believe is less than twenty-one years of age.
Id. (codified at 18 U.S.C. § 922(b)(1)). The implementing regulation, 27 C.F.R.
§ 478.99(b)(1), contains similar language. The law did not eliminate any age group’s
3
The provisions of the Omnibus Crime Control and Safe Streets Act of 1968 cited
here never took effect. That Act, passed June 19, 1968, would not have taken effect until
180 days later, or December 16, 1968. Pub. L. No. 90-351, tit. IV, § 907, 82 Stat. at 235.
The Gun Control Act of 1968, passed October 22, 1968, supplanted the relevant sections
of the Omnibus Crime Control and Safe Streets Act of 1968, see Pub. L. No. 90-618, tit. I,
§ 102, 82 Stat. at 1214, and took effect on December 16, 1968, see id. § 105(a), 82 Stat. at
1226.
7
ability to own, possess, or use a gun. Id. 4
Another part of the law requires licensed dealers to obtain a sworn statement of age
before transferring a firearm to a remote purchaser. 18 U.S.C. § 922(c) (providing that a
licensed dealer “may sell a firearm to a person who does not appear in person at the
licensee’s business premises . . . only if the transferee submits to the transferor a sworn
statement” affirming “that, in the case of any firearm other than a shotgun or a rifle, [the
buyer is] twenty-one years or more of age”). And regulations promulgated by the Bureau
of Alcohol, Tobacco, Firearms and Explosives require licensed dealers to keep a firearms
transaction record, Form 4473, which records, among other things, each transferee’s date
and place of birth. See 27 C.F.R. § 478.124(a) (mandating that “[a] licensed importer,
licensed manufacturer, or licensed dealer shall not sell or otherwise dispose, temporarily
or permanently, of any firearm to any person, other than another licensee, unless the
licensee records the transaction on a firearms transaction record, Form 4473”); id.§ 478.124(c)(1), (f) (describing the Form 4473 requirements).
The upshot of these statutes and regulations is that 18-, 19-, and 20-year-olds may
not buy handguns or handgun ammunition from a licensed dealer. This is what Marshall
challenges.
4
Dealers may lawfully sell firearms to parents or guardians who may gift them to
their minor children if the minors are not otherwise prohibited from receiving or possessing
a firearm. J.A. 45–49 (Opinion of ATF Chief Counsel, No. 23362 (Dec. 5, 1983)). But
parents may not buy firearms for their children with money provided by children under the
age of 21. See 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A); see also Abramski v. United States,
573 U.S. 169, 193 (2014) (finding a violation of §§ 922(a)(6) and 924(a)(1)(A) when an
individual prohibited from purchasing a gun used a straw man to acquire the gun).
8
B. Procedural history
Plaintiffs’ complaint challenged the facial validity of the federal laws and
regulations restricting their ability to buy a handgun from a licensed dealer. For relief, they
sought a broad declaration that the challenged provisions violate the Second Amendment
and an injunction preventing their enforcement. The government moved to dismiss for
failure to state a claim, and Plaintiffs moved for summary judgment.
The district 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.” Hirschfeld v. Bureau
of Alcohol, Tobacco, Firearms & Explosives, 417 F. Supp. 3d 747, 756 (W.D. Va. 2019).
The court also found that the laws fell outside the scope of the Second Amendment because
similar regulations were historically common among the states. Id. 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. Id. at 758. So the court denied Plaintiffs’ motion for
summary judgment and dismissed the complaint. Plaintiffs timely appealed.
We have subject-matter jurisdiction over this appeal under 28 U.S.C. § 1291. The
denial of summary judgment and the grant of a motion to dismiss are reviewed de novo.
Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir. 2018); Betton v.
Belue, 942 F.3d 184, 190 (4th Cir. 2019).
II. Discussion
The Second Amendment provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be
9
infringed.” U.S. Const. amend. II. This “inherent,” “fundamental,” “pre-existing”
individual right is not limited to militia service. Dist. of Columbia v. Heller, 554 U.S. 570,
592–95, 628 (2008). Its core is “the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.” Id. at 635. So in Heller, the Court struck down a handgun
ban and a law requiring guns to be unloaded and locked within the home as violating the
core protection of the Second Amendment. Id. at 635–36. But in doing so, the Court made
clear that the rights protected by the Second Amendment are not “unlimited.” Id. at 626.
It did not “cast doubt on” “presumptively lawful regulatory measures,” such as
“longstanding prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Id. at 626–27, 627 n.26.
Several years later, the Court struck down a similar handgun ban in Chicago,
holding that the Second Amendment was incorporated against the states. McDonald v.
City of Chi., 561 U.S. 742, 750 (2010). It explained that while the original understanding
of the Second Amendment focused on opposing a tyrannical federal government with a
standing army, that fear eventually dissipated. Id. at 770–78; see also Heller, 554 U.S. at
599. Instead, around the time of the Civil War, Congress repeatedly voiced concern that
southern states were disarming abolitionists and freed slaves to harass and harm them.
McDonald, 561 U.S. at 772–77. These concerns permeated the drafting and ratification of
the Fourteenth Amendment, which reinforced the existing civil rights laws. Id. at 775.
Reviewing this history, the Court held that “it is clear that the Framers and ratifiers of the
10
Fourteenth Amendment counted the right to keep and bear arms among those fundamental
rights necessary to our system of ordered liberty.” Id. at 778.
But the Court has cautioned that it has not “undertake[n] an exhaustive historical
analysis [] of the full scope of the Second Amendment.” Heller, 554 U.S. at 626. As a
result, many questions remain, including what framework courts should use to analyze
Second Amendment claims. To fill that gap, most circuits, including our own, seem to
follow some variation of a two-part inquiry. United States v. Chester, 628 F.3d 673, 680
(4th Cir. 2010). 5 And so we apply that inquiry here. See United States v. Hosford, 843
F.3d 161, 165 (4th Cir. 2016) (holding that courts “generally engage in the . . . two-pronged
[Chester] analysis for facial Second Amendment challenges”).
The first step asks “whether the challenged law imposes a burden on conduct falling
within the scope of the Second Amendment’s guarantee.” Chester, 628 F.3d at 680. This
“historical inquiry seeks to determine whether the conduct at issue was understood to be
within the scope of the right at the time of ratification.” Id. The government bears the
burden of showing that the conduct was not covered by the Second Amendment. See id.at 681–82; see also Ezell v. City of Chi., 651 F.3d 684, 702–04 (7th Cir. 2011); Tyler v.
5
See Gould v. Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018); N.Y. State Rifle &
Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United States v. Marzzarella, 614
F.3d 85, 89 (3d Cir. 2010); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679
F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chi., 651 F.3d 684, 702–04 (7th Cir. 2011);
United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Reese, 627
F.3d 792, 800–01 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs,
788 F.3d 1318, 1322 (11th Cir. 2015); Heller v. Dist. of Columbia, 670 F.3d 1244, 1252
(D.C. Cir. 2011) (Heller II).
11
Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 688 (6th Cir. 2016). If the historical record
is silent or ambiguous, we assume the conduct is protected. Chester, 628 F.3d at 680–82.
If, however, the challenged law does not impose a burden on conduct falling within the
scope of the Second Amendment’s historically understood guarantee, that is the end of the
inquiry. Id. at 680.
But if the challenged law burdens Second Amendment rights, “we move to the
second step of applying an appropriate form of means-end scrutiny.” Id. Without
articulating the applicable standard for Second Amendment challenges, the Supreme Court
found that the handgun ban in Heller would fail any level of scrutiny that applies to
enumerated constitutional rights. 554 U.S. at 628–29. It did offer some guidance,
however, in rejecting a rational-basis test. Id. at 628 n.27. So at least some form of
heightened scrutiny that places the burden on the government must be employed. Chester,
628 F.3d at 680.
To determine which form of heightened scrutiny applies to Second Amendment
challenges, the Fourth Circuit has looked to the First Amendment. Kolbe v. Hogan, 849
F.3d 114, 133 (4th Cir. 2017) (en banc). Just as the First Amendment employs strict
scrutiny for content-based restrictions but intermediate scrutiny for time, place, and manner
regulations, the scrutiny in this context “depends on the nature of the conduct being
regulated and the degree to which the challenged law burdens the right.” Chester, 628 F.3d
at 682.
The Second Amendment’s “core protection” is “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Kolbe, 849 F.3d at 131
12
(quoting Heller, 554 U.S. at 634–35). When this right is “severely burden[ed],” we apply
the “demanding” strict scrutiny test, which requires the government to show that the
challenged law is “‘narrowly tailored to achieve a compelling governmental interest.’” Id.
at 133, 145 (quoting Abrams v. Johnson, 521 U.S. 74, 82 (1997)). But if the right is
burdened only on the margins, intermediate scrutiny applies. See United States v.
Masciandaro, 638 F.3d 458, 470–71 (4th Cir. 2011). And intermediate scrutiny in the
Second Amendment context has been described as requiring “a ‘reasonable fit’ between
the challenged regulation and a ‘substantial’ government objective.” Chester, 628 F.3d at
683 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).
Our inquiry into the challenged provisions’ facial validity changes, however, if we
find them to be presumptively valid based on Heller’s list of “presumptively lawful
regulatory measure[s].” United States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012); see
also Hosford, 843 F.3d at 165–67. 6 That list includes “longstanding prohibitions on the
possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, [and] laws imposing
conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–
27, 627 n.26; see Christopher M. Johnson, Second-Class: Heller, Age, and the Prodigal
Amendment, 117 Colum. L. Rev. 1585, 1600–03 (2017) (describing measures that
seemingly fall within Heller’s list). If a law falls within this list, we conduct a more
6
Though we follow this framework, one might question relying on the list in Heller
to carve out exceptions to the Second Amendment. See, e.g., Kanter v. Barr, 919 F.3d 437,
453–54 (7th Cir. 2019) (Barrett, J., dissenting) (rejecting reliance on the Heller list).
13
streamlined analysis. Chester, 628 F.3d at 679–80; Moore, 666 F.3d at 318; Hamilton v.
Pallozzi, 848 F.3d 614, 624 (4th Cir. 2017). This often effectively ends the inquiry and
upholds the law as facially valid. But not always. Hamilton, 848 F.3d at 624–25; United
States v. Pruess, 703 F.3d 242, 245–46 (4th Cir. 2012). So before turning to the full two-
part test our circuit has adopted, we begin with the presumptively lawful inquiry.
A. The challenged laws are not presumptively lawful
The government and amici argue that the challenged laws fall into two categories
on Heller’s presumptively valid list: conditions on commercial sales and longstanding
regulations. Both contentions are incorrect.
First, these laws are not “conditions and qualifications on the commercial sale of
arms.” Heller, 554 U.S. at 627. A condition or qualification on the sale of arms is a hoop
someone must jump through to sell a gun, such as obtaining a license, establishing a lawful
premise, or maintaining transfer records. See Hosford, 843 F.3d at 166. Here, though, the
restrictions operate as a total ban on buying a gun from a licensed dealer that has met the
required conditions and qualifications to sell arms. There is nothing a law-abiding 18- to
20-year-old can do to buy a handgun from a licensed dealer except wait until she turns 21.
The amici compare this case to one of our precedents, Hosford, 843 F.3d at 165–67.
There, we upheld a regulation requiring those who regularly sell firearms to obtain a
license. Id. at 167. That law regulated only those who wanted to sell guns commercially,
but it placed no restrictions on those seeking to buy guns. Id. at 166. We described the
licensing law as a “mere condition” on commercial sales that “affects only those who
regularly sell firearms, not owned for personal use, in the course of trade or business for
14
the principal purpose of profit.” Id. In doing so, we found that requiring regular sellers of
firearms to obtain a license was a limited condition on commercial sales. Id. (noting the
requirements for obtaining a license).
Hosford recognized that a law’s substance, not its form, determines whether it
qualifies as a condition on commercial sales. Id. (explaining that though the regulation
was “framed as a prohibition against unlicensed firearm dealing,” it was “in fact a
requirement that those who engage in the commercial sale of firearms obtain a license”).
We cited a district court case as an example of a commercial law that would be “so
prohibitive as to turn [a] condition or qualification into a functional prohibition”: a
Chicago ordinance that allowed firearm transfers only outside city limits. Id. (citing Ill.
Ass’n of Firearms Retailers v. City of Chi., 961 F. Supp. 2d 928, 938–939, 947 (N.D. Ill.
2014)). Similarly, in Ezell, the Seventh Circuit struck down a ban on firing ranges within
city limits because the ban was “not merely regulatory” but “a serious encroachment”
preventing “the ‘law-abiding, responsible citizens’ of Chicago from engaging in target
practice in the controlled environment of a firing range.” 651 F.3d at 708–09; see also
Ezell v. City of Chi., 846 F.3d 888, 894 (7th Cir. 2017) (Ezell II) (finding that a commercial
zoning and distancing law worked in tandem to functionally preclude any gun ranges, thus
“severely” restricting Second Amendment rights).
The nature of these functional bans is highlighted by Heller, where the Court struck
down a handgun possession ban and a law requiring legally held guns to be unloaded and
locked within the home. 554 U.S. at 635–36. As to the handgun possession ban, the Court
explained that “the American people have considered the handgun to be the quintessential
15
self-defense weapon” and concluded that the ban “amount[ed] to a prohibition on an entire
class of ‘arms.’” Id. at 628–29. Similarly, the Court discussed how the law requiring
legally held guns to be unloaded and locked within the home amounted to meaningless
firearm possession because it “ma[de] it impossible for citizens to use [the firearms] for
the core lawful purpose of self-defense.” Id. at 630. While it was still theoretically possible
to have a firearm, Heller recognized that the reality was a functional ban.
Here, the substance of the challenged laws dictates that they are a functional
prohibition on buyers, not a mere condition or qualification on sellers. They ban an entire
group of adult, law-abiding citizens from purchasing handguns from licensed dealers,
substantially burdening the group’s rights. The category of conditions and qualifications
on commercial sales referenced in Heller is limited, as Hosford highlights, to laws that
place conditions and qualifications on the seller, like licensing. It does not encompass a
ban on a class of people seeking to purchase handguns from a qualified seller.
The dissent argues that any restriction on a buyer is also a restriction on a seller and
vice versa. No doubt a restriction on buyers indirectly affects sellers by reducing demand.
But that cannot be enough. If that was enough, then a ban on possession by 18-to 20-year-
olds could qualify for this “exception” since that restriction on buyers also impacts the
commercial sale of firearms. Cf. United States v. Deeb, 175 F.3d 1163, 1167–68 & n.8
(9th Cir. 1999) (“It is clear to us that the word ‘sale’ contained in all of these statutes and
regulations refers only to sellers, not buyers.”). In fact, the ban in Heller could be justified
by blurring this divide. By the dissent’s reading, this “exception” functionally swallows
the Second Amendment. Cf. Marzzarella, 614 F.3d at 92 n.8.
16
Moreover, this restriction falls asymmetrically on buyers rather than sellers. While
the licensing regime in Hosford placed burdens on sellers with an indirect effect on buyers,
the restrictions here fall on the buyers and operate as a functional ban. Under these laws,
sellers lose a subset of customers but may still sell to anyone above 20. Those in the
restricted age range, however, can do nothing to purchase a handgun from a licensed
dealer. 7 And other options are not always readily available to many individuals. 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.
On the other hand, 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. Hosford, 843 F.3d at 169 (highlighting the benefits of pushing
customers to licensed dealers for safety and regulatory purposes). Not to mention that these
restrictions apply to ammunition as well. So the severity and difference in burdens shows
why the laws at issue operate as a functional ban on 18- to 20-year-olds rather than a
condition on the sale of firearms.
Second, some courts have found laws to be presumptively valid because similar
regulations could be described as “longstanding.” See, e.g., Heller II, 670 F.3d at 1253–
54; Drake v. Filko, 724 F.3d 426, 431–34 (3d Cir. 2013). The government and amici argue
that age restrictions for purchasing guns are longstanding because many states had similar
7
This contrasts with regulations that can be met through individual effort, like
requiring a training course. With a readily accessible course, an individual can meet that
“condition.” Here, a person can do nothing but wait until their 21st birthday.
17
laws in the late nineteenth and early twentieth centuries. See Nat’l Rifle Ass’n, 700 F.3d at
196–97, 203–04. We do not, however, read the word “longstanding” in Heller as a
standalone exception to the Second Amendment. Consistent with the text of Heller, this
Court has never employed that novel view. In our only case discussing the “longstanding”
requirement, we correctly did not treat it as its own exception. Hosford, 843 F.3d at 166.
We instead treated it as a potential limit on commercial conditions, requiring the law to be
both a commercial condition and longstanding to be presumptively valid. Id. As Hosford
recognized, the sentence in Heller makes clear that “longstanding” serves as a modifier of
part or all of the sentence, not as a freestanding category. 8 Heller’s historical, textual, and
structural analysis counsels against creating a freestanding category of laws exempt from
Second Amendment scrutiny based solely on how long similar laws have existed.
The laws are therefore not presumptively lawful either as commercial conditions or
longstanding laws. 9
8
The sentence in Heller says, “[N]othing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.” 554 U.S. at 626–27 (emphasis added). “[L]ongstanding”
modifies prohibitions on felons and the mentally ill. Perhaps it could also modify the other
categories. But it is not a separate category itself. That we are looking at the sentence
structure of dicta in a judicial opinion affirms the need for more guidance from the Supreme
Court. See Kanter, 919 F.3d at 453–54 (Barrett, J., dissenting) (“[J]udicial opinions are
not statutes, and we don’t dissect them word-by-word as if they were.”).
9
Even if the laws were presumptively valid, the presumption could be rebutted.
Binderup v. Att’y Gen. U.S. of Am., 836 F.3d 336, 350–51 (3d Cir. 2016) (en banc)
(plurality opinion) (holding that presumptions from Heller’s list may be rebuttable because
“[u]nless flagged as irrebuttable, presumptions are rebuttable”). For while we need not
18
B. Step one: 18- to 20-year-olds are protected by the Second Amendment
At step one of the Chester inquiry, we ask “whether the conduct at issue was
understood to be within the scope of the right at the time of ratification.” Chester, 628
F.3d at 680 (emphasis added) (citing Heller, 554 U.S. at 625). The government bears the
burden to show that the regulation clearly falls outside the scope of the Second
Amendment. See id. at 681–82; Ezell, 651 F.3d at 702–03; Tyler, 837 F.3d at 688. And in
the face of historical silence or ambiguity, we assume the conduct is protected. Chester,
628 F.3d at 680–82. At the very least, this inquiry requires us to consider text, structure,
history, and practice to reveal the original public meaning of the Second Amendment. See
Heller, 554 U.S. at 576–628. The relevant question is: What did the right to keep and bear
arms mean to the public at the time of ratification?
When evaluating the original understanding of the Second Amendment, 1791—the
year of ratification—is “the critical year for determining the amendment’s historical
meaning.” Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012) (citing McDonald, 561
U.S. at 765 & n.14). Sources near the time of ratification help us understand the original
public meaning of the Second Amendment. Those sources shed light on how language was
undertake a historical inquiry for every presumptively valid law, a challenger may still seek
to rebut the presumption with affirmative historical evidence. But it would be the
challenger’s burden to make that affirmative showing. So while historical silence or
ambiguity would typically mean that conduct is covered by the Second Amendment, see
Ezell, 651 F.3d at 702–03; Chester, 628 F.3d at 681–82, we would presume that conduct
regulated by a presumptively valid law falls outside the Second Amendment in the face of
silence or ambiguity, see Heller II, 670 F.3d at 1254–55 (upholding a handgun registration
scheme as presumptively valid after noting that they found “no basis in either the historical
record or the record of this case to rebut that presumption”).
19
understood and how similar laws were read at the time. But because language, laws, cases,
treatises, practices, and understandings change over time, the light provided dims as we
move further from ratification. Heller, 554 U.S. at 601–03, 614; Nat’l Rifle Ass’n of Am.,
Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 714 F.3d 334, 337, 339 (5th
Cir. 2013) (Jones, J., dissenting from denial of rehearing en banc).
One relevant source is state law, as various state statutes and constitutions illuminate
the pre-existing right embodied in the language of the Second Amendment. See Heller,
554 U.S. at 584–86, 600–03 (relying on state constitutions and statutes to clarify the
linguistic meaning of the Second Amendment). Indeed, the definitions and interpretive
tools that would have been used to understand the language of state laws would have also
been used by the public to understand the Constitution. John O. McGinnis & Michael B.
Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case
Against Construction, 103 Nw. U. L. Rev. 751, 769–70 (2009). State laws prove especially
helpful in determining who the public would have considered to be included in the
“militia.” This is especially true prior to ratification, as organized militias were creatures
of state law. 10
10
ARTICLES OF CONFEDERATION art. VI, § 4 (1777) (requiring that “every State [ ]
always keep up a well regulated and disciplined militia” but largely leaving governance to
the states); Parker v. Dist. of Columbia, 478 F.3d 370, 387–88 (D.C. Cir. 2007), aff’d sub
nom. Heller, 554 U.S. 570 (2008) (“[T]he existence of the militia preceded its organization
by Congress.”); David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights
of Young Adults, 43 S. ILL. U. L.J. 495, 590 (2019) (lack of uniformity or control over the
militia is part of the reason the Founders sought a stronger federal government).
20
In 1788, however, the Constitution granted the federal government the power to call
“forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions” and “provide for organizing, arming, and disciplining, the Militia.” See U.S.
Const. art. I, § 8, cl. 15, 16. And the Supreme Court has held that state militia laws were
preempted to the extent they conflicted with federal militia laws. Houston v. Moore, 18
U.S. (5 Wheat.) 1, 24 (1820); J. Norman Heath, Exposing the Second Amendment: Federal
Preemption of State Militia Legislation, 79 U. Det. Mercy L. Rev. 39, 43–47, 67 (2001).
So after 1788 federal law became more relevant to understanding the linguistic meaning of
the term “militia” as used in the Bill of Rights.
This is not to suggest that state militia laws became irrelevant, as the Constitution
still recognized important roles for the states in governing and defining their own militias. 11
Indeed, besides appointing officers, the states could pass laws governing their militias to
the extent they did not conflict with federal law and could freely control their militias when
11
See U.S. CONST. art. I, § 8, cl. 16 (acknowledging the role of state law in defining
the militia even when called by Congress by “reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress”); THE FEDERALIST No. 46, at 321 (James Madison) (J.
Cooke ed., 1961) (extolling the virtue of “subordinate governments to which the people
are attached, and by which the militia officers are appointed”); David Yassky, The Second
Amendment: Structure, History, and Constitutional Change, 99 MICH. L. REV. 588, 606–
07 (2000) (finding that the militia mainly remained a state institution); cf. Robert Leider,
Federalism and the Military Power of the United States, 73 VAND. L. REV. 989, 1004–07,
1013–16 (2020) (finding that the federal role in controlling the militia was much greater
but states still had some concurrent authority and control when the militia was not called
by the federal government).
21
they were not called on by the federal government, which was almost always the case. 12
And the public would be most familiar with the composition of their own state militia. So
both federal and state laws inform the linguistic meaning of “militia” near the time of
ratification.
But state laws are less illuminating the further one moves from ratification. This is,
in part, because the states initially were not restricted by the Bill of Rights. Barron v. City
of Balt., 32 U.S. (7 Pet.) 243, 247–48 (1833). And as time passes, states may diverge from
a common understanding and experiment, and language is more likely to evolve. New
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (praising
12
In Houston v. Moore, 18 U.S. 1, 3–4 (1820), a militiaman failed to attend a federal
muster in Pennsylvania and was convicted by a military tribunal convened under the
authority of Pennsylvania. Houston argued that federal law preempted state law on this
issue. Id. The Court agreed that federal militia laws could preempt state laws but found
that the militia law did not preclude concurrent jurisdiction in that case. Id. at 29–32. In
coming to that conclusion, the Court acknowledged the importance of state law for the
militias and emphasized that in the absence of a conflict with federal law, state law governs:
It may be admitted at once, that the militia belong to the States, respectively,
in which they are enrolled, and that they are subject, both in their civil and
military capacities, to the jurisdiction and laws of such State, except so far as
those laws are controlled by acts of Congress constitutionally made.
Congress has power to provide for organizing, arming, and disciplining the
militia; and it is presumable, that the framers of the constitution contemplated
a full exercise of all these powers. Nevertheless, if Congress had declined to
exercise them, it was competent to the State governments to provide for
organizing, arming, and disciplining their respective militia, in such manner
as they might think proper.
Id. at 21. And “militia members served their states far more than they served the national
government,” leaving most control in the hands of the states. Michael J. Golden, The
Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of
Independent State Militias, 21 WM. & MARY BILL RTS. J. 1021, 1033 (2013).
22
states as laboratories of democracy); Thomas R. Lee et al., Corpus Linguistics & Original
Public Meaning: A New Tool to Make Originalism More Empirical, 126 Yale L. J. Forum
20, 22 (2016). The Heller Court recognized this, as it looked to state constitutions and
laws at the time of ratification to determine the Second Amendment’s public meaning but
noted that post-Civil War sources “do not provide as much insight into its original meaning
as earlier sources.” 554 U.S. at 614; Nat’l Rifle Ass’n, 714 F.3d at 337, 339 & n.5 (Jones,
J., dissenting) (discounting late nineteenth- and early twentieth-century sources). Indeed,
the Supreme Court has made clear that Heller relied on nineteenth-century sources “as
mere confirmation of what the Court thought had already been established” by Founding-
era sources. Gamble v. United States, 139 S. Ct. 1960, 1975–76 (2019). To the extent later
sources conflict with evidence closer to ratification, their relevance is limited.
Evidence about the ratification of the Fourteenth Amendment also highlights the
waning usefulness of state laws. While the Founders sought to oppose a tyrannical federal
government, the self-defense of freed Blacks was central to the passage of the Fourteenth
Amendment. Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L.
Rev. 145, 176 (2008). And McDonald reviewed pre- and post-Civil-War-era laws to show
that a right to self-defense was part of the Second Amendment that was intended to be
incorporated. 561 U.S. at 770–78. But in doing so, the Supreme Court’s review focused
on federal laws, such as the Freedmen’s Bureau Act of 1866, and debates in Congress. Id.at 773–77. Many of those debates focused on legislators’ alarm about southern laws and
militias being employed to disarm recently freed slaves. Id. at 772, 775–76. The
ineffectiveness of federal law at preventing southern states from disarming free people
23
motivated Congress to enact the Fourteenth Amendment to stop states from violating the
right to keep and bear arms. Id. So we should hesitate to look to Civil-War-era state laws
that restricted the right to bear arms as evidence of the scope of the Second Amendment
right at the time of the Founding.
Looking through this historical lens to the text and structure of the Constitution
reveals that 18- to 20-year-olds have Second Amendment rights. Virtually every other
constitutional right applies whatever the age. And the Second Amendment is no different.
The militia laws in force at the time of ratification uniformly required those 18 and older
to join the militia and bring their own arms. While some historical restrictions existed,
none support finding that 18-year-olds lack rights under the Second Amendment.
1. The text and structure of the Constitution
As with any matter of constitutional interpretation, “our inquiry begins with the text
of the Constitution.” Altman v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003). Both
the text and structure of the Second Amendment, along with its place within the
Constitution as a whole, reveal that it protects 18- to 20-year-olds. First, nothing in the
text of the Second Amendment limits its application by age. Second, the most analogous
rights to the Second Amendment, those in the First and Fourth Amendments, similarly
contain no age limits. Third, most other constitutional rights are not age limited. And
fourth, the few rights that may not apply to those under 18 or that change by age are not
analogous to the Second Amendment, and most of those rights become applicable at age
18, not 21.
24
As to the first point, while various parts of the Constitution include age
requirements, the Second Amendment does not. The Founders set age requirements for
Congress and the Presidency, but they did not limit any rights protected by the Bill of
Rights to those of a certain age. See U.S. Const. art. I, § 2 (age 25 for the House); id. art.
I, § 3 (age 30 for the Senate); id. art. II, § 1 (age 35 for the President); cf. id. amend. XXVI
(setting voting age at 18). In other words, 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.
Turning to the second point, the two rights most like the Second Amendment apply
to all people regardless of age. The Second Amendment refers to the “right of the people,”
which is a phrase also used in the First and Fourth Amendments to denote an individual
right. Heller, 554 U.S. at 579. Like the Second Amendment, both the First and Fourth
Amendments codify a pre-existing, fundamental, inalienable individual right. Id. at 592.
The Supreme Court and the Fourth Circuit have used First Amendment law as a
guidepost for interpreting the Second Amendment. Heller, 554 U.S. at 591, 595, 626;
Kolbe, 849 F.3d at 133; Chester, 628 F.3d at 678, 682. And the First Amendment applies
to all persons, even those under 18. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506 (1969) (free speech); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943) (free exercise). To be sure, minors’ First Amendment rights are qualified to
some degree, see Tinker, 393 U.S. at 506, 513, but those qualifiers do not eliminate the
rights altogether, for time, place, and manner regulations are a part of everyone’s First
Amendment rights regardless of age, see Ward v. Rock Against Racism, 491 U.S. 781, 791
25
(1989). Instead, Tinker presumes minors have similar rights as adults because they do not
“shed their constitutional rights to freedom of speech or expression at the schoolhouse
gate.” 393 U.S. at 506; accord Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 805 (2011)
(enjoining a California law prohibiting the sale of violent video games to those under 18
without a guardian’s permission as a violation of the First Amendment).
The logic of Tinker has also been applied in the Fourth Amendment context. It is
“indisputable” that the Fourth Amendment protects the rights of all persons, including
minors. New Jersey v. T.L.O., 469 U.S. 325, 334 (1985). But like the First Amendment,
the context matters in determining the scope of the right. See id. at 337–38 (explaining that
minors’ expectations of privacy differ based on the item searched and whether the search
occurs on or off school property). But the existence of the right is not limited by age.
To be clear, in considering analogous rights from the First and Fourth Amendments
and their application to minors, we are not suggesting that the protections of the Second
Amendment necessarily extend in full force to those under 18. 13 Nor do we suggest that
minors have an unfettered right to purchase firearms. We merely emphasize that the First
and Fourth Amendments’ protection of “the people,” including those under 18, confirms
that “the people” protected by the Second Amendment includes at least those 18 and older.
As for the third point, less-analogous rights, such as the enumerated rights to due
process and equal protection, also apply to all persons, including minors. See, e.g., Brown
13
Indeed, we do not address the Second Amendment’s application to those under
18 at all. As discussed in this section, while other constitutional rights apply by at least
age 18, some have age variation. And the history of the right to keep and bear arms,
including militia laws, may well permit drawing the line at 18.
26
v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (Do separate-but-equal schools
“deprive the children of the minority group of equal educational opportunities? We believe
that [they] do[].”); Goss v. Lopez, 419 U.S. 565, 574 (1975) (due process). Newer
unenumerated rights do as well. See, e.g., Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52, 74 (1976) (enjoining a law requiring a minor to obtain parental consent to get
an abortion, declaring that “[c]onstitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority”).
And while the Eighth Amendment applies differently based on age, it does so by
providing greater constitutional protection to those under 18. In Roper v. Simmons, 543
U.S. 551, 574 (2005), the Supreme Court held that the Eighth Amendment’s application to
minors prohibited the use of the death penalty for those who were under 18 at the time they
committed the offense. The Court drew the line at that age and has held to it. For “[t]he
age of 18 is the point where society draws the line for many purposes between childhood
and adulthood. It is . . . the age at which the line for death eligibility ought to rest.” Id.Since Roper, no federal court has expanded this logic to provide greater protection to those
over 18. Similarly, no federal court has ever held that one loses protection under the Eighth
Amendment—or somehow escapes its applicability altogether—by reaching the age of
majority.
Finally, there are some rights that do not apply to those under 18. But those rights
also suggest that 18-year-olds are protected by the Second Amendment because the Court
has drawn the line for their application at age 18, not 21. The jury trial right does not apply
to juvenile proceedings, McKeiver v. Pennsylvania, 403 U.S. 528, 545, 550–51 (1971), but
27
many state laws end the jurisdiction of juvenile courts at age 17, with a few at age 16 and
just recently one at age 18, Anne Teigen, Juvenile Age of Jurisdiction and Transfer to Adult
Court Laws, Nat’l Conf. St. Legis. (April 8, 2021), (saved as ECF opinion attachment).
And many view the protections of juvenile proceedings for minors as better and want to
increase the age at which they apply. See McKeiver, 403 U.S. at 545, 550. The other
relevant right is voting, which the Constitution explicitly limits to those 18 and older. U.S.
Const. amend. XXVI.
There are only two unenumerated rights states may restrict for those under a certain
age: marriage and sex. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (finding a right
for sexual autonomy but differentiating minors); Obergefell v. Hodges, 576 U.S. 644, 675
(2015) (holding that the right to marry is fundamental). But even still, the legal age of
marriage in all but two states is 18, and even in those two states it appears that one can
marry at 18 with parental consent. See Miss. Code Ann. § 93-1-5; Neb. Rev. Stat. §§ 42-
105, 43-2101. For sex, the oldest state-imposed age of consent (the age at which an
individual can legally consent to sexual intercourse) is 18. 14 So even these rights apply to
some degree to 18-, 19-, and 20-year-olds.
But whatever their import, the treatment of these rights cannot overcome the strong
evidence that the Second Amendment right vests at least at age 18. Indeed, it would be
odd to treat the Second Amendment like marriage and sex rather than contemporaneously
14
Office of the Assistant Secretary for Planning and Evaluation, Statutory Rape: A
Guide to State Laws and Reporting Requirements. Sexual Intercourse with Minors, U.S.
DEP’T OF HEALTH & HUMAN SERVS. (Dec. 15, 2004), (saved as ECF opinion attachment);
see, e.g., TENN. CODE ANN. § 39-13-506 (age 18); CAL. PENAL CODE § 261.5 (age 18).
28
ratified rights such as the First and Fourth Amendments that have been described as
fundamental pre-existing rights analogous to the Second Amendment. Heller, 554 U.S. at
592.
There are many things that minors and even those under 21 cannot do. See Ent.
Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot
drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will).
But none of those restrictions implicate constitutional rights, so states have great leeway to
regulate those activities under their general police powers. And while the Court has
“recognized that the State has somewhat broader authority to regulate the activities of
children than of adults,” that does not mean that children necessarily have different rights
than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the
states’ interests are stronger with regard to minors so restrictions may more easily pass
constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude
that 18- to 20-year-olds have no Second Amendment rights when almost every other
constitutional right affords them protection. This conclusion becomes inescapable when
we consider the history.
2. Founding-era militia laws
The historical evidence from the Founding shows that 18- to 20-year-olds are
protected by the Second Amendment. Founding-era militia laws provide powerful
historical evidence. Near the time of ratification, the federal government and every state
required 18-year-old men to be part of the militia and bring their own arms. See Heller,
29
554 U.S. at 596, 627. This evidences the Founding public’s understanding that the
“militia,” and thus the Second Amendment, encompassed 18-year-olds.
These Founding-era militia laws illuminate the broader individual right enshrined
in the Second Amendment. Id. at 600–03. The phrase “[a] well regulated Militia, being
necessary to the security of a free State” augments the individual “right of the people” and
helps us understand its scope and resolve ambiguities. Id. at 577–78, 595–99.
The civic purpose of preserving our nation’s security sits at the Second
Amendment’s core. Id. at 597–98. Being part of the militia, having a firearm, and being
prepared for action were vital to protecting the new Republic. This civic purpose addressed
internal threats because there was no police force. So members of the militia “served
various law enforcement functions,” including protection “against private thugs, such as
pirates and renegade Indians, as well as against more organized threats.” Amar, supra, at
164. For this reason, many states required citizens to be armed and keep firearms at home
even outside militia service. 15 Indeed, these practices have deep roots in the common-law
15
Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep
Arms in Early America: The Legal Context of the Second Amendment, 25 L. & HIST. REV.
139, 145–48 (2007); Clayton E. Cramer, Colonial Firearm Regulation, 16 J. ON FIREARMS
& PUB. POL’Y 1, 1–15 (2004); Young v. State, 992 F.3d 765, 795–96 (9th Cir. 2021) (en
banc); Heller, 554 U.S. at 601 (citing 19 COLONIAL RECORDS OF THE STATE OF GEORGIA
137–39 (A. Candler ed., 1911 (pt. 1)) (1770), for the idea that some states required citizens
to take guns to church); see, e.g., A Supplementary Act to the Act Entitled, an Act for
Better Settling and Regulating the Militia of this Colony of New Jersey § 4 (1757), in ACTS
OF THE GENERAL ASSEMBLY OF THE PROVINCE OF NEW JERSEY 139, 141 (1761) (requiring
individuals to keep firearms in their homes); An Act for the Better Security of this Province
Against the Insurrections and Other Wicked Attempts of Negroes and Other Slaves § 1
(1747), in STATUTES AT LARGE OF SOUTH CAROLINA 417, 417–19 (1836) (requiring guns
at church due to a fear of slave uprisings); NEW HAVEN’S SETTLING IN NEW ENGLAND AND
30
doctrines of hue and cry and the posse comitatus, where privately armed citizens would be
called to respond to crimes or other public emergencies. 16
Militias were also important to repel invasions while reducing the need for the
standing army feared at the time of the Founding. Heller, 554 U.S. at 597–98; The
SOME LAWS FOR GOVERNMENT 64 (London, C. J. Hoadly ed., 1656) (requiring constant
readiness and arms for patrol); An Act for Establishing a Militia Within this Government
(1742), in LAWS OF THE GOVERNMENT OF NEW-CASTLE, KENT AND SUSSEX UPON
DELAWARE 171, 171 (1741) (requiring the keeping of arms and ammunition by
individuals’ side for the duration of the act); Proceedings of the Virginia Assembly (1619),
in NARRATIVES OF EARLY VIRGINIA 245, 273 (Lyon Gardiner Tyler ed., 1907) (all must
be armed in church); Records of the General and Particular Courts (1643), in THE PUBLIC
RECORDS OF THE COLONY OF CONNECTICUT 1, 95 (1850) (requiring guns at public
meetings and to travel because of the threat of Native Americans); Proceedings of the
Council of Maryland (1642), in 3 ARCHIVES OF MARYLAND 45, 103 (1885) (requiring guns
in church and to respond to alarms); Laws of the Colony of New Plymouth (1657), in THE
COMPACT WITH THE CHARTER AND LAWS OF THE COLONY OF NEW PLYMOUTH 28, 102
(1836) (requiring guns in church seasonally); The Colony Records (1636), in 1 RECORDS
OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 71,
190 (1853) (requiring those age 18 and older to bring guns to public meetings and to travel);
Newport Records (1639), in 1 RECORDS OF THE COLONY OF RHODE ISLAND AND
PROVIDENCE PLANTATIONS IN NEW ENGLAND 87, 94 (1856) (requiring guns for public
meetings and travel).
16
See David B. Kopel, The Posse Comitatus and the Office of Sheriff: Armed
Citizens Summoned to the Aid of Law Enforcement, 104 J. CRIM. L. & CRIMINOLOGY 761,
788–805 (2014); Brittany Occhipinti, We the Militia of the United States of America: A
Reanalysis of the Second Amendment, 53 WILLAMETTE L. REV. 431, 444–46 (2017); see
also James Wilson, Lectures on Law, in 2 COLLECTED WORKS OF JAMES WILSON 1017
(Kermit L. Hall & Mark David Hall eds., 2007) (“No man above fifteen and under seventy
years of age, ecclesiastical or temporal, is exempted from” posse comitatus service.); 3
JOHN ADAMS, LEGAL PAPERS OF JOHN ADAMS 285 (L. Kinvin Wroth & Hiller B. Zobel
eds., 1965) (During the trial of the soldiers responsible for the Boston Massacre, the court’s
charge to the jury included the traditional duty of private persons to respond to the hue and
cry and to carry arms: “It is the duty of all persons (except women, decrepit persons, and
infants under fifteen) to aid and assist the peace officers to suppress riots &c. when called
upon to do it. They may take with them such weapons as are necessary to enable them
effectually to do it.”).
31
Federalist No. 29, at 182–87 (Alexander Hamilton) (J. Cooke ed., 1961); The Federalist
No. 46, at 321 (James Madison). 17 The third purpose of the militia is closely related: to
act as a check on a tyrannical government. 18 Many feared that a standing army would be
used to disarm and oppress the people. 19 The militia democratized self-defense and gave
the people an important check on and voice in government action. 20 In order to serve these
purposes, a wide swath of the public had to be armed.
As George Mason observed, “[T]o disarm the people; that [is] the best and most
effectual way to enslave them.” 3 Jonathan Elliot, The Debates in the Several State
17
A militia was first established by King Alfred in the ninth century to protect
communities from Danish incursions. Kopel, supra note 16, at 771–72; Occhipinti, supra
note 16, at 444–46. The public was called upon to bring their own arms in defense of their
communities during an emergency. Occhipinti, supra note 16, at 444; see, e.g., Assize of
Arms (1181), reprinted in 1 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 85 (Carl
Stephenson & Frederick George Marcham eds. & trans., 1937) (requiring all freemen to
possess arms in defense of the nation). The militia and related posse comitatus were vital
to the American Revolution, as a privately armed and trained population could respond
quickly to British incursions within their communities. See Kopel, supra note 16, at 792–
95; Golden, supra note 12, at 1030, 1039–41.
18
Heller, 554 U.S. at 597–98, 608–09; Ronald S. Resnick, Private Arms as the
Palladium of Liberty: The Meaning of the Second Amendment, 77 U. DET. MERCY L. REV.
1, 40–41 (1999); Occhipinti, supra note 16, at 460–62; Golden, supra note 12, at 1029,
1047–50, 1063–67.
United States v. Miller, 307 U.S. 174, 179 (1939); Golden, supra note 12, at 1029,
19
1047–50; Resnick, supra note 18, at 29; Yassky, supra note 11, at 597.
20
Occhipinti, supra note 16, at 444–46; Golden, supra note 12, at 1029, 1047–50;
see also JOEL BARLOW, ADVICE TO THE PRIVILEGED ORDERS IN THE SEVERAL STATES OF
EUROPE RESULTING FROM THE NECESSITY AND PROPRIETY OF A GENERAL REVOLUTION
IN THE PRINCIPLE OF GOVERNMENT 24–25 (3d ed. 1793) (noting that Europeans did not
trust their people with arms because they saw arms “as a mark of an uncivilized people,
extremely dangerous to a well ordered society” but because Americans were their own
sovereign, “the people are civilized, that they are with safety armed”).
32
Conventions on the Adoption of the Federal Constitution 380 (1863). Hamilton noted “[i]f
the representatives of the people betray their constituents, there is then no resource left but
in the exertion of that original right of self-defence, which is paramount to all positive
forms of government.” The Federalist No. 28, at 178 (Alexander Hamilton) (J. Cooke ed.,
1961); see also 3 Joseph Story, Commentaries on the Constitution of the United States 746
(1833) (calling the right to keep and bear arms “a strong moral check against the usurpation
and arbitrary power of rulers”). Thus, as Patrick Henry concluded, the people must
“[g]uard with jealous attention the public liberty. Suspect every one who approaches that
jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up
that force, you are inevitably ruined.” Elliot, supra, at 45. So “[t]he great object is, that
every man be armed . . . . Every one who is able may have a gun.” Id. at 386.
Madison and other Founders often explained how the militia was key to safety and
defense broadly. To serve those functions, and to avoid becoming a standing army,
individuals needed to be privately armed. Indeed, one of the “advantage[s]” that Madison
thought “Americans possess over the people of almost every other nation” was the
“advantage of being armed.” The Federalist No. 46, at 321 (James Madison).
In public discourse, Madison contrasted this American advantage of an armed
citizenry with Europe, where governments were “afraid to trust the people with arms.” Id.
at 322. For European governments recognized an armed citizenry could not be conquered
by the largest standing army that could be supported. Id. Indeed, the American Revolution
proved this very point, as American militias could not be conquered by British regulars.
Id. at 321. If European powers permitted an armed citizenry and local governments that
33
appointed militia officers, then “the throne of every tyranny in Europe would be speedily
overturned, in spite of the legions which surround it.” Id. at 322. For Madison, this
combination in America—the “advantage of being armed” alongside “the existence of
subordinate governments, to which the people are attached and by which the militia officers
are appointed”—formed “a barrier” against tyranny. Id. at 321–22. And the Constitution
protected both advantages to check arbitrary power: Its structural design protected local
governments separate from the federal government and the Second Amendment protected
private citizens’ right to privately keep and bear arms.
This civic purpose reflected the central belief that people voluntarily created the
state to protect their own rights from others. 21 And one of those rights was self-
preservation, which citizens could assert individually in self-defense. 22 The privately
armed populace furthered these interconnected rights and duties at the core of the state and
21
1 WILLIAM BLACKSTONE, COMMENTARIES 123–25, 130 (St. G. Tucker ed., 1803);
M. de Montesquieu, The Spirit of the Laws bk I, pp. 4–6, bk XXVI, pp. 211 & 231, in THE
COMPLETE WORKS OF M. DE MONTESQUIEU (London: T. Evans 1777); John Locke, TWO
TREATISES OF GOVERNMENT 129–30 (Haffner Pub. 1947) (1694); Thomas Hobbes,
LEVIATHAN ch. XIII–XIV (London, George Routledge & Sons ed., 1894) (1651); see also
Kopel, supra note 16, at 826; Don B. Kates Jr., The Second Amendment and the Ideology
of Self-Protection, 265 CONST. COMMENT. 87, 89–92, 101–04 (1992).
22
Hobbes, supra note 21, at ch. XIII–XIV; Brannon P. Denning, Palladium of
Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth
Century, 21 OKLA. CITY U. L. REV. 191, 207 (1996) (“[T]he Founders believed that the
right to arms was a necessary ingredient of the moral duty of self-defense.” (quoting Kates,
supra note 21, at 91)).
34
the Second Amendment: defense of oneself and one’s community. See Heller, 554 U.S.
at 577–78. 23
So while the individual right of self-defense was “the central component” of the
Second Amendment, the civic purpose “was codified” based on the fear that a tyrannical
government would eliminate the civically minded militia. Id. at 597–99. Both reflected
the pre-existing right of self-defense that the Founders valued as the core purpose of the
state. “In the Founders’ world, individual self-protection and community defense were not
wholly separate spheres.” Amar, supra, at 164. 24
The relationship between the narrower civic purpose and the broader individual
right provides us one way to understand the scope of the individual right. The individual
right belongs to “the people,” which “unambiguously refers to all members of the political
community.” Heller, 554 U.S. at 580. The “militia,” on the other hand, is “a subset of ‘the
people’—those who were male, able bodied, and within a certain age range.” Id. Those
excluded from the militia were not excluded from the Second Amendment, but those
23
Kopel, supra note 16, at 826; Occhipinti, supra note 16, at 457–58; Golden, supra
note 12, at 1024.
24
Indeed, some militias were voluntary and used private arms, such as privateers
protecting merchants with private battleships during the 1798–1800 Quasi-War between
the United States and France. See An Act to Authorize the Defence of the Merchant
Vessels of the United States Against French Depredations, ch. 60, §§ 1–2, 1 Stat. 572, 572
(1798) (authorizing private ships to resist hostilities from French ships, capture them in
return, and receive a portion of the salvage); An Act Further to Protect the Commerce of
the United States, ch. 68, § 2, 1 Stat. 578, 579 (1798) (allowing commissioned private ships
to capture armed French ships to the same extent as the Navy). See generally Alexander
Tabarrok & Alex Nowrasteh, Privateers! Their History and Future, FLETCHER SECURITY
REV., Winter 2015, at 55; Golden, supra note 12, at 1030, 1063–65. The civic and
individual purposes could and did reinforce each other.
35
included in the militia were surely covered by the Second Amendment. So because the
militia is a subset of “the people,” those in the militia share the same rights as “the people.”
With this in mind, we look to militia laws in effect at the time of ratification to
determine how the public at that time would have understood the word “militia.” Those
who were obligated to serve in the militia and bring their own arms fall unambiguously
within the original public meaning of “the people” who had a right “to keep and bear
Arms.”
a. Militia laws at the time of the Founding show that 18-year-
olds have Second Amendment rights
“Men trained to Arms from their Infancy, and animated by the Love of Liberty, will
afford neither a cheap or easy Conquest.” 25
Every militia law near the time of ratification required 18-year-olds to be part of the
militia and bring their own arms. Around the time the Second Amendment was ratified in
1791, Congress began debating invoking its power under the Militia Clauses to better
organize the militias for federal use in emergencies. U.S. Const. art. I, § 8, cls. 15–16. The
effort was pushed by Secretary of War Henry Knox, who argued to Congress that while
the “military age has generally commenced at sixteen,” the age for the federal select militia
should be set at 18 because “the youth of sixteen do not commonly attain such a degree of
robust strength as to enable them to sustain without injury the hardships incident to the
field.” 2 Annals of Cong. 2088, 2092, 2099 (1790). One of the first rejected proposals
25
2 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 169 (1905)
(Continental Congress’s address to the inhabitants of Great Britain in 1775).
36
suggested that the federal government would arm everyone, but this drew sharp rebukes,
such as Representative Wadsworth arguing “their parents would rather give them guns of
their own, than let them take others from the U.S. which were liable to be taken away at
the very moment they were most wanted.” 14 Documentary History of the First Federal
Congress: Debates in the House of Representatives, Third Session: December 1790–March
1791, at 62 (1995). This proposal raised the concern that any check on tyranny could be
undermined by federal control of the militia’s arms. In the end, Congress settled on the
first federal Militia Act in 1792. That Act required “each and every free able-bodied white
male citizen of the respective states, resident therein, who is or shall be of the age of
eighteen years, and under the age of forty-five years (except as is herein after excepted)
shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, ch. 33, § 1,
1 Stat. 271, 271 (emphasis added). The Act also required that “every citizen so enrolled
and notified, shall, within six months thereafter, provide himself” with a firearm and
ammunition. Id. 26
26
“That every citizen so enrolled and notified, shall, within six months thereafter,
provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare
flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four
cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper
quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder-horn,
twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall
appear, so armed, accoutred and provided, when called out to exercise, or into service.”
Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, 271. This act was superseded by the Act of
February 28, 1795, 1 Stat. 424, which kept the same substantive provisions but made the
President’s authority to call the militia permanent.
37
State laws also help us understand the original public meaning of “militia” because,
as the Constitution recognizes, many militias were defined by state laws. See U.S. Const.
art. I, § 8, cl. 16. And those state laws only further prove the point.
Before ratification, when militias were solely defined by state law, most colonies
and states set the age for militia enlistment at 16. 27 Right after ratification, when federal
law set the age at 18, every state also set their militia age at 18. See Appendix 2. Like the
federal Militia Act, these state militia laws required enrolled citizens, including 18-year-
olds, to bring their own firearms and ammunition either explicitly or as a general
background principle. 28 Generally firearms were owned privately and kept by the members
27
J.A. 303–05; Cramer, supra note 15, at 2–10. While not every state set its militia
enlistment age at 16 before ratification and some fluctuated, no state appears to have set its
age higher than 18 in decades preceding ratification. See Appendix 1.
28
Every militia act around the time of ratification required enlistees to bring their
own equipment, including a rifle or musket. As the Supreme Court has said, “the Militia
comprised all males physically capable of acting in concert for the common defense. ‘A
body of citizens enrolled for military discipline.’ . . . And further, that ordinarily when
called for service these men were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” Miller, 307 U.S. at 179 (emphasis added); see
id. at 179–82 (citing some of the same militia laws and explaining that “as in England, the
militia system was based on the principle of the assize of arms. This implied the general
obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to
cooperate in the work of defence,” and noting that the colonies enacted laws “intended to
insure the possession of arms and ammunition by all who were subject to military service”
(quoting 1 OSGOOD, THE AMERICAN COLONIES IN THE 17TH CENTURY, ch. XIII)); see also,
e.g., An Act to Amend & Reduce into One Act, the Several Laws for Regulating and
Disciplining the Militia, and Guarding Against Invasions & Insurrections, ch. 1, § 3 (1785),
in 12 WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL
THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR
1619, at 9, 12 (1823) (cited by Miller and requiring personal arms); An Act to Organize
the Militia of this State § 10 (1794), in AT THE GENERAL ASSEMBLY OF THE GOVERNOR
AND COMPANY OF THE STATE OF RHODE-ISLAND AND PROVIDENCE-PLANTATIONS, BEGUN
38
of the militia in their homes as the government did not provide or keep the guns unless the
citizen was too poor to afford one. 29 That 18-year-olds had to be part of the militia and
bring their own arms establishes that 18-year-olds were included among “the people” who
enjoyed the Second Amendment right to keep and bear arms. See Heller, 554 U.S. at 580.
Many of those in the militia were quite young. As the Founder Tench Coxe wrote,
“the powers of the sword are in the hands of the yeomanry of America from sixteen to
AND HOLDEN BY ADJOURNMENT AT EAST-GREENWICH, WITHIN AND FOR THE STATE
AFORESAID, ON THE LAST MONDAY IN MARCH, IN THE YEAR OF OUR LORD ONE
THOUSAND SEVEN HUNDRED AND NINETY-FOUR, AND OF INDEPENDENCE THE
EIGHTEENTH 14, 15, 21–22 (1794) (requiring those enlisted in Rhode Island to bring
firearms and ammunition); An Act for the Regulation of the Militia of the Commonwealth
of Pennsylvania §§ 2, 5 (1793), in THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682
TO 1801, at 454, 456–57 (1909) (same requirement for all except those under 21 during
peacetime). And it was generally understood as a background principle that enlistees had
to provide their own weapons unless they were too poor to do so. See Churchill, supra
note 15, at 147 (concluding that those eligible for militia duty generally had to bring their
own guns); Cramer, supra note 15, at 2 (“[A]lmost all colonies required white adult men
to possess firearms and ammunition” and “[s]ome statutes were explicit that militiamen
were to keep their guns at home; others imply the requirement, by specifying fines for
failing to bring guns to muster or church.”); James Lindgren & Justin L. Heather, Counting
Guns in Early America, 43 WM. & MARY L. REV. 1777, 1782 (2002) (“[G]uns were
required by law to be supplied by adult males as part of their militia service.”).
Some laws provided by the government also make this point. A few laws exempted
those under 21 from serving in the militia during peacetime. But those laws still required
those enrolled to bring their own firearm. See, e.g., An Act to Establish an Uniform Militia
Throughout this State §§ 1, 4, in LAWS OF THE STATE OF DELAWARE 123, 123, 125–26
(1807). Similarly, later state laws that held parents liable for a minor’s fees and equipment
still required minors to bring their own firearm and ammunition; the laws just mandated
that the minor’s parents provide his firearm or pay a fee if the minor could not afford a gun.
J.A. 298–301; see, e.g., An Act, for Regulating and Governing the Militia of this State § 15
(1797), in 2 THE LAWS OF THE STATE OF VERMONT, DIGESTED AND COMPILED: INCLUDING
THE DECLARATION OF INDEPENDENCE, THE CONSTITUTION OF THE UNITED STATES, AND
OF THIS STATE 122, 131–32 (1808).
29
Churchill, supra note 15, at 141–42, 145–47; Cramer, supra note 15, at 24–30.
39
sixty . . . . Their swords . . . are the birthright of an American.” Tench Coxe, A
Pennsylvanian, No. 3, Pa. Gazette, Feb. 20, 1788, at 22. Because the individual right is
broader than the Second Amendment’s civic purpose, those required to serve in the militia
and bring arms would most assuredly have been among “the people” who possessed the
right. See Heller, 554 U.S. at 579–81. And the indisputable historical evidence establishes
that 18-year-olds had to join the militia and bring their own firearms. So those 18 and older
would have been understood to be covered by the Second Amendment at the Founding.
b. The militia laws cited by the government do not undermine
the conclusion that 18-year-olds are protected
Despite the overwhelming evidence that federal and state militia laws around the
Founding required those 18 and older to serve in the militia with their own firearm, the
government suggests that more specific militia exclusions and requirements undermine the
general laws. But none of the laws it cites undermine the Founding-era evidence that those
older than 18 have Second Amendment rights.
In the decades after ratification, several states enacted laws that at times raised the
age for mandatory militia service to 21. But even if 18-year-olds were not part of the
compulsory militia, they were not necessarily excluded either from service in the militia or
the Second Amendment’s protection. For, once again, the militia is but a subset of those
with Second Amendment rights. Heller, 554 U.S. at 580. For example, most militia laws
did not require those over a certain age to serve in the militia, but we would not suggest
that those over that age lack any Second Amendment rights. Militia laws are helpful
because they provide a baseline for determining the relevant political community that
40
enjoyed Second Amendment rights. They support the affirmative conclusion that 18-year-
olds are protected by the Second Amendment. But even if history were less clear, 18-year-
olds would not necessarily be excluded from the Second Amendment’s protections. 30
Further, the substance and timeline of those laws fail to aid the government. The
law closest to ratification cited by the government was enacted by Pennsylvania in 1793.
That law, like all the militia laws at the Founding, required 18-year-olds to join the
militia. 31 It only exempted those under 21 from active militia service during times of peace.
The next closest law to ratification comes from Delaware in 1807. It also required 18-year-
olds to be enrolled in the militia, only exempting those under 21 from duty in peacetime. 32
The remaining laws are decades newer, and even some of those only provide peacetime
30
Had 18- to 20-year-olds not been required to join the militia at the Founding,
perhaps Plaintiffs would be left with silence or ambiguity. If Heller’s list of presumptively
lawful measures were then to apply, the challengers would lack the necessary affirmative
historical evidence to overcome it. But neither is the case here, as the presumption does
not apply and even if it did, the laws put forth by the government do little to undermine the
affirmative case that those 18 and older are protected.
31
J.A. 289; An Act for the Regulation of the Militia of the Commonwealth of
Pennsylvania § 1 (1793), in 14 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682
TO 1801, at 454, 455 (1909).
32
J.A. 287; An Act to Establish an Uniform Militia Throughout this State §§ 1, 4
(1807), in LAWS OF THE STATE OF DELAWARE PASSED AT A SESSION OF THE GENERAL
ASSEMBLY WHICH WAS BEGUN AND HOLDEN AT DOVER, ON TUESDAY THE FOURTH, AND
ENDED ON THURSDAY THE THIRTEENTH OF AUGUST, IN THE YEAR OF OUR LORD, ONE
THOUSAND EIGHT HUNDRED AND SEVEN 123, 123, 125 (1807). Another Delaware law
closer to ratification also required 18-year-olds to enlist but similarly excepted those 21
and younger from militia duty. See An Act for Establishing the Militia in this State, §§ 1–
2 (1793), in 2 LAWS OF THE STATE OF DELAWARE FROM THE FOURTEENTH DAY OF
OCTOBER, ONE THOUSAND SEVEN HUNDRED, TO THE EIGHTEENTH DAY OF AUGUST, ONE
THOUSAND SEVEN HUNDRED AND NINETY-SEVEN 1134, 1134–35 (1797).
41
exemptions. J.A. 287–89; see also Nat’l Rifle Ass’n, 714 F.3d at 342 (Jones, J., dissenting)
(making a similar argument that a 1843 Ohio law fails to show that 18-year-olds lack
Second Amendment rights because even though they were exempt from service during
peacetime, they were still required to be in the militia). 33 These peacetime-exemption laws
do not exclude those under 21 from enrolling in the militia. In fact, they often still required
18-year-olds to join the militia. They just exempted them from certain militia requirements
during peacetime, such as bringing a firearm. So these laws do not undermine, but instead
reinforce, the conclusion that 18-year-olds were included in the public’s conception of the
militia.
And, as noted previously, because states were not subject to the Bill of Rights, the
further one moves from ratification, the more state variation will occur and the less
33
Ohio set the mandatory militia enlistment age at 18 in 1837. See An Act to
Organize and Discipline the Militia § 1 (1837), in ACTS OF A GENERAL NATURE, PASSED
AT THE FIRST SESSION OF THE THIRTY-FIFTH GENERAL ASSEMBLY OF THE STATE OF OHIO
18, 18 (1837). In 1843, Ohio exempted those under 21 from duty during peacetime but
still required them to be enrolled, like most other peacetime exemption laws. An Act to
Amend the Act Entitled “An Act to Regulate the Militia” § 6 (1843), in ACTS OF A
GENERAL NATURE, PASSED BY THE FORTY FIRST GENERAL ASSEMBLY OF THE STATE OF
OHIO 99, 100 (1843). The next year, Ohio exempted the entire public from militia duties
during peacetime—reflecting the decline in the importance of militias—and set the age for
mandatory enlistment at 21. An Act to Regulate the Militia §§ 1–2 (1844), in ACTS OF A
GENERAL NATURE, PASSED BY THE FORTY SECOND GENERAL ASSEMBLY OF THE STATE
OF OHIO 53, 53 (1844). But the law also made clear that 18-year-olds could volunteer for
the militia. Id. § 14, in ACTS OF A GENERAL NATURE PASSED BY THE FORTY SECOND
GENERAL ASSEMBLY OF THE STATE OF OHIO 55.
42
probative the laws will be in interpreting the Second Amendment. 34 While we should not
completely discount evidence closer to the Civil War, these later militia laws are less
instructive. In the decades after the Founding, the militia had become much less important
while individual self-defense became more meaningful. 35 As a result, fewer people needed
to be in the militia, and militias were less tied to gun ownership. Robert Leider, Our Non-
Originalist Right to Bear Arms, 89 Ind. L.J. 1587, 1634 (2014). So militia laws enacted
decades after ratification, especially when the militias were in decline, provide limited
evidence of the original public meaning of the Second Amendment. See Nat’l Rifle Ass’n,
714 F.3d at 339, 342 (Jones, J., dissenting).
The government also relies on a 1778 New Jersey law that set the militia age at 21
for a single call to arms. That New Jersey law called for 1,000 men ages 21 and older to
enlist to defend the frontiers. See generally An Act to Embody, for a Limited Time, One
Thousand of the Militia of this State, for the Defence of the Frontiers Thereof §§ 1, 3
(1778), in Acts of the General Assembly of the State of New Jersey. At a Session Begun
at Trenton on the 27th Day of October, 1778 and Continued by Adjournments 58, 58–59
34
The first state after ratification to adopt a law that set the minimum age for militia
service at 21 was Kansas in 1859. See KAN. CONST. of 1859, art. 8, § 1. But there may be
other laws that the parties, cases, articles, and our own efforts have yet to uncover.
35
McDonald, 561 U.S. at 770–77; 3 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES 746–47 (1833) (lamenting the declining
importance of militias); see also JAMES B. WHISKER, THE RISE AND DECLINE OF THE
AMERICAN MILITIA SYSTEM 330–31 (Susquehanna Univ. Press 1999); Gerald Orlo Van
Slyke, Jr., The Citizen Militias of the United States: Their Antecedents, Development, and
Present Condition 221–58 (Apr. 2016) (Ph.D. dissertation, Montana State University),
(saved as ECF opinion attachment).
43
(1778). The government’s reliance on this law reveals the sinking sand on which it stands.
This law was a one-time call to arms for 1,000 people for a single purpose. Id. It permits
officers to enlist those ages 16 to 21 but only calls upon those 21 and older for this particular
service. Id. § 3. Moreover, New Jersey still generally required 16-year-olds to enroll in
the militia, both before and after this temporary call to arms. 36 The mandatory enrollment
age increased to 18 around ratification 37 and remained there through 1829 when the state
36
An Act for the Better Regulating the Militia § 1 (1777), in ACTS OF THE GENERAL
ASSEMBLY OF THE STATE OF NEW JERSEY, AT A SESSION BEGUN AT PRINCETON ON THE
27TH DAY OF AUGUST 1776, AND CONTINUED BY ADJOURNMENTS 26, 26 (1777) (setting
the age at 16 a year prior); An Act for the Regulating, Training, and Arraying of the Militia,
and for Providing More Effectually for the Defence and Security of the State § 10 (1781),
in ACTS OF THE FIFTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A SESSION
BEGUN AT TRENTON ON THE 24TH DAY OF OCTOBER, 1780, AND CONTINUED BY
ADJOURNMENTS 39, 42 (1781) (affirming the age group to be enrolled in the state militia
as 16 to 50).
37
An Act for Organizing and Training the Militia of this State § 4 (1792), in ACTS
OF THE SEVENTEENTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY. AT A SESSION
BEGUN AT TRENTON THE 23D DAY OF OCTOBER 1792, AND CONTINUED BY
ADJOURNMENTS 824, 825 (1792) (age 18); A Supplement to the Act, Intitled, ‘An Act for
Organizing and Training the Militia of this State’ § 6 (1793), in ACTS OF THE
SEVENTEENTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY. AT A SESSION BEGUN
AT TRENTON THE 23D DAY OF OCTOBER 1792, AND CONTINUED BY ADJOURNMENTS 850,
853 (1793) (same); An Act for the Regulation of the Militia of New-Jersey § 1 (1799), in
ACTS OF THE TWENTY-THIRD GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A
SESSION BEGUN AT TRENTON, ON THE TWENTY-THIRD DAY OF OCTOBER, ONE THOUSAND
SEVEN HUNDRED AND NINETY-EIGHT, AND CONTINUED BY ADJOURNMENTS 609, 609
(1799) (same); An Act for Establishing and Conducting the Military Force of New-Jersey,
§ 1, ACTS OF THE THIRTIETH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A
SESSION BEGUN AT TRENTON, ON THE FIFTH DAY OF FEBRUARY, ONE THOUSAND EIGHT
HUNDRED AND SIX, AND CONTINUED BY ADJOURNMENTS 536, 536 (1806) (same).
44
enacted a peacetime-exemption law for those under 21. 38 Taken together, none of these
New Jersey laws reflect that 18-year-olds were excluded from militia service.
The government also points to a series of Virginia laws that set varying ages for
militia service. But at the time of ratification, Virginia required militia service for all men
ages 18 and older. An Act for Regulating the Militia of this Commonwealth § 12 (1792),
in A Collection of All Such Acts of the General Assembly of Virginia 282, 284 (1792). In
1705, Virginia set the age of service at 16. An Act for Settling the Militia (1705), in 3
William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of
Virginia, from the First Session of the Legislature, in the Year 1619, at 335, 335 (1823).
In 1723, Virginia raised the mandatory age for enlistment to 21 but made it clear that 16-
year-olds could be admitted as substitutes. An Act for the Settling and Better Regulation
of the Militia § 2, in 4 William Waller Hening, The Statutes at Large; Being a Collection
of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at
118, 118 (1820). Virginia kept the minimum age for enlistment at 21 in 1738 and used that
age of service for a special call to arms for the French and Indian War in 1754. 39 The next
38
J.A. 288; An Act to Exempt Minors from Militia Duty in Time of Peace § 1
(1829), in ACTS OF THE FIFTY-FOURTH GENERAL ASSEMBLY OF THE STATE OF NEW
JERSEY, AT A SESSION BEGUN AT TRENTON, ON THE TWENTY-SEVENTH DAY OF OCTOBER,
ONE THOUSAND EIGHT HUNDRED AND TWENTY-NINE 3, 3 (1829).
39
An Act, for the Better Regulation of the Militia § 2 (1738), in 5 WILLIAM WALLER
HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA,
FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 16, 16 (1819); An
Act for Raising Levies and Recruits to Serve in the Present Expedition against the French,
on the Ohio §§ 1–3, in 6 WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A
45
year, however, Virginia adopted 18 as the age of service, then reduced the age to 16 during
the Revolutionary War, and returned to age 18 near the time of ratification. 40
Pennsylvania follows a similar story. In 1755, at the height of the French and Indian
War, Benjamin Franklin drafted and got passed a militia law that required the enrollment
COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE
LEGISLATURE, IN THE YEAR 1619, at 438, 438–39 (1819).
40
An Act for the Better Regulating and Training the Militia § 3 (1755), in 6
WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE
LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at
530, 531 (1819) (age 18); An Ordinance for Raising and Embodying a Sufficient Force,
for the Defence and Protection of this Colony (1775), in 9 WILLIAM WALLER HENING, THE
STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE
FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9, 16–17 (1821) (age 16); An
Act for Amending the Several Laws for Regulating and Disciplining the Militia, and
Guarding Against Invasions and Insurrections § 2 (1784), in 11 WILLIAM WALLER
HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA,
FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 476, 476–77 (1823)
(age 18); An Act for Regulating the Militia of this Commonwealth § 12 (1792), in A
COLLECTION OF ALL SUCH ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA 282, 284
(1792) (age 18).
46
of men over 21. 41 But in 1777 Pennsylvania lowered the age to 18 where it remained
through ratification. 42
So every state required enrollment at least by age 18 during the decades around
ratification, which is the critical time for determining the historical meaning of the Second
Amendment. See Moore, 702 F.3d at 935 (citing McDonald, 561 U.S. at 765 & n.14);
Chester, 628 F.3d at 680 (citing Heller, 554 U.S. at 625).
Next, the government points to three state laws requiring parental consent to enlist
in the militia. J.A. 291. But two of those states were not states at the Founding and their
41
Even so, those under 21 could enlist with parental consent. An Act for the Better
Ordering and Regulating Such as Are Willing and Desirous to Be United for Military
Purposes Within this Province § 2 (1775), in 5 THE STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, at 197, 200 (1898). And Pennsylvania quickly moved
to ask 16-year-olds to voluntarily enroll and imposed a tax on those who did not. See Kopel
& Greenlee, supra note 10, at 561 (first citing Resolves of Assembly, Agreed to November
8th, 1775 para. 3, in 8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801,
at 492, 492 (1902); and then citing Resolutions Directing the Mode of Levying Taxes on
Non-Associators para. 1–2, in 8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682
TO 1801, at 538, 539 (1902)).
42
An Act to Regulate the Militia of the Commonwealth of Pennsylvania § 4 (1777),
in 9 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 75, 77 (1909)
(age 18); An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania
§ 3 (1780), in 10 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 144,
146 (1904) (age 18); An Act for the Regulation of the Militia of the Commonwealth of
Pennsylvania § 2 (1793), in 14 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682
TO 1801, at 454, 455 (1909) (age 18); An Act for the Regulation of the Militia of the
Commonwealth of Pennsylvania § 1 (1799), in 16 THE STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, at 276, 276 (1911) (age 18); An Act for the
Regulation of the Militia of the Commonwealth of Pennsylvania § 1 (1802), in 17 THE
STATUTES AT LARGE OF PENNSYLVANIA FROM 1802 TO 1805, at 174, 174 (1915) (age 18);
An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania § 2 (1807),
in 18 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1806 TO 1809, at 572, 573 (1915)
(age 18).
47
laws were not passed until 1835 and 1863 respectively. 43 The earliest of these laws was
passed by New York in 1818, but it is a stretch to claim that it required parental consent
for anyone under 21, as the law required 18-year-olds to enroll in the militia and only
required parental consent to join particular companies such as cavalry and artillery. 44
Before ratification New York set the enlistment age at 16 and right after ratification it was
raised to 18 in line with the federal Militia Act. 45 And even true parental-consent laws
exempted 18-year-olds from mandatory service in the militia but still permitted them to
join with their parents’ permission.
The government also points to a handful of laws requiring parents to furnish arms
and pay fees for their enlisted children. J.A. 298–301. But those laws do little to suggest
that those under 21 were not required to keep and bear arms. Most of those laws require
18-year-olds to enlist but do not set an age for parental liability, just requiring guardians
to be liable for the equipment and food of those “who shall be under their care.” Id. And
the existence of these laws is unsurprising given that some states required those older than
43
An Act to Organise, Govern, and Discipline the Militia art. IV, § 22 (1835), in 2
LAWS OF A PUBLIC AND GENERAL NATURE OF THE STATE OF MISSOURI, PASSED BETWEEN
THE YEARS 1824 & 1836, at 512, 521 (1842); An Act for the Reorganization of the Military
Forces of the State of Michigan § 6 (1863), in 1 JAMES S. DEWEY, THE COMPILED LAWS
OF THE STATE OF MICHIGAN 317, 320 (1872).
An Act to Organize the Militia § 33 (1818), in LAWS OF THE STATE OF NEW
44
YORK, PASSED AT THE FORTY-FIRST SESSION OF THE LEGISLATURE 211, 225 (1818).
45
An Act to Regulate the Militia (1786), in 1 THOMAS GREENLEAF, LAWS OF THE
STATE OF NEW YORK 227, 227 (1792) (age 16); An Act to Organize the Militia of this State
(1793), in 3 LAWS OF THE STATE OF NEW YORK 440, 440 (1887) (age 18).
48
16 to enroll in the militia. 46 Regardless, “the point remains that those minors were in the
militia and, as such, they were required to own their own weapons,” even if their parents
had to buy those weapons or consent to them joining. Nat’l Rifle Ass’n, 714 F.3d at 342
(Jones, J., dissenting).
So contrary to the government’s claims, state and federal militia laws show that 18-
year-olds had a right to keep and bear arms. Near ratification, every state and the federal
government required 18-year-old men to be in the militia and have their own weapons,
meaning that those people were part of “the people” protected by the Second
Amendment. 47 Nothing in the few and distant militia laws the government identifies
undermines this conclusion.
46
Appendix 1; Kopel & Greenlee, supra note 10, at 585–86. Compare, e.g., An
Act, for Regulating and Governing the Militia of this State § 15 (1797), in 2 THE LAWS OF
THE STATE OF VERMONT DIGESTED AND COMPILED 122, 131–32 (1808) (parents must
provide weapons for “those of [the] militia who shall be under their care and command”),
with An Act Regulating the Militia of the State of Vermont (1787), in STATUTES OF THE
STATE OF VERMONT 94, 94 (1787) (16-year-olds must join the militia). The 1797 Vermont
law requires 18-year-olds to enroll but does not set an age under which parents must
provide arms for those “under their care and command.” An Act, for Regulating and
Governing the Militia of this State § 15 (1797), in 2 THE LAWS OF THE STATE OF VERMONT
DIGESTED AND COMPILED 122, 131–32 (1808). This is typical of these laws.
47
A fairly recent law review article confirms our research on the militia laws during
the eighteenth century. See generally Kopel & Greenlee, supra note 10. With the
exceptions of Virginia and Pennsylvania, where the age cutoff fluctuated as discussed
earlier, every colony and state during the eighteenth century required 18-year-olds to serve
in the militia and bring their own arms. Id. at 536–89. This was uniform in the decades
surrounding the ratification of the Second Amendment. Id. And most states required 16-
year-olds to serve prior to the federal Militia Act but raised their enlistment age to 18 in
line with the federal act for the rest of the century. Id. So at the very least 18-year-olds
were unambiguously required to be in the militia and thus are included in the Second
Amendment. Id. at 499–504.
49
3. The government’s arguments do not point to a different
conclusion
Founding-era militia laws provide strong evidence that 18-year-olds were covered
by the Second Amendment. So to undermine this evidence, the government turns to other
historical arguments. First, the government contends that the Second Amendment is tied
to virtue and minors were not considered virtuous. The government thus posits that
because the age of majority at the Founding was 21, those under 21 were not covered by
the Second Amendment. Second, it points to state laws in the late nineteenth and early
twentieth centuries that restricted the sale of handguns based on age. We find neither
argument persuasive.
a. The age of full majority
Both parties rely on the age of majority to make their case, but they look to the age
of majority from different time periods. Neither is relevant.
Plaintiffs argue that because the age of majority is now 18, 18-year-olds have
Second Amendment rights. In response to a similar argument, the Fifth Circuit correctly
explained that “‘majority or minority is a status’” that “lack[s] content without reference
to the right at issue.” Nat’l Rifle Ass’n, 700 F.3d at 204 n.17 (quoting Jeffrey F. Ghent,
Annotation, Statutory Change of Age of Majority as Affecting Pre–Existing Status or
Rights, 75 A.L.R.3d 228 § 3 (1977)). Yet inexplicably, the Fifth Circuit then concluded
that 18-year-olds do not have Second Amendment rights because the age of majority was
21 at the Founding. Id. at 201–03. The government likewise relies heavily on the idea that
the age of majority was 21 at the Founding. See 1 William Blackstone, Commentaries 463
50
(St. G. Tucker ed., 1803); Black’s Law Dictionary 847 (9th ed. 2009) (suggesting that the
age of majority was 21 at the Founding).
But the age of majority—even at the Founding—lacks meaning without reference
to a particular right. As Blackstone’s Commentaries makes clear, the relevant age of
majority depended on the capacity or activity. 1 William Blackstone, Commentaries 463–
64; see also id. at 465 (noting the “different capacities which [individuals] assume at
different ages”). For example, a man could take an oath at age 12, be capitally punished
in a criminal case at age 14, and serve as an executor at age 17. Id. at 463–64. And a
woman could consent to marriage at age 12, choose a guardian at age 14, and serve as an
executrix at age 17. Id. at 463. Both sexes had to wait until age 21 to dispose of their
lands. Id. So while the full age of majority was 21, that only mattered for specific
activities. Id. And even so, constitutional rights were not generally tied to an age of
majority, as the First and Fourth Amendments applied to minors at the Founding as they
do today. So the age of majority Blackstone identifies for different activities tells us little
about the scope of the Second Amendment’s protections.
To square the circle, some have attempted to connect the age of majority to the
Second Amendment by arguing that the right to keep and bear arms depends on “civic
virtue,” and those under 21—the Founding-era age of majority—were not considered
virtuous. Nat’l Rifle Ass’n, 700 F.3d at 201. But even if a group could be categorically
restricted from possessing Second Amendment rights because of the group’s perceived
virtue or dangerousness, we find the fact that those 18 and older had to serve in the militia
51
at the time of ratification means that they are not such a group. Even so, any determination
of a group’s dangerousness fits more appropriately at step two of this analysis.
But this age-of-majority argument has been proffered at step one to contend that
those historically considered without virtue are outside the scope of the Second
Amendment’s protection. See, e.g., Nat’l Rifle Ass’n, 700 F.3d at 200–01; United States v.
Rene E., 583 F.3d 8, 15–16 (1st Cir. 2009). There is an ongoing debate about the relevance
of virtue, 48 but whether the Second Amendment hinges on notions of virtue is irrelevant
for our purposes. As the Sixth Circuit said, “that the Founders understood the Amendment
to protect the virtuous does not explain who was counted among that class.” Tyler, 837
F.3d at 688–90 (rejecting the claim that the mentally ill were categorically unvirtuous).
Even if virtue matters, there is no Founding-era evidence that 18- to 20-year-olds were
considered unvirtuous, as only a few of the cited sources refer to minors and the ones that
do fail to rely on primary sources. 49 That is not historical evidence.
48
See, e.g., United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010); United
States v. Carpio-Leon, 701 F.3d 974, 979–81 (4th Cir. 2012); Don B. Kates, Jr., The Second
Amendment: A Dialogue, 49 L. & CONTEMP. PROBS. 143, 146 (1986); Saul Cornell, “Don’t
Know Much About History”: The Current Crisis in Second Amendment Scholarship, 29 N.
KY. L. REV. 657, 679 (2002). But see Folajtar v. Att’y Gen. of the U.S., 980 F.3d 897,
912–20 (3d Cir. 2020) (Bibas, J., dissenting); Kanter, 919 F.3d at 462–64 (7th Cir. 2019)
(Barrett, J., dissenting); Churchill, supra note 15, at 155–56, 165.
49
The sources relied on for the notion that 18-year-olds were not considered
virtuous “are like the layers of a matryoshka doll, each nested layer successively larger
with little at the core.” Folajtar, 980 F.3d at 915–18 (Bibas, J., dissenting); see Kates,
supra note 48, at 146 (suggesting that minors were not among the “virtuous” citizenry
allowed to own guns, citing only his own article, Don B. Kates, Jr., Handgun Prohibition
and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983),
which does not provide any historical evidence from the Founding to support that
52
The cited evidence to support the contention that minors could be prevented from
buying firearms comes from a passing reference in a footnote in Thomas Cooley’s treatise,
which was published nearly a century after ratification. Thomas M. Cooley, Treatise on
Constitutional Limitations 740 n.4 (5th ed. 1883) (“[t]hat the State may prohibit the sale of
arms to minors” (citing State v. Callicutt, 69 Tenn. 714 (1878), which held a Tennessee
state law, 1856 Tenn. Pub. Acts 92, 92, that made it illegal for someone to sell, loan, or
give a minor a pistol except for hunting was valid)). Putting aside the limited weight that
should be given to this passing statement in a footnote, Cooley’s lone source is a state case
applying a state law from decades after ratification. Id. Neither the law nor the case carries
much value in determining original public meaning. Moreover, the case cited, State v.
Callicutt, relies on Aymette v. Tennessee, 21 Tenn. (2 Hum.) 154, 158 (1840), for the
proposition that the Second Amendment only protects the right “to keep and bear arms for
their common defense” in a military context, not an individual right. Callicutt, 69 Tenn.
proposition); Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and
Criminological Considerations, 60 HASTINGS L.J. 1339, 1360 (2009) (cited by the
government but only providing sources for felon restrictions, not restrictions on minors);
Don B. Kates, Jr., Second Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN
REVOLUTION 1640 (Leonard W. Levy et al. eds., 1986) (claiming that minors could be
prevented from buying firearms but providing no sources); Cornell, supra note 48, at 679
(discussing civic virtue but not discussing minors); Glenn Harlan Reynolds, A Critical
Guide to the Second Amendment, 62 TENN. L. REV. 461, 480 (1995) (implying minors are
not virtuous based on Kates’s scholarship); Yassky, supra note 11, at 588, 626 (cursorily
discussing virtue and not in the context of minors). These sources merely cite each other
without offering primary sources supporting the idea that minors were considered
unvirtuous. See Folajtar, 980 F.3d at 915–18 (Bibas, J., dissenting); see also Eugene
Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1511–12 (2009) (arguing
that a danger justification could apply to those under age 18 but the justification was not
persuasive considering the other rights enjoyed by those 18 and older).
53
at 716 (also citing Page v. State, 50 Tenn. (3 Heisk.) 198 (1871)). Not only did Heller
explicitly reject this limited military and collective view of the Second Amendment, but it
also rejected Aymette as offering an “odd reading of the right . . . [and] not the one we
adopt.” 554 U.S. at 579–80, 613. So the only primary source the government can muster,
that comes long after ratification, does nothing to support its case.
And even so, in Cooley’s separate discussion of the Second Amendment as an
individual right he states that “[t]he meaning of the provision undoubtedly is, that the
people, from whom the militia must be taken, shall have the right to keep and bear arms;
and they need no permission or regulation of law for the purpose.” Thomas M. Cooley,
The General Principles of Constitutional Law in the United States of America 271 (1880).
So if anything, Cooley’s perspective on the Second Amendment reinforces our conclusion
that those who were in the militia at the time of ratification had Second Amendment rights.
The idea that 18- to 20-year-olds are not virtuous in the same manner as felons is a
strange contention. Why would the federal government and every state require unvirtuous
people to have guns and be in a militia? Especially if being unvirtuous means that you can,
and probably should, be disarmed? It is also odd considering that this group has most other
rights, while at least some of those rights are circumscribed for felons. As a result, the
government’s arguments fail to persuade us that 18- to 20-year-olds were considered
unvirtuous and thus outside the Second Amendment’s protections.
b. Historical gun regulations
Failing to find purchase in Founding-era militia laws or the age of majority, the
government turns to historical gun regulations. See Nat’l Rifle Ass’n, 700 F.3d at 200–01.
54
While some gun regulations existed at the Founding, there were no regulations restricting
minors’ ability to possess or purchase weapons until two states adopted such laws in 1856.
See id. at 202 n.14. The Fifth Circuit relied on the prevalence of gun-safety regulations
around the Founding to conclude that “gun use and gun control have been inextricably
intertwined” and that restrictions on particular groups were also allowed. Id. at 200–01.
Ironically, the very laws the Fifth Circuit relied on to permit general gun regulation were
rejected in Heller as justifications for broader regulations. Id. at 337–38 (Jones, J.,
dissenting) (rejecting the majority’s argument based on Heller). Compare id. at 200–01
(majority opinion), with Heller, 554 U.S. at 683–86 (Breyer, J., dissenting) (using similar
laws as the panel majority in Nat’l Rifle Ass’n), and id. at 631–34 (majority opinion)
(rejecting those laws as not probative). Perhaps for that reason, the government does not
force this argument but turns instead to laws that deal with age.
The government offers a long list of state laws that set various ages for purchasing
or possessing guns. J.A. 51–71. At least at step one of our analysis, however, these laws
carry little weight. Instead, the list reveals that near the time of ratification there were no
laws restricting the sale of firearms to 18-year-olds. The earliest laws cited were passed
over 60 years after ratification, and most were enacted after the Civil War.
According to the government, by the end of the nineteenth century, 18 states and
D.C. in some way restricted gun ownership by those under age 21. Id. This was less than
half of the 45 states admitted by 1899. Only 5 states and D.C. explicitly restricted gun
55
ownership for those under 21; 50 the rest, the government argues, restricted gun ownership
by “minors” and those under 21 were considered minors. 51 But the nineteenth-century
cases that are typically cited to support such restrictions either do not deal with this issue,
50
These states did so expressly: Indiana, 1875 Ind. Acts 59, 59; Maryland, 1882
Md. Laws 656, 656; West Virginia, 1882 W. Va. Acts 421, 421 (good cause and home
exceptions); Louisiana, 1890 La. Acts 39, 39; Wyoming, 1890 Wyo. Sess. Laws 127, 140.
J.A. 50–71. The District of Columbia did so expressly as well. 27 Stat. 116, 117 (1892);
see also J.A. 53. Nevada only restricted concealed carry by those under 21, not purchase,
possession, or open carry. See 1885 Nev. Stat. 51. As a result, we do not include Nevada
in our numbers.
51
These state statutes do not define the term “minors” so the government infers from
other laws that the term includes all those under age 21: Alabama, 1856 Ala. Laws 17, 17
(males only); Tennessee, 1856 Tenn. Pub. Acts 92, 92 (hunting exception); Kentucky, 1860
vol. 1 Ky. Acts 242, 245 (guardian can transfer to minors); Georgia, 1876 Ga. Laws 112,
112 (exception for defense); Mississippi, 1878 Miss. Laws 175, 175 (cannot sell to minors);
Missouri, 1883 Mo. Laws 76, 76 (parental-consent exception); Delaware, 16 Del. Laws
716, 716 (1881) (prohibiting sales to minors); Illinois, 1881 Ill. Laws 73, 73 (guardian can
transfer to minors); Kansas, 1883 Kan. Sess. Laws 159, 159; Wisconsin, 1883 vol. I Wis.
Sess. Laws 290, 290; Iowa, 1884 Iowa Acts 86, 86; North Carolina, 1893 N.C. Sess. Pub.
Laws 468, 468; and Texas, 1897 Reg. Sess. Tex. Gen. Laws 221, 221 (parental-consent
exception).
The government relies on caselaw to show that “minors,” as used in these statutes,
meant those under 21. But many cases it cites were decided much earlier or later than the
gun restrictions, addressed matters unrelated to gun ownership, or both. See, e.g., Walker
v. Walker, 17 Ala. 396, 398–99 (1850) (assuming that where a will used the term “become
of age,” it meant when the beneficiaries reached 21); Doe v. Archdiocese of Milwaukee,
700 N.W.2d 180, 188 (Wis. 2005) (explaining in 2005, 122 years after the relevant
Wisconsin law was passed, that before 1971 the age of majority was 21 for tolling a statute
of limitations). As the government points out, Illinois, Missouri, and Oklahoma set the age
of majority at 21 for men and 18 for women. See Anderson v. Williams, 104 N.E. 659, 661
(Ill. 1914); Reisse v. Clarenbach, 61 Mo. 310, 313 (1875); Bassett v. Bassett, 521 P.2d 434,
435 n.2 (Okla. Civ. App. 1974).
56
apply only to those under 18, do not address constitutional concerns, or rely on logic
rejected by Heller. 52
By the early 1920s, another state explicitly restricted gun ownership by those under
age 21 while two others did so by implication, bringing the grand total to 21 states and
D.C. 53 So even if we consider laws from more than a century after the Founding era, a
majority of states, 27, seem not to have restricted 18-year-olds from purchasing or
52
David B. Kopel & Joseph G.S. Greenlee, History and Tradition in Modern Circuit
Cases on the Second Amendment Rights of Young People, 43 S. ILL. U. L.J. 119, 121–31
(2018) (reviewing cases cited by Rene E., 583 F.3d at 14–15, and Nat’l Rifle Ass’n, 700
F.3d at 202). For example, in McMillen v. Steele, 119 A. 721, 722 (Pa. 1923), the
Pennsylvania Supreme Court made clear that age 16 was being used as a substitute “for the
proof necessary to show lack of capacity,” as “[c]hildren under that age have been
legislatively declared utterly unfit to handle firearms.” Virginia’s Supreme Court instead
drew the line at 18, saying: “We know, as a matter of fact, that at the age of eighteen, a
man is capable intellectually and physically of bearing arms,” recognizing that such a line
had been drawn by all “States of the Union, perhaps without exception.” United States v.
Blakeney, 44 Va. (3 Gratt.) 405, 418 (1847). Tankersly v. Commonwealth, 9 S.W. 702,
703 (Ky. 1888), was brief and decided on jurisdictional, rather than Second Amendment,
grounds. State v. Quail, 92 A. 859, 859 (Del. 1914), addressed only whether a concealed
unloaded revolver could still be considered a concealed “deadly weapon” and did not
consider the Second Amendment validity of the law. In Parman v. Lemmon, 244 P. 227,
230 (Kan. 1925), the court first held that shotguns were dangerous weapons that could not
be sold to minors. A forceful dissent noted the historical importance of armed minors to
the republic. Id. at 231–32 (Dawson, J., dissenting). On rehearing, the court reversed,
saying “the Legislature did not intend to make law violators of 60 per cent. of the militia
of the state, it being estimated that 60 per cent. of the personnel of that body are minors”
and adopted the dissenters’ views from the original case. Id. at 233.
53
New Hampshire’s law (1923) was explicit while Oklahoma (1890, admitted as a
State in 1907) and South Carolina’s (1923) laws functioned by implication.
57
possessing handguns; they instead restricted younger people. 54 In fact, the cited 1868
Oregon law affirmatively protects the gun rights of those older than 16. 55
54
The government admits that some of these laws set the minimum age between 12
and 20. In the late nineteenth and early twentieth centuries, many states set the age limit
at or below 18: Oregon (1868) (age 16), Ohio (1880) (age 14), Florida (1881) (age 16),
Pennsylvania (1881) (age 16), New Jersey (1882) (age 15), Michigan (1883) (age 13),
Rhode Island (1883) (age 15), New York (1883) (age 18), Massachusetts (1884) (age 15),
Minnesota (1889) (age 14), Virginia (1889) (age 16), Washington (enacted 1883, admitted
as a State in 1889) (age 16), Vermont (1896) (age 12), South Dakota (1903) (age 15), Utah
(1905) (age 14), Montana (1907) (age 14), Idaho (1909) (age 16), Arizona (enacted 1883,
admitted as a State in 1912) (age 14), California (1923) (age 18), and Connecticut (1923)
(age 18). Later, age-related restrictions were also enacted by New Mexico (1971)
(unlawful to hunt or shoot a firearm unless completed hunter-safety course, 18 or older, or
supervised by adult), Arkansas (1975) (prohibiting sale of firearm to minor without consent
of parent), Nebraska (1977) (unlawful for those under 18 to possess pistol), Alaska (1978)
(barring possession of a firearm by unemancipated minors under 16 without consent of a
parent), North Dakota (1985) (barring person under 18 from possessing a firearm without
supervision from an adult), Hawaii (1988) (limiting licensing for unconcealed carry to
those 21 or older), and Colorado (1993) (barring handgun possession under 18). J.A. 51–
71. While these laws may provide evidence that some age restrictions are acceptable, they
do not suggest that 18-year-olds are not protected by the Second Amendment. Moreover,
their passage so far removed from ratification makes their evidentiary value minimal. That
many of these laws came so late also suggests—at least for states or territories that existed
earlier—that these states had no age restrictions before these laws.
55
1868 Or. Laws 18, 18–19. One reason the government may have included this
law is because it implies that age restrictions are generally allowed. But it reads more like
a gap-filling or enforcement law rather than a law implicitly condoning age restrictions.
The law states, “[w]hereas, [t]he constitution of the United States” and “the constitution of
the State of Oregon” protect the right to bear arms, the Oregon legislature “therefore”
protects the rights of those over 16. That is, the “whereas” and “therefore” structure reads:
“Reflecting” the protections of the U.S. and Oregon Constitutions, the Oregon legislature
protects those over age 16, suggesting that the U.S. and Oregon Constitutions protect those
over 16. This law makes clear that this age group is protected in line with the constitutional
right, which may have been uncertain in the absence of this law. It also prohibits state
officials from taking the firearms of those over age 16, providing practical enforcement of
their Second Amendment rights. None of this implies that age restrictions are acceptable.
Quite the opposite.
58
As explained earlier, we focus the historical inquiry in step one on the time of
ratification in 1791. Chester, 628 F.3d at 680 (citing Heller, 554 U.S. at 625); Moore, 702
F.3d at 935 (citing McDonald, 561 U.S. at 765 & n.14). At the time of ratification, there
were no laws restricting minors’ possession or purchase of firearms. 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 (over 60 years after ratification). See J.A. 51–71;
1856 Ala. Acts 17, 17; 1856 Tenn. Pub. Acts 92, 92. These laws from later time periods
provide little insight into the Amendment’s original public meaning. Heller, 554 U.S. at
614; Nat’l Rifle Ass’n, 714 F.3d at 337, 339 (Jones, J., dissenting) (discounting late
nineteenth- and early twentieth-century sources). And these laws were passed by states
that were not bound by the Second Amendment. See Barron, 32 U.S. (7 Pet.) at 247–48;
New State Ice Co., 285 U.S. at 311; Lee, supra, at 22; Nelson Lund, The Second
Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354, 1359,
1368–69 (2009).
It would also be strange to rely on two southern laws restricting gun rights that were
enacted before the Civil War given Congress’s grave concerns about southern states
disarming freed Blacks during this period. Amar, supra, at 176; McDonald, 561 U.S. at770–78. State laws passed decades after the ratification restricting gun ownership—at a
time when state laws were used to disarm disfavored groups—is weak evidence of the
original scope of the Second Amendment.
59
* * *
A review of the Constitution’s text, structure, and history reveals that 18-year-olds
are covered by the Second Amendment. See Nat’l Rifle Ass’n, 714 F.3d at 337 (Jones, J.,
dissenting). Like most other constitutional rights, the Second Amendment has no explicit
age limit, and the most analogous constitutional rights apply equally to everyone. And
when a constitutional right applies differently to minors, the age cutoff has consistently
been set at 18, not 21.
Founding-era history confirms that the public understood the Second Amendment
to cover 18-year-olds. At the time of ratification, every state and the federal government
required 18-year-old men to enroll in the militia. Those in the militia, as Heller reminds
us, were a subset of the political community known as “the people” that enjoyed Second
Amendment rights. 554 U.S. at 580. While most of the militia laws the government
identifies still allowed 18-year-olds to join the militia, those that required enlistees to be
21 are few in number and distant in time from ratification. So the historical basis for those
18 and older having Second Amendment rights rests on firm ground.
Not only has the government failed to carry its burden to show that the regulated
conduct was outside the Second Amendment’s scope, see Chester, 628 F.3d at 680–81;
Ezell, 651 F.3d at 702–03; Tyler, 837 F.3d at 688, but the Constitution’s text, structure, and
history affirmatively prove that 18-year-olds are covered by the Second Amendment.
C. Step two: the laws do not pass intermediate scrutiny
Having found that 18-year-olds are protected by the Second Amendment, our
precedent requires that we apply “an appropriate form of means-end scrutiny.” Chester,
60
628 F.3d at 680. The Second Amendment’s “core protection” is “the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Kolbe, 849 F.3d at 131
(quoting Heller, 554 U.S. at 634–35). When that right is “severely burden[ed],” we apply
the “‘demanding’” strict scrutiny test. Id. at 133, 138 (quoting City of Boerne v. Flores,
521 U.S. 507, 534 (1997)). But if the right is burdened only on the margins, intermediate
scrutiny applies. Masciandaro, 638 F.3d at 470–71. Because we find that the laws do not
even pass intermediate scrutiny, we need not decide how close to the core of the Second
Amendment these laws strike.
Intermediate scrutiny requires the government to show “a reasonable fit between the
challenged regulation and a substantial government objective.” Chester, 628 F.3d at 683(internal quotations marks omitted). 56 Various evidence can be mustered to meet this
standard but “reference to legislative findings, academic studies, or other empirical data is
necessary.” Tyler, 837 F.3d at 694; see also Ezell, 651 F.3d at 709 (lack of empirics
doomed the range ban). And while “case law, and even common sense” may be relied on,
the government may not “rely upon mere ‘anecdote and supposition.’” Tyler, 837 F.3d at
694 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 822 (2000)). The
government must therefore offer more than speculation to connect a ban on 18- to 20-year-
56
Exactly what intermediate scrutiny requires in a given situation remains unclear.
Compare Chester, 628 F.3d at 683 (“reasonable fit”), with Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982) (“substantially related”). Given the lack of descriptive
clarity, its application varies widely. See Duncan v. Becerra, 970 F.3d 1133, 1165–67 (9th
Cir. 2020) (noting varying standards and degrees of deference). In response, some have
argued that courts’ Second Amendment scrutiny should focus instead on the text, structure,
history, and traditions of the Constitution. See Heller II, 670 F.3d at 1271–75 (Kavanaugh,
J., dissenting).
61
olds purchasing handguns from licensed dealers to a substantial interest. See 18 U.S.C.
§ 922(b)(1).
To begin, the government’s interests in preventing crime, enhancing public safety,
and reducing gun violence are “not only substantial, but compelling.” Kolbe, 849 F.3d at
139; see Schall v. Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and compelling state
interest’ in protecting the community from crime cannot be doubted.”); Schenck v. Pro–
Choice Network of W. N.Y., 519 U.S. 357, 376 (1997) (referring to the “significant
governmental interest in public safety”); see also Wrenn v. Dist. of Columbia, 864 F.3d
650, 655 (D.C. Cir. 2017) (“[G]un laws almost always aim at the most compelling goal—
saving lives—while evidence of their effects is almost always deeply contested.”). Thus,
we look to whether the regulations are a reasonable fit to that interest.
At the summary judgment stage, the government only proffered evidence from the
Congressional Record to support finding a reasonable fit between its compelling interests
and the challenged laws. Before the district court, amici offered more contemporary
evidence to address the intermediate-scrutiny analysis. The government, however, neither
adopted nor relied on that evidence. So it is unclear whether we may rely on amici’s
evidence on appeal. 57 But even if we consider amici’s evidence, it does not change our
57
In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720–21 (2014), the
Supreme Court refused to consider statistics raised by amici because it “do[es] not
generally entertain arguments that were not raised below and are not advanced in th[at]
Court by any party.” The Court justified this conclusion because the government may not
have agreed with amici’s “intensely empirical argument” and plaintiffs would not have a
fair chance to respond to it. Id. at 721.
62
analysis, for amici merely offer contemporary evidence to reinforce the congressional
record, and that evidence does not alter or remedy its flaws.
The basic logic of the argument is: (1) the brains of those under age 25 are not fully
developed so those individuals are prone to reckless and emotional behavior; 58 (2) because
of this underdevelopment, youth, especially those ages 18 to 20, commit a disproportionate
But unlike in Hobby Lobby, the amici’s arguments here were raised and adopted by
the district court, and some of their evidence is in the record. J.A. 341–401; Hirschfeld,
417 F. Supp. 3d at 758–59 (depending on the Congressional Record and Fifth Circuit’s
reasoning but noting that amici’s evidence supported the conclusion). As in Hobby Lobby,
however, amici offer an “intensely empirical argument,” and it is not clear that the
government shares their views.
58
The Congressional Record concludes that “[t]he greatest growth of crime today
is in the area of young people, juveniles and young adults. The easy availability of weapons
makes their tendency toward wild, and sometimes irrational behavior that much more
violent, that much more deadly.” Federal Firearms Act: Hearings Before the Subcomm.
to Investigate Juvenile Delinquency of the S. Comm. on the Judiciary, 90th Cong. 57 (1967)
(testimony of Sheldon S. Cohen).
Amici support this contention with recent scientific studies showing that those under
25 have underdeveloped brains that lead them to make emotional, reckless, and violent
decisions. See, e.g., J.A. 342–54 (reprinting Mariam Arain et al., Maturation of the
Adolescent Brain, 9 NEUROPSYCHIATRIC DISEASE & TREATMENT 449, 453, 456 (2013));
J.A. 356–65 (reprinting Leah H. Somerville et al., A Time of Change: Behavioral and
Neural Correlates of Adolescent Sensitivity to Appetitive and Aversive Environmental
Cues, 72 BRAIN & COGNITION 124, 125 (2010)); Michael Dreyfuss et al., Teens Impulsively
React Rather Than Retreat from Threat, 36 DEVELOPMENTAL NEUROSCIENCE 220, 220
(2014) (“Adolescents commit more crimes per capita than children or adults in the USA
and in nearly all industrialized cultures. Their proclivity toward . . . risk taking has been
suggested to underlie the inflection in criminal activity observed during this time.” (internal
citations omitted)).
63
amount of violence; 59 (3) handguns are the main tool used to commit that violence; 60 and
(4) many of those handguns are bought from licensed dealers, so restricting that avenue of
purchase for the relevant age group will reduce crime. 61 Amici then try to tie the bow by
59
Congress concluded that the growth in crime it investigated was largely
attributable to youth. See Federal Firearms Act: Hearings Before the Subcomm. to
Investigate Juvenile Delinquency of the S. Comm. on the Judiciary, 90th Cong. 57 (1967)
(testimony of Sheldon S. Cohen). Congress’s investigation had shown that “juveniles
account for some 49 percent of the arrests for serious crimes in the United States,” while
“minors account for 64 percent of the total arrests in this category.” S. Rep. No. 90–1097,
at 77. Specifically, “minors under the age of 21 years accounted for 35 percent of the
arrests for the serious crimes of violence including murder, rape, robbery, and aggravated
assault” and 21 percent of the arrests for murder. 114 Cong. Rec. 12,279, 12,309 (1968)
(statement of Sen. Thomas J. Dodd). Law enforcement officers from New York City, Los
Angeles, St. Louis, Chicago, Philadelphia, and Atlanta provided Congress with “statistics
documenting the misuse of firearms by juveniles and minors,” which “take on added
significance” given that minors were prohibited from acquiring concealable firearms in
those cities. S. Rep. No. 89-1866, at 58–60.
Amici offered contemporary evidence to support this claim. See, e.g., J.A. 371
(“Age-specific homicide offending rates rise sharply in the late teens and peak at age 20”
with a peak homicide rate of around 16 per 100,000.). Though 18-, 19-, and 20-year-olds
make up around 4% of the population, they account for about 15% of homicide arrests and
a disproportionate amount of other violent crimes. Compare Federal Bureau of
Investigation, 2018: Crime in the United States, Arrests by Age, 2018, (saved as ECF
opinion attachment), with U.S. Census Bureau, Current Population Reports: Population
Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050, at
76, (saved as ECF opinion attachment).
60
Congress found that “the handgun is the type of firearm that is principally used in
the commission of serious crime” and “the most troublesome and difficult factor in the
unlawful use of firearms.” S. Rep. No. 89-1866, at 4–7. Congress also found “a causal
relationship between the easy availability of firearms other than a rifle or shotgun and
juvenile and youthful criminal behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat.
at 225–26.
61
Congress relied on IRS Commissioner Cohen’s testimony for the proposition that
[t]he vast majority, in fact, almost all of these firearms, are put into the hands
of juveniles by importers, manufacturers, and dealers who operate under
licenses issued by the Federal Government . . . . The way to end this
64
arguing that the passage of state gun laws has coincided with decreases in youth suicides
and unintentional deaths. 62
Whatever credence these contentions may have, we find that this chain of logic
suffers from two debilitating flaws: (1) 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, and (2) the evidence does not sufficiently
link purchases from licensed dealers to crimes committed by youth.
dangerous practice is to stop these Federal licensees from selling firearms to
juveniles and this is one of the major things that [the proposed legislation]
would do.
Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means, 89th Cong. 31
(1965) (testimony of Sheldon S. Cohen); Pub. L. No. 90–351, tit. IV, § 901(a)(6), 82 Stat.
at 226 (finding that concealable firearms had been “widely sold by federally licensed
importers and dealers to emotionally immature, or thrill-bent juveniles and minors prone
to criminal behavior”); id. § 901(a)(3), 82 Stat. at 225 (concluding that “only through
adequate Federal control over interstate and foreign commerce in these weapons, and over
all persons engaging in the business of importing, manufacturing, or dealing in them, can
this grave problem be properly dealt with, and effective State and local regulation of this
traffic be made possible”).
Amici offer other evidence to support this proposition. J.A. 387–92 (reprinting
Katherine A. Vittes et al., Legal Status and Source of Offenders’ Firearms in States with
the Least Stringent Criteria for Gun Ownership, 19 INJURY PREVENTION 26, 29–30
(2013)).
62
J.A. 394–401 (reprinting Mark Gius, The Impact of Minimum Age and Child
Access Prevention Laws on Firearm-Related Youth Suicides and Unintentional Deaths, 52
THE SOC. SCI. J. 168, 173 (2015) (finding that youth suicides and accidental deaths
decreased after Congress increased the minimum age for gun possession to 18)); Daniel
W. Webster et al., Association Between Youth-Focused Firearm Laws and Youth Suicides,
292 JAMA 594, 598 (2004) (state laws raising the minimum age for handgun purchases to
21 were linked to a 9% decline in firearm suicide rates among 18- to 20-year-olds).
65
The Supreme Court case Craig v. Boren, 429 U.S. 190 (1976), guides much of our
analysis. In the first case to announce the intermediate-scrutiny standard, the Court
enjoined an Oklahoma law that prohibited licensed sellers from “sell[ing], barter[ing] or
giv[ing]” low-alcohol beer (3.2% alcohol) to males under the age of 21 and females under
the age of 18 because the state could not show that the sex classification was “substantially
related” to road safety. Id. at 191 n.1, 204 (quoting Okla. Stat. tit. 37, § 241 (1953); Okla.
Stat. tit. 35, § 245 (1972)). 63 The Court reviewed studies that showed that 18-, 19-, and
20-year-old males were disproportionately arrested for, killed by, and injured by drunk
driving. Id. at 200–01. The Court accepted that only 0.18% of females compared to 2%
of males had been arrested for drunk driving (over 10 times as many). Id. at 201–02. But
it rejected this evidence as sufficient to satisfy intermediate scrutiny: “[I]f maleness is to
63
The dissent argues that the firearm regulations at issue in this case are narrow and
uses this purported narrowness to help find that the laws pass intermediate scrutiny.
Dissenting Op. at 99–101, 106–08. But the constitutional burden here is no narrower than
the burden in Craig. In Craig, the law only prohibited licensed sellers from selling or
giving low-alcohol beer to men ages 18 to 20 even though they could sell it to women of
the same age. The constitutional burden here is quite similar. Both laws only restrict
licensed sellers, allowing a minor to obtain the product by other means. Both laws are also
temporary, only applying until one turns 21. And both laws only restrict access for one
particular group of people to one particular product out of a larger category (handguns
versus all guns compared to low-alcohol beer versus all alcohol). And despite the dissent’s
claim that the availability of long guns lessens the burden, Heller explicitly rejected a
similar argument. See 554 U.S. at 629.
Moreover, the alternatives for acquiring a handgun are not as straightforward as the
dissent envisions. Many young people lack friends or family who can afford to gift them
a gun. And the secondary market is often not readily available. Further, the federally
licensed dealers assure the safety, reliability, and legality of the weapons, unlike sellers on
the secondary market. The ban here also applies to ammunition. So these burdens are
hardly narrow or minor, especially when compared to the burdens placed on men by the
disparate restrictions in Craig.
66
serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly
tenuous ‘fit.’” Id. The Court also found it significant that the state did not “measure the
use and dangerousness of 3.2% beer as opposed to alcohol generally” to tie the challenged
restriction to its interest in reducing drunk driving. Id. at 203. So in total, the state’s
evidence did “not satisfy [the Court] that sex represents a legitimate, accurate proxy for the
regulation of drinking and driving.” Id. at 204.
The same flaws plague the evidence here. 64 First, while 18- to 20-year-olds commit
a disproportionate amount of crime compared to other age groups, very few members of
that group commit crime, making the correlation between age and gun crimes “an unduly
tenuous ‘fit.’” Id. at 201–02. Second, like the connection between low-alcohol beer and
drunk driving, the connection between handgun purchases from licensed dealers—as
opposed to the many other ways to obtain handguns—and crimes committed by 18- to 20-
year-olds has not been made. So just as sex was a poor proxy for drunk driving in Craig,
age is a poor proxy for gun violence in this case.
64
The dissent claims that the Second Amendment is not treated as a second-class
right. But then the dissent says that legislatures should receive more deference when
regulating guns. Dissenting Op. at 104–05, 138–39. But see Chester, 628 F.3d at 683(quoting language from Marzzarella, 614 F.3d at 98, suggesting that the various
descriptions of intermediate scrutiny describe the same test, including that from the
progenitor of intermediate scrutiny, Craig, 429 U.S. at 197). And even though Craig
created the intermediate-scrutiny test, the dissent says Craig is inapplicable, in part,
because of the history of sex discrimination that makes the issue in Craig “repugnant to
the nation’s commitment to equal protection in a way the challenged provisions in this case
are not.” Dissenting Op. at 136; cf. Duncan, 970 F.3d at 1165–67 (noting that some courts
seem to apply a lower form of intermediate scrutiny to the Second Amendment). We refuse
to create this hierarchy of constitutional rights.
67
1. Disproportionate rates cannot justify vastly over-inclusive group
restrictions
The laws at issue here rest on the premise that young adults’ Second Amendment
rights can be limited because they are responsible for a disproportionate amount of violent
crime. But these laws over-inclusively restrict the rights of a large group of law-abiding
citizens to target a tiny portion of them. In 1967, Congress was concerned about a
disproportionate increase in crimes committed by youth. But the disproportionate rate of
crime committed by this group tells us nothing about the percentage of the group that
commits gun violence. Amici’s contemporary sources purport to show that 18-, 19-, and
20-year-olds make up around 4% of the population but account for around 9.4% of violent
crime arrests (about 37,000 of the 400,000 arrests each year). 65 So while 18- to 20-year-
olds may commit a disproportionate share of violent crime, an exceedingly small
65
Federal Bureau of Investigation, 2018: Crime in the United States, Arrests by Age,
2018, (saved as ECF opinion attachment); U.S. Census Bureau, Current Population
Reports: Population Projections of the United States by Age, Sex, Race, and Hispanic
Origin: 1995 to 2050, at 76, (saved as ECF opinion attachment). One can quibble with
these statistics but only at the margins. For example, the FBI Report covers about 80% of
the population, so the number of violent crimes committed is likely 25% higher. But the
report also covers all violent crime, without accounting for the proportion of that crime
committed using a handgun. And while we lack detailed data on all violent crime, the FBI
reports that handguns are used to commit around 47% of murders (and about 71% of
murders involve some kind of firearm). Federal Bureau of Investigation, 2017: Crime in
the United States, Murder Victims by Weapon, 2013–2017, (saved as ECF opinion
attachment); see also J.A. 389 (finding that 81% of offenses committed with a firearm
involved a handgun).
68
percentage, around 0.3% and definitely less than 1%, of the 13 million young adults in this
group commit those crimes. 66 This alone cannot justify restricting the entire group’s rights.
66
The amici’s sources suggest that 0.3% of young adults ages 18 to 20 commit
violent crime each year, while more recent data suggests only a slightly greater percentage,
about 0.37%. There are several things worth noting about these calculations. First, we
consider only the crime rates of 18-, 19-, and 20-year-olds because the laws do not apply
once one turns 21. Second, while exact calculations are difficult, the sources consistently
show that less than 1% of this age group is arrested for committing a violent crime each
year. So we can comfortably say that the true value lies somewhere below 1%. Third, we
calculate these numbers using the formula: violent crime arrests for 18-, 19-, and 20-year-
olds / (the number of individuals in that age group * the percentage of the population the
FBI statistics cover). This gives us the percentage of 18-, 19-, and 20-year-olds arrested
for violent crimes, not reflecting the many repeat offenders. See infra note 67. We thus
have a theoretical “maximum” percentage if every individual arrested was unique.
To arrive at the 0.3% number, we used the data provided by amici. Amici provided
a census report from 1996 that estimated that America’s population would be 317 million
by 2018. U.S. Census Bureau, Current Population Reports: Population Projections of the
United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050, at 32, (saved as ECF
opinion attachment). We also took their estimate that 5% of the total population, or around
16 million people, would be 18-, 19-, and 20-year-olds. J.A. 206. We then used the FBI’s
2018 data comprising 78% of the population which showed that 18-, 19-, and 20-year-olds
were arrested a bit fewer than 37,000 times for violent crimes in 2018. See Federal Bureau
of Investigation, 2018: Crime in the United States, Arrests by Age, 2018, (saved as ECF
opinion attachment). We plugged those numbers into the formula: 37,000 / (16,000,000
x 0.78) = 0.3%.
Because amici’s 1996 report underestimated America’s total population by about
10 million, we used more recent data to calculate another estimate. Recent data estimates
the total population at 327 million and 18- to 20-year-olds at only 13 million in 2018. See
U.S. Census Bureau, Annual Estimates of the Resident Population by Single Year of Age
and Sex for the United States: April 1, 2010 to July 1, 2019, (saved as ECF opinion
attachment) (for consistency we used the 2018 numbers adding 18- (4,311,728), 19-
(4,253,664), and 20- (4,262,078) year-olds to get 12,827,470). The change in America’s
population meant that the FBI data only accounted for 76% of the population, so we also
adjusted that number. Plugging these numbers in, we get 37,000 / (13,000,000 x 0.76) =
0.37%.
Similarly, Judge Jones’s dissent in Nat’l Rifle Ass’n notes that “only 0.58% of 18-
to 20-year olds were arrested for violent crimes in 2010,” which stemmed from the Fifth
Circuit’s Plaintiffs’ Petition for Rehearing En Banc. 714 F.3d at 347 (Jones, J., dissenting).
The plaintiffs in that case had divided the FBI violent crime arrest statistics by age (59,921)
69
What’s more, those calculations do not account for repeat offenders. In fact, a year
after being released, over 40% of criminals are arrested again, and that number approaches
80% in the 6 years after release. 67 This means that an even smaller portion of the group is
likely responsible for its disproportionate commission of violent crime.
Beyond its overbreadth, consider the implications of this argument. Men commit
disproportionally more violent crime than women. 68 Does that mean that the Second
Amendment rights of men can be categorically restricted? See Volokh, supra note 49, at
1512–13. Treating the sexes differently would also receive intermediate scrutiny. So why
not? A similar argument could be made for any number of groups, such as those living in
a specific geographic location. See Heller, 554 U.S. at 681–82 (Breyer, J., dissenting)
by the group’s total population (13,256,712) multiplied by the percentage of the total
population that the FBI statistics covered (0.775). See Petition for Rehearing En Banc at
12 n.1, Nat’l Rifle Ass’n, 714 F.3d 334 (No. 11-10959) (citing FBI and census data).
Plaintiffs’ initial brief in Nat’l Rifle Ass’n uses the same method to find that 0.64% of
young adults were arrested for committing a violent crime in 2009. See Opening Br. at 55
n.17, Nat’l Rifle Ass’n, 700 F.3d 185 (No. 11-10959) (citing FBI and census data). These
similar numbers confirm our general point that a tiny fraction of individuals in this age
group commit violent crimes.
Bureau of Justice Statistics, 2018 Update on Prisoner Recidivism: A 9-Year
67
Follow-up Period (2005–2014), at 4 (2018), (saved as ECF opinion attachment).
68
Roughly 80% of violent crimes are committed by males. See Federal Bureau of
Investigation, 2018: Crime in the United States, Arrests by Sex, 2018, (saved as ECF
opinion attachment). The more than 150 million men in America account for around
310,000 violent-crime arrests. Id.; U.S. Census Bureau, Current Population Reports:
Population Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995
to 2050, at 76, (saved as ECF opinion attachment). And males in prison are reported to be
2.5 to 3 times as likely as females to have possessed a firearm during the crime for which
they are imprisoned. Bureau of Justice Statistics, Source and Use of Firearms Involved in
Crimes: Survey of Prison Inmates, at 6 (2016), (saved as ECF opinion attachment).
70
(arguing that because crime is higher in urban centers more restrictions are allowed); id. at
634 (majority opinion) (rejecting the dissent’s “judge-empowering ‘interest-balancing
inquiry’” that permits greater regulation in urban areas). And amici’s own evidence and
arguments would support restricting 21- to 25-year-olds’ rights, if not older adults, as much
as it supports drawing the line at age 21. See supra notes 58, 59. Is that acceptable, and if
so, where is the line?
Craig explains why such laws would fail when it declared that “a correlation of 2%
must be considered an unduly tenuous ‘fit.’” Craig, 429 U.S. at 201–02. The question is
not about the disparity between groups or the total crime each group commits, but the
percentage of the group that uses a gun in an impermissible manner. That statistic gives
us some insight into the likelihood that any one person in the group will use a gun
improperly and pose a danger to the public. Whatever the precise answer to that question,
here it falls well below the unduly tenuous threshold from Craig.
The rights of more than 99% of a group cannot be restricted because a fraction of
1% commit a disproportionate amount of violent crime. And it is already illegal for felons,
fugitives, drug users, and aliens unlawfully in the United States, among others, to buy
firearms from licensed dealers. So the laws at issue by their nature prevent a more law-
abiding, less dangerous subset of 18- to 20-year-olds from purchasing from a more
regulated market. For reducing gun violence and crime, restricting a whole group that is
almost entirely law-abiding is the definition of an unduly tenuous fit. And, because those
71
who are young are also disproportionately the victims of crime, 69 preventing them from
purchasing handguns implicates the self-defense core of the Second Amendment the
most. 70
The irony does not escape us that, under the government’s reasoning, the same 18-
to 20-year-old men and women we depend on to protect us in the armed forces and who
have since our Founding been trusted with the most sophisticated weaponry should
nonetheless be prevented from purchasing a handgun from a federally licensed dealer for
their own protection at home. We refuse to accept this conclusion. These men and women
who, historically, have served either voluntarily or by conscription may not be read out of
“the people” in the Second Amendment.
2. Handgun purchases from licensed dealers have not been
connected to gun violence
The second major flaw with the laws at issue is that the licensed dealers whose sales
to 18- to 20-year-olds are the subject of the challenged regulations are not connected to the
incidence of crime Congress sought to control. It is not enough to target guns generally
and argue that less access to guns means less crime, as this would justify almost any
restriction and eviscerate the Second Amendment. In Craig, the government could not
Bureau of Justice Statistics, Criminal Victimization, 2019, at 21, 45 (2019), (saved
69
as ECF opinion attachment).
70
Cf. INSTITUTE OF MEDICINE AND NATIONAL RESEARCH COUNCIL OF THE
NATIONAL ACADEMIES, PRIORITIES FOR RESEARCH TO REDUCE THE THREAT OF FIREARM-
RELATED VIOLENCE 15 (Alan I. Leshner et al. eds., 2013) (“Almost all national survey
estimates indicate that defensive gun uses by victims are at least as common as offensive
uses by criminals.”).
72
merely contend that access to alcohol generally led to drunk driving by men to justify a
sex-based restriction on low-alcohol beer purchases. 429 U.S. at 203. Instead, the Court
was concerned that no objective evidence purported to “measure the use and dangerousness
of 3.2% beer as opposed to alcohol generally.” Id. The government needed to connect the
low-alcohol beer to drunk driving to justify the disparate treatment. Id. at 202–03. So too
here. Access to guns through licensed dealers—rather than access to handguns generally—
must be sufficiently connected to 18- to 20-year olds’ use of those firearms to commit
violence. Yet neither the Congressional Record nor amici’s evidence can draw this
connection, further undermining any claim to a reasonable fit.
In its congressional findings, Congress concluded that concealable firearms had
been “widely sold by federally licensed importers and dealers to emotionally immature, or
thrill-bent juveniles and minors prone to criminal behavior,” which caused an increase in
crime. Pub. L. No. 90–351, tit. IV, § 901(a)(6), 82 Stat. at 226; see also id. § 901(a)(3), 82
Stat. at 225. 71 The basis for that conclusion appears to be the hearing testimony of IRS
71
The dissent attempts to add several new congressional justifications for the
challenged restrictions. First, the dissent pulls several quotes from the broad legislative
history that reflect a general concern about suicides. Dissenting Op. at 111–13, 120, 136–
37. But those concerns were not tied to the provisions at issue here or to 18- to 20-year-
olds generally. See, e.g., 109 Cong. Rec. 13,946, 13,948 (statement of Sen. Dodd)
(referring to general suicide rates to support an early version of the bill that did not apply
to those ages 18 to 20). Compare 114 Cong. Rec. 12,305 (statement of Sen. Dodd)
(comparing national suicide rates to support the bill generally), with id. at 12,309
(discussing only crime in relation to the challenged provision). Second and similarly, the
dissent argues that “Congress was also concerned with simple gun accidents and the toll
they took on young people.” Dissenting Op. at 112. Yet the only evidence the dissent can
muster is a general statement about accidental tragedies in support of a mail-order ban and
a single anecdote by an officer about a 20-year-old injuring himself by striking a handgun
73
Commissioner Sheldon Cohen. During one hearing, Commissioner Cohen stated that
“[t]he vast majority, in fact, almost all of these firearms, are put into the hands of juveniles
by importers, manufacturers, and dealers who operate under licenses issued by the Federal
Government.” Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means,
89th Cong. 31 (1965) (testimony of Sheldon S. Cohen); see also Federal Firearms Act:
Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the S. Comm. on the
Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon S. Cohen). The government and
amici rely on this statement to connect guns bought from licensed dealers to crimes
committed by young adults. But there are several problems with this line of reasoning.
First, Commissioner Cohen’s testimony notes that “almost all” firearms in the hands
of minors—not that “almost all” guns used by minors to commit violent crime—came from
a licensed dealer. Cohen only discusses access to firearms generally, which tells us little
about the connection between the guns minors bought from licensed dealers and the guns
minors use in crime.
Second, his testimony could be read to make the point that “almost all” of the
firearms have, at some point, come from federally licensed “importers, manufacturers, and
dealers,” even if indirectly. That fact, while true, does little to show the regulations are a
reasonable fit to the goal of reducing gun violence. Most guns, at some point, come from
with a hatchet to discharge it. Dissenting Op. at 112 (citing S. Rep. No. 88-1340, at 17
(1964)); see also S. Rep. No. 88-1340, at 1, 12, 27 (1964). Congress justified the
challenged provisions based on violent crime committed by young adults and the desire to
increase parental oversight. We may not now say that Congress had broader justifications
by pointing to general statements about an omnibus crime bill.
74
a manufacturer whether they are later sold on the black market or by a licensed dealer. So
read, this statement provides no support for a link between handgun purchases directly
from licensed dealers and gun violence committed by young adults. So this reading of
Cohen’s statement is far too broad to tell us anything meaningful.
The only way Commissioner Cohen’s statements could support this causal link is if
he meant that “almost all” firearms that (1) are used by minors to commit crimes (2) were
directly sold to those minors by “importers, manufacturers, and dealers.” But nothing in
the Congressional Record says that, and Commissioner Cohen’s statements fall
considerably short of supporting such a contention.
To begin, while the IRS regulated licensed dealers, this information seems beyond
Commissioner Cohen’s experience. He was not in law enforcement, did not know from
experience where guns used in crimes come from, and presented no studies or expertise
from law enforcement to support his contention. Federal Firearms Act: Hearings Before
the H. Comm. on Ways and Means, 89th Cong. 31 (1965) (testimony of Sheldon S. Cohen).
Interestingly, Commissioner Cohen did cite studies and the experiences of law enforcement
to support many of his other statements, but he was brief and conclusory in his contention
that almost all guns in the hands of minors came from licensed dealers. Id. While the
studies sought in Craig may not always be necessary, one person’s unsupported, inexpert,
and conclusory testimony is not enough to establish a link between licensed dealers and
gun crimes.
It is true that we sometimes give weight to Congress’s “predictive judgments” under
Turner Broadcasting System Inc. v. FCC, 512 U.S. 622, 665–66 (1994). But this does not
75
mean that we should blindly abdicate our obligation to review Congress’s actions under
heightened scrutiny. Indeed, as we have made clear “[o]ur obligation is simply ‘to assure
that, in formulating its judgments, [the legislature] has drawn reasonable inferences based
on substantial evidence.’” Kolbe, 849 F.3d at 140 (emphasis added) (quoting Turner, 512
U.S. at 666). As Turner explained, “deference afforded to legislative findings does ‘not
foreclose our independent judgment of the facts bearing on an issue of constitutional law.’”
512 U.S. at 666 (quoting Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989));
see also Moore, 702 F.3d at 942 (noting that the “legislative facts” used to determine the
constitutionality of statutes do “not present factual questions for determination in a trial”
but are instead questions of law that judges resolve outside the normal strictures of
summary judgment or a motion to dismiss).
Congress’s conclusion depends on Commissioner Cohen’s testimony, which itself
is conclusory and rests on no evidence. But the government “must supply actual, reliable
evidence,” such as empirical studies, not mere “speculation” even if facially reasonable.
Ezell, 651 F.3d at 709; see also Tyler, 837 F.3d at 694. Yet all the government offers to
connect licensed dealers to young-adult crime is a conclusory finding by Congress based
on a conclusory statement from someone who is not an expert on this issue. That is not
“substantial evidence,” and it is not due deference. Turner, 512 U.S. at 666. Congress
may not pass intermediate scrutiny by relying on unsupported conclusory testimony to
justify its desired outcome. As the statements are merely conclusory, they are owed no
special deference, lest we edge perilously close to rational-basis review, a standard Heller
prohibits.
76
Furthermore, one of the contemporary studies provided by amici affirmatively
undermines the connection between handguns bought from licensed dealers and violent
crime. 72 That study reflects self-reporting from 253 inmates convicted of offenses
committed with any firearm. Vittes et al., supra note 61, at 26–31. Of those inmates,
13.4% claimed to have bought the firearm used to commit the crime from a gun store or
pawn shop. Id. at 30. And only 11.8% of inmates in the study obtained their gun from that
source legally. Id. 73 But unlike another study conducted by the Bureau of Justice Statistics,
this study does not appear to account for whether the reported gun store or pawn shop was
licensed or whether the purchase was made under the inmate’s own name. A Bureau of
Justice Statistics study suggests that 1.9% of all prisoners possessing a firearm bought it
from a retailer, and 7–8% of inmates who possessed a firearm during their offense bought
the gun under their own name from a licensed firearm dealer while 1–2% used another
name at the licensed dealer and 1–2% bought the gun from an unlicensed seller at a retail
72
Amici cite the study for the proposition that a minimum legal age of 21 for
purchasing firearms would have prohibited 17% of the offenders from obtaining firearms
when their crimes were committed, a finding that “underscore[d] the importance of
minimum-age restrictions.” J.A. 209–10 (quoting Vittes et al., supra note 61, at 29–30).
But both the study’s finding and the cited quote expressly relate to laws banning
possession, not the purchase, of all firearms by those under 21. Vittes et al., supra note 61,
at 30 (“These findings underscore the importance of minimum-age restrictions for firearms
possession and disqualifications for serious offences committed as juveniles.” (emphasis
added)).
73
Of the 253 inmates surveyed, only 34 bought a gun from a licensed dealer. Of
those 34, 4 did so illegally, and 30 did so legally. So 11.8% of the surveyed inmates (30
divided by the total sample size of 253) legally bought a firearm from a licensed dealer to
commit their crime. Vittes et al., supra note 61, at 30.
77
source. 74 As a result, very few inmates of any age bought the firearm used at licensed
dealers generally, much less legally.
Both studies substantially undermine Commissioner Cohen’s claim that “[t]he vast
majority, in fact, almost all” firearms in the hands of minors come from licensed dealers.
Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means, 89th Cong. 31
(1965) (testimony of Sheldon S. Cohen). Instead, these studies show that few guns used
in crimes come from licensed dealers and those guns are rarely transferred from the dealer
directly to the criminal. The majority come from friends and family, the black market, the
street, or some other unlicensed source. 75 Commissioner Cohen’s statement was already
insufficient to support the connection between licensed dealers selling firearms to minors
and minors using those firearms to commit crimes, and these studies show that his
contentions do not have legs to stand on.
This defect raises an under-inclusivity problem. While under-inclusivity matters
much less than over-inclusivity, as Congress does not have to combat every facet of a
problem at once, a law that so under-inclusively addresses the government’s interest by
74
Bureau of Justice Statistics, Source and Use of Firearms Involved in Crimes:
Survey of Prison Inmates, 2016, at 1–2, 7–9 (2019), (saved as ECF opinion attachment).
75
Amici’s study shows that 34% of offenders received their guns from family
members or friends and over 30% received them from the black market. Vittes et al., supra
note 61, at 29–30. The Bureau of Justice Statistics study shows that the most common
source (43%) of guns used to commit crimes was off-the-street or the underground market,
6.4% were stolen, and 17.4% came from other sources such as straw purchasers or the
location of the crime. Only 10% came from a retail source, including the secondary market,
and only 8.2% came from a licensed dealer. Bureau of Justice Statistics, Source and Use
of Firearms Involved in Crimes: Survey of Prison Inmates, 2016, at 7–8 (2019), (saved as
ECF opinion attachment).
78
targeting one of the least problematic avenues of purchasing a handgun raises serious
questions about whether the law actually furthers that interest. Compare Buckley v. Valeo,
424 U.S. 1, 105 (1976), with Nat’l Inst. of Fam. & Life Advoc. v. Becerra, 138 S. Ct. 2361,
2376–77 (2018). For example, in Sorrell v. IMS Health Inc., 564 U.S. 552, 572–73 (2011),
the Supreme Court found that a restriction on sharing prescriber information was too
narrow to further the interest of physician confidentiality because it allowed the
information to be given to anyone, just not for marketing purposes. The Court noted that
a broader “more coherent” policy might withstand scrutiny, but the narrowness of the law
as it stood burdened rights without meaningfully furthering the government’s stated
interests. Id.The same is true here. At most, amici’s study suggests that 11.8% of inmates who
used guns to commit crimes bought them legally from licensed dealers. But even closing
off access to licensed dealers does not mean that the 11.8% would no longer obtain guns,
as they would likely move to unregulated markets, like most other criminals, without a
background check or other safety measures. In fact, the study itself concludes that
“criminals avoid the regulated gun market of licensed sellers and prefer the largely
unregulated market involving unlicensed sellers . . . . The lack of regulation of firearm sales
by unlicensed sellers is likely to significantly limit the government’s ability to keep
firearms from prohibited individuals.” Vittes et al., supra note 61, at 30. Indeed, only 20%
of inmates who could legally purchase a weapon from a licensed dealer chose that avenue
rather than another more clandestine route. Id. Even aside from Commissioner Cohen’s
testimony, these studies undermine any argument that there is a connection between
79
licensed dealers and firearms used in crime. This is especially true for otherwise legally
purchased firearms from licensed dealers, which is exactly what this law bans for 18- to
20-year-olds.
We previously relied on amici’s study to conclude that “very few offenders
purchased a weapon from a federal firearms dealer, in large part because of the
background-check requirement.” Hosford, 843 F.3d at 169. There, we upheld a licensing
regime in part because the government established that pushing buyers into a regulated
market reduced crime because the regulated market requires background checks, tracking,
oversight, and more. Id. Yet strangely, the government here wants to push 18- to 20-year-
olds away from licensed dealers and into the unregulated markets where most guns used
for criminal purposes are obtained and where government oversight is more difficult.
Congress justified these restrictions to increase parental oversight of firearm
purchases in order to reduce youth criminality, but Congress and the government have no
evidence that parental oversight is effective, much less preferable, to the protections
provided by licensed dealers. See Pub. L. No. 90-351, tit. IV, § 901(a)(3), 82 Stat. at 225;
S. Rep. No. 90-1097, at 79; 114 Cong. Rec. 12,309 (statement of Sen. Dodd). In fact,
Congress went to pains to assure the country that minors could still have various guns and
possess handguns through other means. See 114 Cong. Rec. 12,309 (statement of Sen.
Dodd); S. Rep. No. 90-1097, at 79; S. Rep. No. 89-1866, at 58; Pub. L. No. 90–351, tit.
IV, § 901(b), 82 Stat. at 226. And the ban “perversely assures that when such young adults
obtain handguns, they do not do so through licensed firearms dealers, where background
checks are required, see 18 U.S.C. § 922(t), but they go to the unregulated market.” Nat’l
80
Rifle Ass’n, 714 F.3d at 346 (Jones, J., dissenting). These laws leave youth with three
options: (1) receive their gun as a gift from their parents or others (not an option for many),
(2) buy it privately (this law does not provide parental oversight of those sales), or (3)
obtain it illegally. This incentivizes young adults to get guns in less regulated ways, all
without assuring parental input. So these laws seem to do little to increase parental
guidance while pushing youth to unlicensed markets without background checks.
Finally, it is unclear whether these laws have been effective at all. While we
recognize that it would be difficult to determine the effectiveness of these laws now,
Congress could have considered the effectiveness of similar state laws before passing these
laws. In fact, one study found that these laws did not influence youth crime rates.76
Amici’s evidence fares no better. Their primary study shows a decrease in youth suicides
and accidental deaths after the massive 1994 Crime Bill that, in part, banned firearm
possession for those under 18. 77 But that study has no nexus to 18- to 20-year-old adults.
It is hard to draw any conclusions on the effect of a handgun-purchase ban from this narrow
study of a broader ban. And the study admits that state laws that prohibit handgun
possession for those under a certain age have been ineffective. Gius, supra note 62, at 169;
76
See Gary Kleck, Regulating Guns Among Young Adults, 44 AM. J. CRIM. JUST.
689, 690–704 (2019) (analyzing data on the effectiveness of the Gun Control Act of 1968
and various state laws and finding them ineffective).
77
Gius, supra note 62, at 173; see also Monika K. Goyal et al., State Gun Laws and
Pediatric Firearm-Related Mortality, 144 PEDIATRICS No. 2, at 3 (2019) (reviewing
stricter state laws, many not dealing with age); Webster et al., supra note 62, at 598 (finding
that state laws raising the minimum age for handgun purchases to 21 were linked to a 9%
decline in firearm suicide rates among 18-to-20-year-olds).
81
see also Daniel W. Webster et al., The Case for Gun Policy Reforms in America 8 (2012)
(noting that evaluations of laws setting a minimum legal age for handgun purchases or
possession “have failed to find any beneficial effects of these laws on either juvenile
homicide victimization or youth suicide”). The study also tells us nothing about crime and
very little about the cause of the decrease in suicides, as it admits that there were many
other gun-control regulations that could have been contributing causes. Gius, supra note
622, at 173. At best, amici’s study shows a potential correlation between one part of a
much broader law and fewer suicides and accidental deaths decades after the law was
passed. And “the share of violent crime arrests among the 18- to 20-year age group has
increased, and the use of guns by that group is still disproportionately high.” Nat’l Rifle
Ass’n, 714 F.3d at 346 (Jones, J., dissenting). Neither the government nor amici can show
that the burden the challenged laws impose on 18- to 20-year-olds’ rights has led to any
meaningful or measurable positive effects. This highlights the lack of a reasonable
connection between licensed dealers and gun crimes.
These laws are both over- and under-inclusive in contravention of the principles
espoused in Craig. As a result, the laws lack the reasonable fit required to pass intermediate
scrutiny.
* * *
Those of good faith on both sides of the gun debate wish to protect lives and uphold
individual rights. We appreciate the seriousness of gun violence in this country and
applaud Congress’s laudable desire to curb senseless violence. But we also recognize that
the Second Amendment embodies a fundamental, pre-existing right that enables “the
82
people” to preserve their own life, liberty, and property. Striking a balance between those
interests is a difficult exercise that draws intense passions on both sides. And that is for
good reason.
But while Congress—or judges—may have struck a different balance long after
ratification, that role is foreclosed to us by the balance that the Founders chose. We cannot
now second-guess or undermine their choice. History makes clear that 18- to 20-year-olds
were understood to fall under the Second Amendment’s protections. Those over 18 were
universally required to be part of the militia near the ratification, proving that they were
considered part of “the people” who enjoyed Second Amendment rights, and most other
constitutional rights apply to this age group. And Congress may not restrict the rights of
an entire group of law-abiding adults because a minuscule portion of that group commits a
disproportionate amount of gun violence. Congress’s failure to connect handgun purchases
from licensed dealers to youth gun violence only serves to highlight the law’s “unduly
tenuous ‘fit’” with the government’s substantial interests. Craig, 429 U.S. at 202.
Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged
laws impermissibly burden those rights. As a result, we vacate the district court’s grant of
the motion to dismiss, reverse the denial of summary judgment, and remand for further
proceedings.
VACATED, REVERSED, AND REMANDED
83
Appendix 1: Pre-Ratification Militia Laws
Colony/State Age Citations
An Act for Forming, Regulating, and Conducting the Military
Connecticut 16 Force of this State (1786), in ACTS AND LAWS OF THE STATE
OF CONNECTICUT, IN AMERICA 144, 144, 150 (1786).
An Act for Establishing a Militia Within this State §§ 2, 5
Delaware 18
(1778).
An Act for Regulating the Militia of the State, and for
Georgia 16 Repealing the Several Laws Heretofore Made for that Purpose
(1786).
Maryland 16 An Act to Regulate the Militia § 2 (1777).
An Act for Regulating and Governing the Militia of the
Commonwealth of Massachusetts, and for Repealing All Laws
Heretofore Made for that Purpose § 2 (1785), in THE
Massachusetts 16 PERPETUAL LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS, FROM THE COMMENCEMENT OF THE
CONSTITUTION, IN OCTOBER 1780, TO THE LAST WEDNESDAY
IN MAY, 1789, at 338, 339 (1789).
An Act for Forming and Regulating the Militia Within this
State, and for Repealing All the Laws Heretofore Made for that
Purpose (1786), in THE LAWS OF THE STATE OF NEW-
HAMPSHIRE, TOGETHER WITH THE DECLARATION OF
New Hampshire 16 INDEPENDENCE: THE DEFINITIVE TREATY OF PEACE BETWEEN
THE UNITED STATES OF AMERICA AND HIS BRITANNIC
MAJESTY: THE CONSTITUTION OF NEW-HAMPSHIRE, AND THE
CONSTITUTION OF THE UNITED STATES, WITH ITS PROPOSED
AMENDMENTS 356, 357 (1792).
An Act for the Regulating, Training, and Arraying of the
Militia, and for Providing More Effectually for the Defence and
Security of the State § 10 (1781), in ACTS OF THE FIFTH
GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY, AT A
SESSION BEGUN AT TRENTON ON THE 24TH DAY OF OCTOBER,
New Jersey 16
1780, AND CONTINUED BY ADJOURNMENTS 39, 42 (1781); An
Act for the Better Regulating the Militia § 1 (1777), in ACTS OF
THE GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY, AT A
SESSION BEGUN AT PRINCETON ON THE 27TH DAY OF AUGUST
1776, AND CONTINUED BY ADJOURNMENTS 26, 26 (1777).
An Act to Regulate the Militia (1786), in 1 LAWS OF THE STATE
OF NEW YORK, COMPRISING THE CONSTITUTION, AND THE
New York 16 ACTS OF THE LEGISLATURE, SINCE THE REVOLUTION, FROM
THE FIRST TO THE FIFTEENTH SESSION, INCLUSIVE 227, 227
(1792).
84
North Carolina 16 An Act to Establish a Militia in this State § 2, (1777), in ACTS
OF ASSEMBLY OF THE STATE OF NORTH CAROLINA 1, 1 (1777).
An Act to Regulate the Militia of the Commonwealth of
Pennsylvania § 2 (1777), in 9 THE STATUTES AT LARGE OF
Pennsylvania 18 PENNSYLVANIA FROM 1682 TO 1801, at 75, 77 (1903); An Act
for the Regulation of the Militia of the Commonwealth of
Pennsylvania § 3 (1780), in 10 THE STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, at 144, 146 (1904).
The Act for Better Forming, Regulating and Conducting the
Military Force of this State (1779), in AT THE GENERAL
ASSEMBLY OF THE GOVERNOR AND COMPANY OF THE STATE
OF RHODE-ISLAND, AND PROVIDENCE-PLANTATIONS, BEGUN
Rhode Island 16 AND HOLDEN AT SOUTH-KINGSTOWN, WITHIN AND FOR THE
STATE AFORESAID, ON THE LAST MONDAY IN OCTOBER, IN THE
YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND
SEVENTY-NINE, AND IN THE FOURTH YEAR OF INDEPENDENCE
29, 29.
An Act for the Regulation of the Militia of this State (1782), in
ACTS PASSED AT A GENERAL ASSEMBLY, BEGUN AND HOLDEN
South Carolina 16
AT JACKSONSBURGH, IN THE STATE OF SOUTH-CAROLINA 20,
20.
An Act Regulating the Militia of the State of Vermont (1787),
Vermont 16 in STATUTES OF THE STATE OF VERMONT, PASSED BY THE
LEGISLATURE IN FEBRUARY AND MARCH 1787, at 94, 94 (1787).
An Ordinance for Raising and Embodying a Sufficient Force,
for the Defence and Protection of this Colony (1775), in 9
WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING
A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE
FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9,
16 (1775); 16–17 (1821); An Act to Amend and Reduce into One Act, the
Virginia
18 (1785) Several Laws for Regulating and Disciplining the Militia, and
Guarding Against Invasions and Insurrections § 3 (1785), in 12
WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING
A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE
FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9,
10 (1823).
85
Appendix 2: Post-Ratification Militia Laws
Colony/State Age Citations
An Act for Forming and Conducting the Military Force of this
State, Conformable to the Act of Congress, Passed the Eighth
Day of May, A.D. 1792, Which Is as Follows:—“An Act More
Connecticut 18 Effectually to Provide for the National Defence, by
Establishing an Uniform Militia Throughout the United States”
§ 1 (1792), in ACTS AND LAWS OF THE STATE OF CONNECTICUT
IN AMERICA 298, 298–99 (1796).
An Act for Establishing the Militia in this State § 1 (1793), in 2
LAWS OF THE STATE OF DELAWARE FROM THE FOURTEENTH
Delaware 18 DAY OF OCTOBER, ONE THOUSAND SEVEN HUNDRED, TO THE
EIGHTEENTH DAY OF AUGUST, ONE THOUSAND SEVEN
HUNDRED AND NINETY-SEVEN 1134, 1134 (1797).
An Act to Revise and Amend the Militia Law of this State, and
to Adapt the Same to the Act of the Congress of the United
States, Passed the Eighth Day of May, One Thousand Seven
Hundred and Ninety–Two, Entitled “An Act More Effectually
Georgia 18
to Provide for the National Defence, by Establishing and
Uniform Militia Throughout the United States” § 9 (1792), in
DIGEST OF THE LAWS OF THE STATE OF GEORGIA 348, 350
(1802).
An Act to Regulate and Discipline the Militia of this State
Maryland 18 pmbl. (1793), in LAWS OF MARYLAND, NOVEMBER SESSION
1793 (1793).
An Act for Regulating and Governing the Militia of the
Commonwealth of Massachusetts, and for Repealing All Laws
Heretofore Made for that Purpose; Excepting an Act Intitled
“An Act for Establishing Rules and Articles for Governing the
Troops Stationed in Forts and Garrisons, Within this
Massachusetts 18 Commonwealth, and also the Militia, When Called into Actual
Service” § 2 (1793), in ACTS AND LAWS, PASSED BY THE
GENERAL COURT OF MASSACHUSETTS, BEGUN AND HELD AT
BOSTON, IN THE COUNTY OF SUFFOLK, ON WEDNESDAY THE
TWENTY-NINTH DAY OF MAY, ANNO DOMINI, 1793, at 289,
290 (1793).
An Act for Forming and Regulating the Militia Within This
State, and for Repealing All the Laws Heretofore Made for that
Purpose (1792), in THE LAWS OF THE STATE OF NEW
New Hampshire 18
HAMPSHIRE, PASSED AT A SESSION OF THE HONORABLE
GENERAL-COURT, BEGUN AND HOLDEN AT EXETER,
NOVEMBER 1972, at 441, 441 (1793).
86
An Act for Organizing and Training the Militia of this State § 4
New Jersey 18 (1792), in ACTS OF THE SEVENTEENTH GENERAL ASSEMBLY OF
THE STATE OF NEW JERSEY 824, 825 (1792).
An Act to Organize the Militia of this State (1793), in LAWS OF
New York 18 THE STATE OF NEW YORK, PASSED AT THE SIXTEENTH SESSION
OF THE LEGISLATURE 440, 440.
An Act for Establishing a Militia in this State § 1 (1786), in THE
LAWS OF NORTH-CAROLINA 18, 18 (amended by An Act to
Carry into Effect an Act of Congress, Entitled, “An Act More
Effectually to Provide for the National Defence, by
North Carolina 18
Establishing an Uniform Militia Throughout the United States,”
Also to Amend an Act, Passed at Fayetteville, in the Year One
Thousand Seven Hundred and Eighty Six, Entitled, “An Act for
Establishing the Militia in this State” (1793)).
An Act for the Regulation of the Militia of the Commonwealth
Pennsylvania 18 of Pennsylvania § 1 (1793), in THE STATUTES AT LARGE OF
PENNSYLVANIA FROM 1682 TO 1801, at 454, 455 (1909).
Rhode Island 18 *
An Act to Organize the Militia Throughout the State of South
Carolina, in Conformity with the Act of Congress (1794), in
ACTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY, OF THE
STATE OF SOUTH-CAROLINA, PASSED IN APRIL, 1794, at 1, 2
South Carolina 18
(1794) (evidencing a shift from the former militia age of 16
mandated in An Act for the Regulation of the Militia of this
State (1782), in ACTS PASSED AT A GENERAL ASSEMBLY OF
THE STATE OF SOUTH-CAROLINA, &C, 20, 20).
An Act, for Regulating and Governing the Militia of this State
§ 1 (1797), in 2 THE LAWS OF THE STATE OF VERMONT,
Vermont 18 DIGESTED AND COMPILED INCLUDING THE DECLARATION OF
INDEPENDENCE, THE CONSTITUTION OF THE UNITED STATES,
AND OF THIS STATE 122, 122 (1808).
Virginia 18 **
* The most relevant Founding-era law we could find from Rhode Island set the militia age
at 18 in 1794. An Act to Organize the Militia of this State (1794), in AT THE GENERAL
ASSEMBLY OF THE GOVERNOR AND COMPANY OF THE STATE OF RHODE-ISLAND AND
PROVIDENCE-PLANTATIONS, BEGUN AND HOLDEN BY ADJOURNMENT AT EAST-
GREENWICH, WITHIN AND FOR THE STATE AFORESAID, ON THE LAST MONDAY IN MARCH,
IN THE YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND NINETY-FOUR, AND OF
INDEPENDENCE THE EIGHTEENTH 14, 14–15 (1794) (reprinting the federal Militia Act and
organizing the militia in line with federal law setting the age at 18). Prior laws had set the
militia age at 16. The Act for Better Forming, Regulating and Conducting the Military
87
Force of this State (1779), in AT THE GENERAL ASSEMBLY OF THE GOVERNOR AND
COMPANY OF THE STATE OF RHODE-ISLAND, AND PROVIDENCE-PLANTATIONS, BEGUN AND
HOLDEN AT SOUTH-KINGSTOWN, WITHIN AND FOR THE STATE AFORESAID, ON THE LAST
MONDAY IN OCTOBER, IN THE YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND
SEVENTY-NINE, AND IN THE FOURTH YEAR OF INDEPENDENCE 29, 29; An Act, Regulating
the Militia in this Colony, in THE CHARTER, GRANTED BY HIS MAJESTY, KING CHARLES
II. TO THE GOVERNOR AND COMPANY OF THE ENGLISH COLONY OF RHODE-ISLAND AND
PROVIDENCE-PLANTATIONS, IN NEW-ENGLAND, IN AMERICA 179, 179 (1767).
** Preceding ratification, Virginia required 18-year-olds to join the militia and bring their
own arms. An Act to Amend and Reduce into One Act, the Several Laws for Regulating
and Disciplining the Militia, and Guarding Against Invasions and Insurrections § 3 (1785),
in 12 WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL
THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR
1619, at 9, 10, 12 (1823). This law also created a separate company for 18- to 25-year-
olds that trained more often than the rest of the militia. Id. § 3, in HENING, supra, at 14–
15. Following ratification, Virginia’s militia law did not mention age or equipment,
focusing more on the organization by county. An Act for Regulating the Militia of this
Commonwealth (1792), in A COLLECTION OF ALL SUCH ACTS OF THE GENERAL
ASSEMBLY OF VIRGINIA, OF A PUBLIC AND PERMANENT NATURE, AS ARE NOW IN FORCE
282, 282–90 (1803). But the act did not alter the age requirements set in 1785 and kept the
light company of 18- to 25-year-olds. Like many other statutes at the time, however,
Virginia’s law said that it was helping to “carry the [federal Militia Act] into effect.” Id.
§ 1, in A COLLECTION OF ALL SUCH ACTS, supra, at 282. And the federal Militia Act
required 18-year-olds to enlist and bring their own arms.
88
WYNN, Circuit Judge, dissenting:
Today, my good colleagues in the majority break new ground by invalidating a
modest and long-established effort to control gun violence. The majority holds that
Congress may not enact a law making 21 the minimum age to purchase handguns from
federally licensed gun dealers.
But the majority’s decision to grant the gun lobby a victory in a fight it lost on
Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the
proper role of the federal judiciary in our democratic system. Cf. Kolbe v. Hogan, 849 F.3d
114, 149–150 (4th Cir. 2017) (en banc) (Wilkinson, J., concurring) (arguing that because
“[n]o one really knows what the right answer is with respect to the regulation of firearms,”
we federal judges ought not “[d]isenfranchis[e] the American people on this life and death
subject” by arrogating to ourselves “decisions that have been historically assigned to other,
more democratic, actors”).
To be sure, the Second Amendment’s right to keep and bear arms is an exceptional
right, just not in the way the majority imagines. According to my colleagues, even though
all individual constitutional rights are subject to limitations, the Second Amendment risks
being relegated to a disfavored “second-class status.” Maj. Op. at 3.
While they are not alone in this concern, see, e.g., Silvester v. Becerra, 138 S. Ct.
945, 945 (2018) (Thomas, J., dissenting from denial of certiorari) (arguing that the Second
Amendment protects a “disfavored right” that lower courts have treated “cavalierly”), I do
not share it. Indeed, in a country that boasts a Congress, bench, bar, academy, and electorate
that are all attentive to the prerogatives of gun owners, where many may conceal their
89
weapons, 1 carry them openly, 2 or “stand their ground,” 3 and where civilian gun ownership
rates are second to none, 4 the majority’s second-class status concern is simply surreal. 5
No, the Second Amendment is exceptional not because it is uniquely oppressed or
imperiled, but rather because it is singularly capable of causing harm. As other courts have
recognized, while there are dangers inherent in other constitutionally protected rights—
1
At present, “[e]very state—as well as the District of Columbia—allows the
carrying of concealed weapons in some form.” Giffords Law Center to Prevent Gun
Violence (“Giffords”), Concealed Carry, https://giffords.org/lawcenter/gun-laws/policy-
areas/guns-in-public/concealed-carry/.
2
Giffords, Open Carry, https://giffords.org/lawcenter/gun-laws/policy-areas/guns-
in-public/open-carry/ (noting that “many states now place few or no restrictions on open
carry”).
3
Giffords, Stand Your Ground, https://giffords.org/lawcenter/gun-laws/policy-
areas/guns-in-public/stand-your-ground-laws/, (“A majority of states (30) have now
enacted Stand Your Ground laws applicable in all public places.”).
4
Aaron Karp, Estimating Global Civilian-Held Firearms Numbers: Briefing Paper,
Small Arms Survey, June 2018 at 4, http://www.smallarmssurvey.org/fileadmin/docs/T-
Briefing-Papers/SAS-BP-Civilian-Firearms-Numbers.pdf (establishing that the United
States has the highest rates of civilian possession of firearms, both in terms of absolute
numbers and in terms of the number of firearms per 100 residents, and that our nearest
peers on both fronts—India and Yemen, respectively—each come in a distant second).
5
Cf. Linda Greenhouse, Uncomfortable Timing for a Supreme Court Gun Fight,
N.Y. Times (Apr. 22, 2021), https://www.nytimes.com/2021/04/22/opinion/supreme-
court-gun-rights-second-amendment.html (“I’ve always been puzzled by the notion that
any limitation on the Second Amendment converts it into some sort of second-class right.
I can’t think of a constitutional right that the Supreme Court has interpreted as absolutely
unlimited.”).
90
like the rights to speak and assemble—the Second Amendment alone protects a direct and
lethal right to endanger oneself and others. 6
We are fortunate, then, that our courts have hitherto been careful to construe the
Second Amendment in a manner that gives the people latitude to try to control gun violence
through the democratic process. In the Fourth Circuit, as in nearly every other circuit, we
protect the individual right to keep and bear arms while honoring the public’s “right not to
be shot,” Lowy, supra, at 204, by applying a two-step analysis. 7
6
E.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (“The risk
inherent in firearms and other weapons distinguishes the Second Amendment right from
other fundamental rights that have been held to be evaluated under a strict scrutiny test,
such as the right to marry and the right to be free from viewpoint discrimination, which
can be exercised without creating a direct risk to others.”); Heller v. Dist. of Columbia, 801
F.3d 264, 283 (D.C. Cir. 2015) (“Heller III”) (Henderson, J., concurring in part and
dissenting in part) (“Although our Second Amendment precedent draws on First
Amendment and voting-rights cases, the right to bear arms is meaningfully different from
the rights to speak and vote. . . . [T]he reality of gun violence means our constitutional
analysis should incorporate deference to the legislature.” (internal citations omitted));
Piszczatoski v. Filko, 840 F. Supp. 2d 813, 816 (D.N.J. 2012) (“[The Second Amendment]
privilege is unique among all other constitutional rights to the individual because it permits
the user of a firearm to cause serious personal injury—including the ultimate injury,
death—to other individuals, rightly or wrongly.”), aff’d sub nom. Drake v. Filko, 724 F.3d
426 (3d Cir. 2013); see also Jonathan Lowy & Kelly Sampson, The Right Not to Be Shot:
Public Safety, Private Guns, and the Constellation of Constitutional Liberties, 14 Geo. J.L.
& Pub. Pol’y 187, 194 (2016) (“No other right exposes the public to such grave risks of
lethal, imminent harm.”).
7
On a public right to live—or “right not to be shot,” see Lowy, supra, at 204–05.
On the ubiquity of analyzing Second Amendment challenges through a two-step
framework, see Maj. Op. at 11 n.5 (collecting cases). The Eighth Circuit, which has not
expressly addressed the issue, appears to be the lone holdout in not adopting the Second
Amendment two-step inquiry. But see United States v. Adams, 914 F.3d 602, 607–08 (8th
Cir. 2019) (Kelly, J., concurring in the judgment) (faulting the majority for not applying
the “sensible, two-pronged approach” employed by the other circuits for analyzing gun
rights claims).
91
Under this approach, we first ask “whether the challenged regulation ‘burdens or
regulates conduct that comes within the scope of the Second Amendment.’” Harley v.
Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021) (quoting United States v. Chester, 628 F.3d
673, 680 (4th Cir. 2010)). Then, “[i]f the challenged regulation satisfies this first prong, or
if we assume without deciding that the regulation meets this requirement, we turn to
perform under our second prong a ‘means-end’ review, in which we consider the regulation
under the appropriate level of constitutional scrutiny.” Id. (quoting Chester, 628 F.3d at
680).
We have also applied a “simplifie[d]” version of this analysis for “prohibitions
deemed ‘presumptively lawful’” by the Supreme Court in District of Columbia v. Heller,
554 U.S. 570 (2008). United States v. Hosford, 843 F.3d 161, 165 (4th Cir. 2016). As
discussed below, Heller deemed longstanding conditions and qualifications on the
commercial sale of firearms to be presumptively lawful, and our circuit precedent in United
States v. Hosford establishes that facial challenges against such regulations must fail.
Purporting to apply our two-step approach, the majority breaks new ground and
creates a circuit split by striking down a modest effort at gun control passed more than fifty
years ago that does not prevent young adults from purchasing, possessing, or using
handguns.
Conversely, I would hold that the challenged provisions are facially valid
longstanding conditions and qualifications on the commercial sale of arms. In the
alternative, I would assume on the first prong of our two-part approach that the challenged
provisions burden conduct protected by the Second Amendment. I would then join the Fifth
92
Circuit in holding on prong two that the challenged provisions easily survive intermediate
scrutiny.
Because the majority holds otherwise, I respectfully dissent. In doing so, I consign
neither “the Second Amendment [n]or 18- to 20-year-olds to a second-class status.” Maj.
Op. at 3.
I.
In Heller, the Supreme Court recognized the “right of law-abiding, responsible
citizens to use arms in defense of hearth and home.” 554 U.S. at 635. However, Heller
itself emphasized that it was “not meant ‘to clarify the entire field’ of Second Amendment
jurisprudence,” Hosford, 843 F.3d at 165 (quoting Heller, 554 U.S. at 635), and that it
should not “be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms,” Heller, 554 U.S. at 626–27. Heller
dubbed these sorts of firearm restrictions “presumptively lawful” and explained that it
identified these measures “only as examples” and that its “list d[id] not purport to be
exhaustive.” Id. at 627 n.26.
This was no idle prattle. Cf. Carlton F.W. Larson, Four Exceptions in Search of a
Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372
(2009) (criticizing Heller’s discussion of presumptively lawful regulatory measures as “ad
hoc” and “patchy” but nonetheless acknowledging that to the extent the discussion was
93
dicta, it was “dicta of the strongest sort”). In fact, in its only significant post-Heller Second
Amendment case, McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court
“repeat[ed] [its] assurances” that its holding in Heller “did not cast doubt on such
longstanding regulatory measures as . . . [‘]laws imposing conditions and qualifications on
the commercial sale of arms.’” 561 U.S. at 786 (plurality opinion) (quoting Heller, 554
U.S. at 626–27).
As the majority recognizes, we have fashioned “a more streamlined analysis” for
Second Amendment challenges to regulatory measures deemed presumptively lawful in
Heller. Maj. Op. at 13–14. Specifically, we have held that facial challenges to such
measures fail. 8 Hosford, 843 F.3d at 166 (“Hosford’s facial challenge fails if the
prohibition against unlicensed firearm dealing is the type of regulation deemed
‘presumptively lawful’ in Heller.”). Because Plaintiff Natalia Marshall 9 brought a facial,
8
In dicta, the majority suggests that a facial challenge to a presumptively lawful
measure will not always fail. See Maj. Op. at 13–14 (“If a law falls within [Heller’s list of
presumptively lawful measures], we conduct a more streamlined analysis. This often
effectively ends the inquiry and upholds the law as facially valid. But not always.” (internal
citations omitted)). In support of that statement, the majority cites to our precedent in
Hamilton v. Pallozzi, 848 F.3d 614, 624–25 (4th Cir. 2017), and United States v. Pruess,
703 F.3d 242, 245–46 (4th Cir. 2012). But it is unclear how these cases, both of which
involved as-applied challenges to felon-in-possession laws, support the majority’s position.
To the extent that the majority believes a facial, rather than as-applied, challenge to a
presumptively lawful measure can succeed, that belief squarely contradicts Hosford. See
Hosford, 843 F.3d at 167 (“[T]he prohibition against unlicensed firearm dealing is a
longstanding condition or qualification on the commercial sale of firearms. As a result,
Hosford’s facial Second Amendment challenge fails.”). To be sure, plaintiffs can still make
as-applied challenges to presumptively lawful measures, id., but no such challenge was
brought in this case.
9
As the majority finds, this case is moot as to Plaintiff Tanner Hirschfeld.
94
and not an as-applied challenge, we can therefore resolve this case quickly if we determine
that the challenged provisions are presumptively lawful as (1) longstanding (2) conditions
and qualifications (3) on the commercial sale of arms. 10 Id. at 166–67.
Here, the challenged provisions indisputably cover “only the commercial sale of
firearms.” Id. at 166. Young adults aged 18 to 20 may still possess and use handguns, may
still receive handguns as gifts, and can even purchase handguns through unlicensed, but
otherwise legal, private sales. 11 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 700 F.3d 185, 189–90 (5th Cir. 2012) (“NRA”). In other
words, in enacting the challenged provisions, Congress was careful not to burden use,
possession, or non-commercial sales. 12
The challenged provisions are also longstanding. Importantly, “a regulation can be
deemed ‘longstanding’ even if it cannot boast a precise founding-era analogue.” NRA, 700
F.3d at 196–97, 202–03 (collecting authorities and concluding that the same provisions at
10
While the district court conducted both a facial and an as-applied analysis, “[w]e
look to the scope of the relief requested to determine whether a challenge is facial or as-
applied in nature.” AFSCME Council 79 v. Scott, 717 F.3d 851, 862 (11th Cir. 2013) (citing
Doe v. Reed, 561 U.S. 186, 194 (2010)). Here, Marshall requested a broad declaration that
the challenged provisions were unconstitutional and requested that they be enjoined
generally, not simply as to her. Her claim was thus facial in nature. The majority agrees.
11
And, of course, they can still purchase and use long guns. See 18 U.S.C.
§ 922(b)(1).
12
While every sale is “commercial” in the sense that an exchange of value occurs,
we distinguish between commercial sales—that is, sales made by those who “regularly sell
firearms, not owned for personal use, in the course of trade or business for the principal
purpose of profit”—and non-commercial sales, that is, infrequent, non-professional sales
as may occur, for example, between friends. Hosford, 843 F.3d at 166.
95
issue in this case are “consistent with [the] longstanding, historical tradition” of “age-based
restrictions on the purchase of firearms”). Indeed, much more recent regulations can
qualify. See Hosford, 843 F.3d at 166–67 (finding a licensing requirement for firearm
dealers to be “longstanding” when it had been required by the federal government since
1938); Drake, 724 F.3d at 431–34 (relying on late nineteenth- and early twentieth-century
authorities to conclude that a New Jersey law requiring applicants to demonstrate a
“justifiable need” to obtain a permit to publicly carry a handgun was a “longstanding”
regulation); Silvester v. Harris, 843 F.3d 816, 818 (9th Cir. 2016); id. at 831 (Thomas, C.J.,
concurring) (contending that California’s ten-day waiting period to buy a gun was
“longstanding” because it had been on the books in some form since 1923).
This rule follows from Heller, which listed “prohibitions on the possession of
firearms by felons” as examples of the type of “longstanding” regulations that it did not
“cast doubt on.” Heller, 554 U.S. at 626–27. This is an illustrative example because, as the
D.C. Circuit observed in Heller II, “states did not start to enact [prohibitions on the
possession of firearms by felons] until the early 20th century.” Heller v. Dist. of Columbia,
670 F.3d 1244, 1253 (D.C. Cir. 2011) (citing C. Kevin Marshall, Why Can’t Martha
Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009)). Furthermore, “Heller
considered firearm possession bans on . . . the mentally ill to be longstanding” despite the
fact that the “current version[] of th[is] ban[] [is] of mid-20th century vintage,” dating back
to 1968. NRA, 700 F.3d at 196–97 (citing United States v. Skoien, 614 F.3d 638, 640–41
(7th Cir. 2010) (en banc) (explaining that the federal ban on possession by the mentally ill
was passed in 1968)).
96
Here, the challenged provisions are longstanding because they, just like the federal
ban on possession of firearms by the mentally ill, were passed in 1968—over fifty years
ago—and because similar provisions making 21 the minimum age to purchase or use
certain firearms have been commonplace for more than a century. As the Fifth Circuit noted
in NRA, “by the end of the 19th century, nineteen States and the District of Columbia had
enacted laws expressly restricting the ability of persons under 21 to purchase or use
particular firearms, or restricting the ability of ‘minors’ to purchase or use particular
firearms while the state age of majority was set at age 21.” Id. at 202. Furthermore, by
1923, “twenty-two States and the District of Columbia had made 21 the minimum age for
the purchase or use of particular firearms.” Id. Considering this pedigree, the challenged
provisions are sufficiently longstanding. 13
The question of whether the challenged provisions constitute “conditions and
qualifications” is somewhat trickier because the Supreme Court “did not explain what
precisely it meant by the phrase.” Silvester v. Harris, 41 F. Supp. 3d 927, 962 (E.D. Cal.
13
The majority contends that the Fourteenth Amendment was enacted, in part, to
protect the rights of recently emancipated slaves to bear arms in the face of southern efforts
to disarm them and that we should therefore be cautious about using “Civil-War-era state
laws that restricted the right to bear arms as evidence of the scope of the Second
Amendment right at the time of the Founding.” Maj. Op. at 24. However, here, I merely
seek to understand whether laws restricting the ability of young adults to buy guns are
“longstanding.” The existence of antebellum and Reconstruction-era laws regulating the
use of firearms by young adults is undoubtedly relevant to this inquiry. Furthermore, while
I leave for another day the question of what—if any—role America’s racial history ought
to play in our Second Amendment jurisprudence, I am not convinced that the Second
Amendment is best understood as a guarantor of the rights and liberties of freedmen and
their descendants. See generally Carol Anderson, The Second: Race and Guns in a Fatally
Unequal America (2021).
97
2014), rev’d on other grounds, 843 F.3d 816. Fortunately, the terms “conditions” and
“qualifications” have uncontroversial common meanings. Silvester, 843 F.3d at 830
(Thomas, C.J., concurring). A condition “is [s]omething established or agreed upon as a
requisite to the doing or taking effect of something else” and a qualification is a “condition
precedent that must be complied with for the attainment of a status,” such as “for admission
to an office.” Id. (alteration in original) (quoting dictionary definitions). Thus, a condition
and qualification on the commercial sale of arms is simply a prerequisite or requirement
that a purchaser or seller must comply with before engaging in a commercial gun
transaction.
In Hosford, we further refined this definition by distinguishing such conditions and
qualifications—which, if they are also longstanding, are presumptively lawful—from
regulations “so prohibitive as to . . . functional[ly] prohibit[]” the sale of firearms. 843 F.3d
at 166. The challenged provision at issue in Hosford was a licensing scheme that required
a prospective firearm dealer to obtain a license by submitting an application, paying a fee,
establishing lawful premises for selling firearms, and being at least 21 years old. Id. In
upholding the scheme, we distinguished it from the functional prohibitions on the sale of
weapons discussed in two other cases. Id. (citing Illinois Ass’n of Firearms Retailers v.
City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014); Teixeira v. Cnty. of Alameda, 822
F.3d 1047 (9th Cir. 2016), rev’d on other grounds, 873 F.3d 670, 673 (9th Cir. 2017) (en
banc)).
The first, Illinois Association of Firearms Retailers, invalidated a Chicago law that
totally banned the sale and transfer of all firearms except by inheritance. 961 F. Supp. 2d
98at 930–931. In the second, a divided panel of the Ninth Circuit reasoned that a zoning
ordinance that flatly banned the sale of guns would be subject to stricter scrutiny than an
ordinance that merely regulated the location of gun stores. Teixeira, 822 F.3d at 1059–60.
However, both the majority and the partially dissenting judge agreed that the zoning
ordinance at issue—which prohibited establishing a gun store within 500 feet of a
residentially zoned district—merely placed conditions and qualifications on the
commercial sale of arms. 14 Id. at 1050, 1058; id. at 1064 (Silverman, J., concurring in part
and dissenting in part).
In contrast, the challenged provisions here impose no functional prohibition on the
sale, or, to flip to the other side of the coin, purchase, of firearms. Rather, they merely
impose a limited condition and qualification on whom a subset of sellers (federally licensed
dealers) may sell a subset of firearms—handguns—to (not those aged 18 to 20). Put another
way, while the law at issue in Heller flatly banned handgun possession, and while the
Chicago ordinance at issue in Illinois Association of Firearms Retailers banned all
commercial sales (and even gifts) of guns generally, the challenged provisions in this case
permit federally licensed dealers to sell handguns to most adults, and young adults aged 18
to 20 can still purchase handguns from other sources. Moreover, unlike regulations that
amount to functional prohibitions on the sale of arms, this condition and qualification is of
a temporary duration as to potential purchasers—it evaporates once the would-be purchaser
turns 21.
14
The panel majority nevertheless concluded that the law was not “longstanding”
and therefore was not presumptively lawful under Heller. Teixeira, 822 F.3d at 1058.
99
I would therefore hold that the challenged provisions are presumptively lawful as
longstanding conditions and qualifications on the commercial sale of arms and thus are
facially constitutional.
The majority disagrees. While it does not contest the fact that the challenged
provisions are longstanding and regulate only the commercial sale of arms, it contends that
Heller’s presumptively lawful category of conditions and qualifications is limited “to laws
that place conditions and qualifications on the seller, like licensing,” and “does not
encompass a ban on a class of people seeking to purchase handguns from a qualified seller.”
Maj. Op. at 16.
There are two problems with this claim. First, as explained above, the challenged
provisions are neither a ban on selling handguns nor even a ban on young adults buying
handguns. Second, and more fundamentally, the challenged provisions cannot be excluded
from the ranks of presumptively lawful conditions and qualifications on the grounds that
they place a greater burden on buyers than sellers because every restriction on a seller is
also a restriction on a buyer, and vice versa.
Furthermore, the majority asserts that the challenged provisions cannot be
conditions and qualifications on the commercial sale of arms because “[t]here is nothing a
law-abiding 18- to 20-year-old can do to buy a handgun from a licensed dealer except wait
until she turns 21.” Id. at 14. I take the majority to mean that a condition and qualification
must be something the burdened actor can overcome through her own initiative, rather than
simply through aging. That is wrong under our precedent. As noted, one of the conditions
100
and qualifications to obtain a firearm license in Hosford was that the prospective dealer
“be at least twenty-one years old.” 843 F.3d at 166.
The challenged provisions are therefore longstanding conditions and qualifications
on the commercial sale of arms. As such, Marshall’s facial challenge fails. Case closed.
II.
Even if Marshall’s claim did not fail as a facial challenge to a longstanding condition
and qualification on the commercial sale of arms, it would still fail under our normal two-
step analysis of Second Amendment challenges.
A.
Once again, at the first step of our two-step analysis, we ask “whether the challenged
regulation ‘burdens or regulates conduct that comes within the scope of the Second
Amendment.’” Harley, 988 F.3d at 769 (quoting Chester, 628 F.3d at 680). “This historical
inquiry seeks to determine whether the conduct at issue was understood to be within the
scope of the right at the time of ratification.” Chester, 628 F.3d at 680. “If it was not, then
the challenged law is valid.” Id.Here, the majority has done careful historical research and has assembled persuasive
evidence that young adults aged 18 to 20 had Second Amendment rights at the time the
amendment was ratified. In light of this evidence, and given this Circuit’s “prudent”
practice of not “impart[ing] a definitive ruling” at the first step of our two-step inquiry, I
assume for purposes of this opinion that the challenged provisions burden or regulate
conduct within the scope of the Second Amendment. Woollard v. Gallagher, 712 F.3d 865,
101
875 (4th Cir. 2013); see also, e.g., Harley, 988 F.3d at 769. I therefore proceed to the
second step of our two-step inquiry.
B.
Having assumed that the challenged provisions burden conduct within the scope of
the Second Amendment, I move to our second step: considering the challenged provisions
“under the appropriate level of constitutional scrutiny.” Harley, 988 F.3d at 769.
Because Heller ruled out the possibility of applying rational-basis review to Second
Amendment challenges, 554 U.S. at 628 n.27, we must “select between strict scrutiny and
intermediate scrutiny,” Chester, 628 F.3d at 682. In making this selection, courts consider
“the nature of the conduct being regulated and the degree to which the challenged law
burdens the right.” Id.“[I]ntermediate scrutiny is the appropriate standard [where the challenged
provision] does not severely burden the core protection of the Second Amendment, i.e., the
right of law-abiding, responsible citizens to use arms for self-defense in the home.” Kolbe,
849 F.3d at 138. A law severely burdens this core right if it “effectively disarm[s]
individuals or substantially affect[s] their ability to defend themselves.” Id. at 139 (holding
that a law that did not have this disarming effect was subject to intermediate scrutiny)
(quoting N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 260 (2d Cir. 2015)).
Extremely few laws are so burdensome. In fact, “there has been near unanimity in the post-
Heller case law that, when considering regulations that fall within the scope of the Second
Amendment, intermediate scrutiny is appropriate.” Mai v. United States, 952 F.3d 1106,
102
1115 (9th Cir. 2020) (quoting United States v. Torres, 911 F.3d 1253, 1262 (9th Cir.
2019)).
Here, the majority assumes that intermediate scrutiny applies. This is a safe
assumption. As the Fifth Circuit held in NRA, the challenged provisions should be subject
to intermediate scrutiny because “they do not prevent 18-to-20-year-olds from possessing
and using handguns in defense of hearth and home,” and “regulate commercial sales
through an age qualification with temporary effect.” 700 F.3d at 206–07 (internal quotation
marks omitted); accord Nat’l Rifle Ass’n of Am., Inc. v. McGraw, 719 F.3d 338, 342, 348
(5th Cir. 2013) (applying intermediate scrutiny to Texas law preventing adults under 21
from carrying handguns in public). Simply put, a temporary restriction on which sellers
that young adults can buy handguns from does not severely burden the Second
Amendment’s core right to at-home self-defense. Accordingly, intermediate scrutiny
applies. 15
15
Plaintiff Marshall’s arguments to the contrary are not compelling. First, she posits
that we must apply strict scrutiny because the challenged provisions constitute a “universal
prohibition on the . . . purchase of new or un-owned handguns and . . . ammunition,” and
that this prohibition is particularly suspect given the importance of handguns to self-
defense. Opening Br. at 34–36. While the Fourth Circuit has shown special solicitude for
handguns in the past, see Kolbe, 849 F.3d at 138–139, Marshall provides no authority for
a constitutionally protected right to purchase a new weapon for self-defense. Her attempt
to jury-rig a class of arms out of what is really a subset of handguns—those purchased from
a federally licensed dealer—is unpersuasive. See id. at 138 (“The initial weakness in the
plaintiffs’ theory is that the banned assault weapons cannot fairly be said to be a ‘class’
like that encompassing all handguns, in that the banned assault weapons are just some of
the semiautomatic rifles and shotguns in existence.”). Second, Marshall argues that we
should decline to apply traditional levels of heightened scrutiny altogether and should
instead focus on the “text, history, and tradition” of the Second Amendment. Opening Br.
at 31–32. Binding Fourth Circuit precedent forecloses this approach. E.g., Kolbe, 849 F.3d
at 133.
103
C.
“Under the standard of intermediate scrutiny, the government bears the burden of
establishing a reasonable fit between the challenged law and a substantial governmental
objective.” Harley, 988 F.3d at 769. This fit need not be perfect or even the least intrusive
means of accomplishing the desired objective, United States v. Staten, 666 F.3d 154, 162
(4th Cir. 2011), and a law “may meet this standard despite being overinclusive in nature,”
Harley, 988 F.3d at 769.
“[T]he Constitution does not mandate a specific method by which the government
must satisfy its burden under heightened judicial scrutiny.” United States v. Carter, 669
F.3d 411, 418 (4th Cir. 2012). Rather, as the majority recognizes, “[v]arious evidence can
be mustered” to show a reasonable fit, including legislative findings, academic studies,
case law, and even common sense, though “anecdote” and “supposition” alone will not cut
it. Maj. Op. at 61 (collecting authorities) (internal quotation marks omitted).
Furthermore, in deciding whether a firearm regulation is reasonably related to a
substantial government interest, we owe “substantial deference to the predictive judgments
of [Congress.]” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012) (quoting
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)); accord Schrader v. Holder,
704 F.3d 980, 990 (D.C. Cir. 2013) (same); Drake, 724 F.3d at 436–37 (same). We owe
such substantial deference “[i]n the context of firearm regulation” because “the legislature
is ‘far better equipped than the judiciary’ to make sensitive public policy judgments (within
constitutional limits) concerning the dangers in carrying firearms and the manner to combat
those risks.” Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S.
104622, 665 (1994) (plurality opinion)); accord Kanter v. Barr, 919 F.3d 437, 451 (7th Cir.
2019) (same).
Finally, as the Supreme Court has explained, the “quantum of empirical evidence
needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised,” with justifications that are
plausible and not novel requiring less empirical support. Nixon v. Shrink Mo. Gov’t PAC,
528 U.S. 377, 391 (2000); see id. at 391–95 (finding an affidavit from a state senator,
citations to newspaper articles, and a statewide vote in support of campaign expenditure
restrictions to be sufficient evidence to support a state law limiting campaign expenditures).
Where, as here, intermediate scrutiny applies and the justifications offered by Congress are
“both familiar and plausible,” they need only be supported by “minimal” empirical
evidence. Carter, 669 F.3d at 418 (citing Satellite Broad. & Commc’ns Ass’n v. FCC, 275
F.3d 337, 355, 360 (4th Cir. 2001)). In fact, “[e]ven when applying strict scrutiny—
requiring a more taxing proof threshold than the one we apply here—the government may,
in appropriate circumstances, carry its burden by relying solely on history, consensus, and
simple common sense.” Id.(emphasis added) (internal quotation marks omitted) (quoting
Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).
With this framework in place, I will now consider whether the challenged provisions
can withstand intermediate scrutiny. As set forth below, they can.
***
105
The majority’s intermediate-scrutiny analysis gets off to a good start. As it correctly
finds, “the government’s interests in preventing crime, enhancing public safety, and
reducing gun violence are ‘not only substantial, but compelling.’” Maj. Op. at 62 (quoting
Kolbe, 849 F.3d at 139). But the majority—essentially applying strict scrutiny in sheep’s
clothing—errs in concluding that no reasonable fit exists between the challenged
provisions and these laudable objectives. To demonstrate the reasonableness of this fit, I
first consider the provisions’ text and legislative history, which establish that Congress
designed a bespoke solution to a specific problem. I then consider scientific research on
the immaturity of young adults, modern crime and accident statistics, and the state of state
law on young adults and firearms, all of which further confirm the reasonableness of
Congress’s approach.
i. The challenged provisions contain their own limiting principles
The place to start a consideration of the fit between the challenged provisions and
the government’s interest in public safety is with the legislative text—that is, with what the
law says it prohibits, and for how long. It cannot be repeated often enough: the provisions
the majority strikes down today do not keep young adults from owning or using handguns,
and they impose no limitations whatsoever on the use of long guns. See 18 U.S.C.
§ 922(b)(1), (c)(1); 27 C.F.R. §§ 478.99(b)(1), 478.96(b), 478.124(a). Little wonder, then,
that the plaintiffs in this case never alleged that they have been unable to acquire handguns.
In this regard, the challenged provisions are much less restrictive than the
restrictions imposed on various classes of individuals by 18 U.S.C. § 922(g), which forbids
the possession of “any firearm or ammunition” by a member of a restricted class, generally
106
for life. 18 U.S.C. § 922(g) (emphasis added). And yet, appellate courts—including this
Court—regularly uphold provisions of § 922(g) against Second Amendment challenges. 16
My point is not to compare law-abiding young adults to stalkers, fugitives, or other
categories of persons prevented by federal criminal law from possessing firearms. Rather,
I bring up those provisions to emphasize how much less restrictive the challenged
provisions are than those lifelong bans. This “narrow ambit” weighs in favor of upholding
the provisions. NRA, 700 F.3d at 205 (explaining that these same provisions’ narrowness
militated against applying strict scrutiny).
Moreover, the limited restrictions that the challenged provisions do impose are only
imposed for a short time. All restrictions vanish when the clock strikes midnight and the
young adult in question turns 21. As we explained in United States v. Carter, statutes with
“limited temporal reach” are inherently “less intrusive than other statutes that impose a
permanent prohibition on the possession of firearms.” 669 F.3d at 419. This case involves
time-limited provisions that “Congress tailored . . . to cover only the time period during
16
See, e.g., United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (§ 922(g)(1)’s
ban on felons possessing firearms is facially constitutional); United States v. Carter, 750
F.3d 462, 470 (4th Cir. 2014) (§ 922(g)(3)’s ban on possession by those unlawfully using
or addicted to a controlled substance is constitutional); Mai, 952 F.3d at 1109
(§ 922(g)(4)’s ban on possession by those previously committed to a mental institution is
constitutional as applied to plaintiff); United States v. Carpio-Leon, 701 F.3d 974, 975 (4th
Cir. 2012) (§ 922(g)(5)’s ban on possession by those unlawfully in the United States is
constitutional); United States v. Jimenez, 895 F.3d 228, 231 (2d Cir. 2018) (§ 922(g)(6)’s
ban on possession by those dishonorably discharged from the military withstands
intermediate scrutiny as applied to plaintiff); United States v. Mahin, 668 F.3d 119, 120
(4th Cir. 2012) (§ 922(g)(8)’s ban on possession while subject to a domestic violence
protective order is constitutional); Harley, 988 F.3d at 769–70 (§ 922(g)(9)’s ban on
possession by individuals convicted of domestic violence misdemeanors is constitutional
as applied to plaintiff (citing Staten, 666 F.3d at 168)).
107
which it deemed [the prohibited] persons to be dangerous.” Id. And this feature of the
challenged provisions “contributes to [their] proportionality” under heightened review. Id.Thus, under our precedent—and indeed, under common sense—a time-limited regulation
of Second Amendment rights is less burdensome and better-tailored to meet a substantial
government objective than is a lifelong restriction.
In sum, the challenged provisions contain their own built-in limitations of scope and
duration. These limitations are powerful evidence that the provisions burden no more
conduct than is necessary to meet their objectives and so are constitutional.
ii. The legislative history of the challenged provisions strongly supports their
constitutionality
In addition to the legislative text, a provision’s legislative history is one of the “wide
range of sources” the government can rely on to “establish the fit between a regulation and
a governmental interest” under intermediate scrutiny. Id. at 418. Here, the legislative
history of the challenged provisions reinforces that they are reasonably related to the
government’s compelling interest in promoting public safety by limiting the ability of
young adults to purchase handguns from federally licensed firearm dealers.
During the mid-1960s, “Congress conducted a multi-year investigation that revealed
a causal relationship between the easy availability of firearms to young people under 21
and the rise in crime.” NRA, 700 F.3d at 207. This investigation was led by Connecticut
Senator Thomas Dodd and culminated in the enactment of the challenged provisions as
part of the Omnibus Crime Control and Safe Streets Act and Gun Control Acts of 1968.
See generally Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms in
108
America, 248–53 (2011) (describing Dodd’s leadership role in Congressional efforts to
regulate guns); William J. Vizzard, The Gun Control Act of 1968, 18 St. Louis Univ. Pub.
L. Rev. 79, 79–86 (1999) (same); Gabrielle Westcott, The Fight for the Gun Control Act
of 1968, Univ. of Conn. Library Archives and Special Collections Blog, Sept. 15, 2016
[hereinafter Westcott Blog] (same). 17
Dodd’s legislative efforts started in 1961 when he began serving as head of the
Juvenile Justice Subcommittee of the Senate Judiciary Committee. Vizzard, supra, at 80.
After two years of researching gun violence and in the immediate aftermath of President
Kennedy’s assassination, Dodd introduced a bill, S. 1975, that sought to address “the ease
with which juveniles and criminals could anonymously purchase mail-order guns and thus
circumvent state laws regarding the sale of firearms.” Westcott Blog; see also Winkler,
supra, at 248. This bill stalled and then died in committee. Vizzard, supra, at 80; Westcott
Blog.
Following President Johnson’s election in 1964, Dodd reintroduced his gun control
bill at the start of the 89th Congress in January 1965. Vizzard, supra, at 80; Westcott Blog.
But soon, at the Johnson Administration’s behest, he introduced a new measure, Senate
Bill 1592, that called for prohibiting the sale of handguns to those under 21. See Vizzard,
supra, at 80, 82; Westcott Blog. Though it would take three more years to become law, this
prohibition was eventually enacted in the form of the challenged provisions.
17
Westcott’s piece is available at blogs.lib.uconn.edu/archives/2016/09/15/the-
fight-for-the-gun-control-act-of-1968/.
109
I start with this scene-setting to emphasize a basic point: the challenged provisions
were not a slapdash effort. Rather, they were the careful, deliberative “culmination of five
years of legislative effort and seven years of investigation on the part of Senator Dodd and
the Subcommittee on Juvenile Delinquency.” Westcott Blog. And what did Senator Dodd
and his congressional colleagues find at the culmination of their years of inquiry? They
found “a causal relationship between the easy availability of firearms other than a rifle or
shotgun and juvenile and youthful criminal behavior.” Pub. L. No. 90-351, tit. IV,
§ 901(a)(6).
This conclusion tying young adults’ ability to access handguns with threats to public
safety is adequately supported by the legislative record, provided that we view our job as
looking for a reasonable fit between government action and objective and not as
“weigh[ing] conflicting evidence and mak[ing] policy judgments.” Kolbe, 849 F.3d at 140
(quoting Woollard, 712 F.3d at 881). After all, the latter “is the legislature’s job, not ours.”
Id. (quoting Woollard, 712 F.3d at 881). I consider Congress’s chief conclusions step by
step.
Start with Congress’s determination that Americans under 21 pose a special danger
to society and to themselves. As the majority notes, Congress had before it ample evidence
that individuals under 21 were involved in a substantial share of the nation’s criminal
activity. See Maj. Op. at 5–6 & n.2 (acknowledging that at the time of the enactments,
minors under 21 accounted for 64 percent of all arrests for serious crimes in the United
States and “35 percent of the arrests for the serious crimes of violence including murder,
rape, robbery, and aggravated assault and 21 percent of the arrests for murder” (internal
110
citations and quotation marks omitted)). For instance, Congress knew that in New York
City in 1962, 46.3 percent of all those arrested for felonies were under 21. S. Rep. 88-1340,
at 15–16 (1964). Indeed, during the 1960s, many believed the country to be experiencing
an epidemic of youthful criminality. See, e.g., Maj. Op. at 5–6 n.2 (quoting federal
officials’ testimony that the “greatest growth of crime [at the time was] in the area of young
people, juveniles and young adults”). This fear was hardly baseless. See, e.g., 109 Cong.
Rec. 13946 (1963) (statement of Sen. Dodd) (“[A]ccording to the FBI, during the 5 years
between 1955 and 1960, when the juvenile population increased by 25 percent, the number
of youngsters arrested for carrying guns went up nearly twice as fast.”); 114 Cong. Rec.
13322 (1968) (statement of Sen. Dodd) (“[S]ince 1960, arrests of juveniles [for robbery]
have increased 55 percent.”). 18
In addition to worrying about youthful crime and gun violence, Congress was also
concerned about self-harm and accidents involving firearms. Back in 1963, Senator Dodd
lamented that “[o]f the more than 18,000 annual suicides [in the country], fully half [were]
committed with the use of firearms.” 109 Cong. Rec. 13946. He raised the same concerns
18
While I recognize “the inherent danger of drawing causal connections between
rates of arrest and incidences of criminal activity,” Powell v. Tompkins, 926 F. Supp. 2d
367, 393 (D. Mass. 2013), other statistics help confirm that America did indeed experience
an increase in violent crime during the 1960s, lessening any concern about relying on arrest
statistics, see, e.g., Federal Firearms Legislation: Hearings Before the Subcomm. to
Investigate Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th Cong. 1 (1968)
(statement of Senator Dodd) (citing FBI statistics establishing that between 1964 and 1967
murder by gun “increased 51 percent; aggravated assault by gun increased an incredible 84
percent; and armed robbery increased 57 percent”); Lauren-Brooke Eisen & Oliver Roeder,
America’s Faulty Perception of Crime Rates, Brennan Ctr. for Just. (Mar. 16, 2015),
https://www.brennancenter.org/our-work/analysis-opinion/americas-faulty-perception-
crime-rates (“[T]he violent crime rate increased by 126 percent between 1960 and 1970.”).
111
during the final push to pass the Omnibus Crime Control and Safe Streets Act of 1968,
stating on May 8, 1968 that “[t]he surest and easiest way to kill one’s self is with a
firearm—especially when the firearm is immediately at hand. And when it comes to
suicides by firearms, the discrepancy between the rate in this country and the rate in other
civilized countries is equally astounding.” 114 Cong. Rec. 12305. He was joined in this
sentiment by Attorney General Nicholas Katzenbach, who argued that “[i]n a country in
which half the 20,000 suicides of 1963 were committed by firearms, congressional action
is called for now.” Proposed Amendments to The National Firearms Act and The Federal
Firearms Act: Hearings Before the Comm. on Ways and Means, 89th Cong. 73 (1965)
[hereinafter Ways and Means: 1965 Hearing] (statement of Attorney General Katzenbach).
Beyond suicide, Congress was also concerned with simple gun accidents and the
toll they took on young people. For instance, Senator Dodd’s Juvenile Delinquency
Subcommittee heard testimony from a Pittsburg police officer who testified regarding a
“typical case” of gun injury in his city in which a 20-year-old bought a handgun, loaded it,
and then “attempted to expel the cartridge by striking it with a hatchet which resulted in
his being wounded in the right cheekbone.” S. Rep. 88-1340, at 17 (1964); see also id. at
27 (concluding that the “indiscriminate sale of [mail-order] firearms ha[d] resulted in
accidental tragedies including loss of life and serious injury”).
Though the majority ignores this evidence, prominent supporters of the challenged
provisions also highlighted the depressing pervasiveness of gun accidents while advocating
for passage of the Crime Control and Safe Streets Act. See 114 Cong. Rec. 12299 (1968)
(statement of Sen. Fong) (estimating that in 1966, firearms were involved in 10,000
112
suicides and 2,600 accidental deaths and arguing that this “staggering toll” helped
demonstrate “the urgent need for a comprehensive [gun] law”); id. at 12303 (statement of
Sen. Dodd) (arguing that Title IV, which housed the challenged provisions, “represent[ed]
a long-overdue legislative reaction to the terrible toll of life and limb extracted each year
in our country by firearms,” including an estimated “270,000 suicides, and 145,000 deaths
by accident” between 1900 and 1966); cf. Federal Firearms Act: Hearings Before the
Subcomm. to Investigate Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th
Cong. 29, 31 (1967) (speech of Sen. Kennedy of Mass.) (arguing that Senate Bill 1—a
legislative predecessor to the challenged provisions that also prevented those under 21 from
buying handguns from federally licensed dealers—could help “avoid one murder, one
suicide, one accident, or ten, or a hundred, or a thousand” and was “the best measure
anyone ha[d] devised” to prevent crime, suicides, and gun accidents).
Next, in contemplating its legislative options for responding to the significant harm
caused by people armed with guns in the form of crime, suicides, and accidents, Congress
heard from law-enforcement professionals who believed that further regulating access to
firearms would promote public safety. For example, FBI Director J. Edgar Hoover
concluded that “those who claim that the availability of firearms is not a factor in murders
in this country are not facing reality.” Ways and Means: 1965 Hearing, at 73 (statement of
Attorney General Katzenbach (quoting Hoover’s 1963 Law Enforcement Bulletin)).
Other law-enforcement professionals agreed that regulating youth access to
firearms, in particular, would reduce gun injuries and deaths. Senator Dodd noted that “law
enforcement experts virtually to a man agree that we can curb these serious increases in
113
crimes of violence by young people, by restricting the availability of guns to them.” 114
Cong. Rec. 13643–44 (1968). In fact, broad swaths of the nation’s law-enforcement
establishment favored stricter gun control measures than those Congress ultimately
enacted. See S. Rep. 90-1097, at 191 (1968) (statement of Sen. Tydings) (“The President,
the Attorney General, the Director of the FBI, the President’s Commission on Law
Enforcement and the Administration of Justice, the International Association of Chiefs of
Police, the American Bar Association, and state and local law enforcement officials all
across the country have recommended federal firearms control legislation much more
stringent than Title IV[, the provisions of the Crime Control and Safe Streets Act that barred
those under 21 from purchasing handguns from federally licensed dealers,] provides.”).
Further, as the majority notes, “[l]aw enforcement officers from New York City,
Los Angeles, St. Louis, Chicago, Philadelphia, and Atlanta provided Congress with
statistics documenting the misuse of firearms by juveniles and minors.” Maj. Op. at 5–6
n.2 (internal quotation marks omitted). For instance, Herbert T. Jenkins, the chief of
Atlanta’s Police Department, stated that of 404 recent aggravated assaults involving
firearms in his city, about 93 percent were committed by individuals under the age of 21.
S. Rep. 89-1866, at 59 (1966) (from Individual Views of Senators Dodd, Bayh, Kennedy
of Massachusetts, Tydings, Fong, Javits, Smathers, and Long of Missouri). And Chief
Jenkins further concluded that “[m]ost of these cases would have ended as a simple
altercation, except for the ready availability of the gun.” Id. (emphasis added).
Supporters of the enactments believed that limiting youth access to firearms would
be a particularly effective way to limit violent deaths because keeping guns out of the hands
114
of young people could keep them from turning to crime or, if they did, could keep them
from killing anyone while engaging in criminal activity. Notably, contemporary statistics
showed that 21% of people who were assaulted with a gun died because of the assault,
compared with just 3% of individuals assaulted with another weapon. 109 Cong. Rec.
13946 (statement of Sen. Dodd). They also showed that in 1962, “more than 3,200 persons
met violent deaths by a gun in the hand of a noncriminal.” Id. (emphasis added).
IRS Commissioner Sheldon Cohen and Attorney General Katzenbach also
explained the link they saw between firearms, youth, and violence. According to Cohen—
who, as IRS Commissioner, was the executive branch official then responsible for firearm
regulation 19—the “easy availability of weapons” exacerbated the “tendency [of young
people, juveniles, and young adults] toward wild, and sometimes irrational . . . violent” and
“deadly” behavior. Federal Firearms Act: Hearings Before the Subcomm. to Investigate
Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony
of Commissioner Cohen). Likewise, Attorney General Katzenbach believed that while the
19
See Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile
Delinquency of the Sen. Comm. on the Judiciary, 89th Cong. 29–30 (1965) [hereinafter
Firearms Act: 1965 Hearings] (statement of Hon. Henry H. Fowler, Secretary of the
Treasury) (explaining that Cohen, as IRS commissioner, was “responsible for the
administration of the Federal Firearms Act” as the head of the IRS’s Alcohol and Tobacco
Tax Division, the forerunner to the modern Bureau of Alcohol, Tobacco, Firearms and
Explosives). Given Cohen’s subject-matter expertise in firearm regulation, the majority’s
dismissal of his testimony for lack of personal law-enforcement experience cannot hold
water. We must defer to Congress’s decision to trust someone with such clearly relevant
credentials instead of conducting a kind of retroactive Daubert analysis. While courts of
course have an obligation to serve as gatekeepers when it comes to expert testimony cited
by the parties before us in the course of normal litigation, we also have an obligation to
show a much greater level of deference when it is a coequal branch who has opted to rely
on a particular expert when performing its constitutionally assigned duties.
115
gun control measures might only make it “a little harder” for “major criminals” to get guns,
another purpose of the proposed measures was “to take guns away from people who might
not otherwise become criminals,” and to ensure that if they did, they would “at least” not
“use guns to kill somebody in the process.” Ways and Means: 1965 Hearing, at 85
(emphasis added).
Senator Dodd echoed the Commissioner and Attorney General’s beliefs that
keeping guns out of the hands of young adults would increase public safety. He argued:
Some of the opponents of the bill . . . have also argued that it is not
guns that kill people, but the criminals behind the guns. And they have further
argued that, criminals being what they are, they will succeed in obtaining
weapons despite any laws which we may enact. The basic fallacy in this
argument is [that] it lumps all gun criminals together in a single criminal
category. It may be true that the hardened criminal . . . will succeed in
obtaining weapons no matter what laws we may pass. But the great majority
of those involved in gun crimes are not professional criminals. They are . . .
amateur criminals, some of them one-time offenders, some of them “hopped-
up” juveniles involved in their first breach of the law. In the case of these
amateur criminals, it is frequently the weapon that kills rather than the
criminal himself. The professional criminal—and I have known some, I have
spent some part of my life in criminal work—will not attempt to hold up an
old man for the paltry few dollars he may have in his pocket, and then, if he
encounters any resistance, panic and fire. He does not operate that way. But
every year there are hundreds of murders perpetrated in precisely this way
by amateur criminals—by kids, youngsters, and juveniles. . . . The amateur
criminal [is frequently] a person of inferior intelligence and inferior initiative
who would find it very difficult to obtain a gun for himself if the law placed
a few obstacles in his way.
114 Cong. Rec. 12307–08 (1968). 20
20
Senator Dodd had intimate, first-hand experience with gun crime. As a special
agent for the FBI during the 1930s, he partook in a shootout between the G-Men and John
Dillinger’s gang. Winkler, supra, at 248–49.
116
Agree or disagree with Senator Dodd’s assessment, there is no denying that it had
support at the time the challenged provisions were enacted. For instance, Curtis Brostron,
St. Louis’s Chief of Police, testified that he supported “mak[ing] the acquisition of firearms
more difficult,” in part because he believed young people would be less tempted to acquire
weapons and to commit crime if obtaining a firearm were harder. Firearms Act: 1965
Hearings at 580–81 (statement of Chief Brostron). In short, Congress had ample evidence
before it that, to truly enhance public safety, it would need to do more than target “major
criminals” and repeat offenders.
Having identified a specific problem—death and injuries from guns in the hands of
young people—and a general solution—regulating youth access to firearms—Congress
then began tailoring a narrow fix.
First, it focused only on handguns, which it termed “the most formidable and most
frequently used tool of the criminal.” S. Rep. 89-1866, at 4 (1966). Congress reached this
conclusion that handguns were uniquely the friend of criminals by relying on two sources
of evidence: (1) “the existence in many States of laws controlling [handguns]” and (2)
“statistics showing its dominance as the weapon used in unlawful activities.” Id. First, as
Congress noted, many states and cities regulated handguns to a “much greater extent” than
long guns, suggesting a greater fear of their misuse. Id. Second, regarding crime statistics,
Congress had before it FBI statistics and commentary from Director Hoover that
“handguns were used in 70 percent of . . . murders committed with firearms” and in most
armed robberies involving a gun. Id. at 5. Thus, Congress concluded “[f]rom these statistics
117
[and state and local regulations that] it [was] quite clear that the principal offender in the
unlawful use of firearms is the handgun.” Id.
Congress then further connected the broader trends of youth violence and handgun
violence together by studying the very specific trend of youth violence perpetrated with
handguns. For instance, in 1964, Senator Dodd’s Senate Subcommittee on Juvenile
Delinquency learned that from 1960 to 1962, firearms were involved in approximately
seventy percent of all arrests in New York City of individuals under 21 for four kinds of
violent felonies and that these firearms were mostly handguns. S. Rep. 88-1340, at 16
(1964).
Finally, having concluded that public safety could plausibly be addressed by
regulations targeting youth access to handguns, Congress focused yet more narrowly on
the specific problem of handguns purchased from federally licensed firearms dealers. See
NRA, 700 F.3d at 208 (“The legislative record . . . demonstrates that Congress was
particularly concerned with the [role federally licensed firearm dealers played] in the crime
problem.”). To this end, Congress heard from IRS Commissioner Cohen, who testified that
the “misuse of firearms by juveniles” had “reached alarming proportions”; that “[t]he vast
majority, in fact almost all of these firearms, are put into the hands of juveniles by . . .
dealers who operate under licenses issued by the Federal Government”; and that “[t]he way
118
to end this dangerous practice [was] to stop these Federal licensees from selling firearms
to juveniles.” 21 Firearms Act: 1965 Hearings at 67 (statement of Commissioner Cohen).
Thus, in context, Commissioner Cohen’s remarks demonstrate his conclusion that
the ability of young adults to buy firearms from federally licensed dealers was contributing
to the nation’s crime problem. Congress agreed, and, combining this conclusion with its
finding that handguns were the primary weapon of concern, concluded that handguns had
been “widely sold by federally licensed importers and dealers to emotionally immature, or
thrill-bent juveniles and minors prone to criminal behavior,” leading to “youthful criminal
behavior.” Pub. L. No. 90–351, tit. IV, § 901(a)(6).
To summarize, as the Fifth Circuit found in NRA, “Congress was focused on a
particular problem: young persons under 21, who are immature and prone to violence,
easily accessing handguns, which facilitate violent crime, primarily by way of [federally
licensed dealers].” 700 F.3d at 208. “Accordingly, Congress restricted the ability of young
persons under 21 to purchase handguns from [federally licensed dealers].” Id. Nothing in
the majority’s opinion contests that Congress studied this exact issue and agreed on a
solution designed to solve it. Applying intermediate scrutiny, and not strict scrutiny
masquerading as such, this ought to be enough.
Instead, in targeting the chain of conclusions that led Congress to enact the
challenged provisions, the majority trains its fire on the weakest link: the specific
21
While Commissioner Cohen did not clarify the exact age group he meant when
he referred to “juveniles,” these remarks came during his broader endorsement of Senate
Bill 1592, which, as discussed above, endeavored to prevent individuals under twenty-one
from purchasing handguns.
119
connection between federally licensed dealers and handgun crime. To be sure,
Commissioner Cohen’s testimony could have been more robust, and the legislative record
does lack a study establishing that most guns used by young adults to commit crimes were
sold to them directly by federally licensed dealers. But, for several reasons, I would not
find this shortcoming in the record to be fatal to the challenged provisions.
First, the majority’s exclusive focus on the link between guns sold by federally
licensed dealers to young adults and crime is too narrow. The legislative history establishes
that Congress was concerned not just with crime, but also with accidents and suicides. And
common sense tells us that fewer law-abiding young adults will harm themselves with
handguns if they cannot purchase them from federally licensed dealers. 22
22
The commonsense idea that reducing access to lethal weapons will reduce firearm
accidents and suicides is also supported by the scientific literature. See, e.g., Matthew
Miller et al., Firearm Availability and Unintentional Firearm Deaths, 33 Accident
Analysis & Prevention 477, 479–480 (2001) (finding that “children and adults, men and
women, and members of all racial groups were significantly more likely to die from
unintentional firearm injuries if they lived in states with more rather than fewer guns,” and
that this “robust, positive and statistically significant association” between gun availability
and fatal gun accidents persisted “even after controlling for state level poverty,
urbanization and regional location”); David M. Studdert et al., Handgun Ownership and
Suicide in California, 382 New Eng. J. of Med., 2220, 2228 (2020) (“Our study bolsters
and extends the message from previous research: ready access to firearms, particularly
handguns, is a major risk factor for suicide.”); Matthew Miller et al., Suicide Mortality in
The United States: The Importance of Attending to Method in Understanding Population-
Level Disparities in the Burden of Suicide, 33 Ann. Rev. of Pub. Health 393, 397, 401–03
(2012) (providing figures that establish that in 2001, approximately 84.9% of suicide-by-
firearm attempts in America were fatal compared with just 4.1% of all non-firearm attempts
and discussing the “potential for reducing the population-level suicide burden by reducing
population-level access to lethal means”).
A recent study following more than 26 million Californians over the age of 21 for
up to 12 years dramatically illustrates this relationship between access to firearms and
suicide. It found that despite having “lower rates of all-cause mortality than nonowners,”
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Second, the challenged provisions aimed to prevent crime not just by keeping
handguns out of the hands of hardened criminals, but also by making it somewhat harder
for law-abiding young adults to obtain handguns and to then turn, gun in hand, to crime in
the first place. The majority’s statistics on the percentages of gun crimes committed with
legally purchased weapons do not address these potential crimes that may have been
prevented by the challenged provisions. Such potential crimes are easy to imagine when
we consider Congress’s findings on the impulsivity and hotheadedness of youth. Thus,
even assuming that relatively few young adults commit a gun crime with a handgun they
purchased directly from a federally licensed dealer, it was reasonable for Congress to
believe that the challenged provisions could help reduce gun crime.
Third, it is important to remember what we are supposed to be doing here:
“weighing a legislative judgment, not evidence in a criminal trial” or even an agency’s
record in an administrative proceeding. Pena v. Lindley, 898 F.3d 969, 979 (9th Cir. 2018)
(explaining the proper application of intermediate scrutiny to a Second Amendment
challenge). When Congress enacts a statute, it “is not obligated . . . to make a record of the
handgun owners committed suicide at much higher rates than nonowners. Studdert, supra,
at 2220, 2224. Specifically, from 2004 to 2016, male handgun owners committed suicide
at a rate three times higher than male nonowners, and female handgun owners took their
lives at a rate seven times higher than female nonowners. Id. at 2224. These differential
rates were “attributable to much higher rates of suicide by firearm,” not to “higher rates of
suicide by other methods.” Id. at 2224, 2226. While these precise numbers could
theoretically prove unique to California, or to those over age 21, we also know that suicide
attempts “are often impulsive acts, driven by transient life crises,” and that “most people
who attempt suicide do not go on to die in a future suicide.” Id. at 2221. It therefore stands
to reason that reducing access to firearms—which are extremely effective as a means of
death—will reduce suicides. See id.
121
type that an administrative agency or court does to accommodate judicial review,” even as
to constitutional issues. Satellite Broad. & Commc’ns Ass’n, 275 F.3d at 358 (quoting
Turner, 512 U.S. at 666 (plurality opinion)) (First Amendment case). Thus, when
considering legislative judgments to determine if an enactment survives intermediate
scrutiny, not only do we defer to the policy judgments of the legislature, we also “allow
[the government] to rely on any material ‘reasonably believed to be relevant’ to substantiate
its interests.” Mai, 952 F.3d at 1118 (alteration in original) (quoting Pena, 898 F.3d at 979)
(discussing judicial review of congressionally enacted gun control measure).
Commissioner Cohen’s testimony regarding federally licensed dealers surely meets that
standard.
Plus, as noted, the “quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down with the novelty and
plausibility of the justification raised.” Nixon, 528 U.S. at 391. And where the justifications
offered by Congress are “both familiar and plausible,” they need only be supported by
“minimal” empirical evidence. Carter, 669 F.3d at 418 (quoting Satellite Broad. &
Commc’ns Ass’n, 275 F.3d at 360).
Here, it is undeniable that the justifications Congress offered for enacting the
challenged provisions were both familiar and plausible to the legislators who passed the
bills and to the voters that elected them. That’s why proponents of the measures made
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repeated appeals to common sense in pushing for their passage 23 and why the enactments
had such broad-based public support. 24 As such, the provisions need only be supported by
minimal empirical evidence, a bar they easily clear.
Finally, even if I thought that Congress did not sufficiently show its work back in
1968 by justifying the challenged provisions through detailed studies of the public-safety
impacts of preventing young adults from buying handguns from federally licensed
dealers—which I do not—I still would not find the absence of such studies to cut decisively
against the government in our intermediate-scrutiny inquiry. To do so would be profoundly
anachronistic. As the Third Circuit noted in Drake, legislatures contemplating gun control
measures pre-Heller can hardly have been expected to “muster . . . reports, statistical
information, and other studies” to fortify their bills against Second Amendment challenges
23
See, e.g., Firearms Act: 1965 Hearings at 32 (statement of Secretary Fowler) (“I
think it is self-evident that minors [under age 21] should not have access to pistols [or]
other concealable firearms and weapons of vast destructive power . . . .”); Ways and Means:
1965 Hearing at 28 (statement of Hon. Joseph W. Barr, Undersecretary of the Treasury)
(making the same statement); 114 Cong. Rec. 13643 (1968) (statement of Sen. Dodd) (“[I]t
is simply common[ ]sense not to allow federally licensed dealers to dispense weapons of
death to the young and immature. Unless they are properly supervised, firearms in the
hands of juveniles can result in great tragedy. There are scores of thousands of tragedies in
the police files of our country to attest to this.”).
24
Polling from the spring of 1968 showed that Americans favored “strict control
over the sale of firearms by 71 to 23 percent” and that gun owners favored such controls
by 65 to 31 percent. S. Rep. 90-1097, at 184 (individual views of Senator Fong) (discussing
a Harris Poll from April 22, 1968 and contending that it represented Congress’s “clear
mandate from the people” to expand Title IV to include long guns in addition to handguns).
This popular support translated into endorsements for the enacted measures from all walks
of American life. See, e.g., 114 Cong. Rec. at 12314–16 (1968) (statement of Sen. Dodd)
(documenting support for the challenged provisions from, among others, the American Bar
Association, the AFL-CIO, civil rights leader Roy Wilkins, and the General Federation of
Women’s Clubs, “the parent organization of some 15,000 women’s clubs”).
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when the Supreme Court had not yet taught us that the Second Amendment protected an
individual right to bear arms. 724 F.3d at 437–38; see also Dearth v. Lynch, 791 F.3d 32,
49 (D.C. Cir. 2015) (Henderson, J., dissenting) (“The plaintiffs also fault the Government
for submitting what is admittedly a sparse evidentiary record demonstrating the Congress’s
rationale for applying the ban on receipt of firearms to non-resident citizens. It is hardly
surprising that the Government is not able to offer more because the provisions at issue
here were enacted in 1968 and 1994—long before the individual-right view of the Second
Amendment became the law of the land.” (internal citation omitted)). So too here.
In conclusion, the legislative history of the challenged provisions illustrates that
Congress studied a very specific problem—threats to public safety caused by youth access
to handguns purchased from federally licensed dealers—and aimed to address that exact
problem through the challenged provisions. This evidence strongly supports holding that
the challenged provisions are a reasonable fit for the government’s compelling interest in
public safety.
iii. The challenged provisions are supported by modern scientific research
Beyond the evidence cited in the legislative history and common sense, Congress’s
decision to restrict the ability of young adults aged 18 to 20 to purchase handguns from
federally licensed dealers is also supported by more recent scientific research showing that
the youngest adults, as a group, are decidedly less mature than other adults—even those
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just a few years older. 25 See Carter, 669 F.3d at 418 (explaining that courts can consider
“empirical evidence” in assessing the fit between a government’s interest and its
enactment).
Importantly, the majority does not question the accuracy of this body of research.
This is a wise decision given that courts around the country have looked to similar scientific
evidence to uphold age-based restrictions on Second Amendment rights. See NRA, 700
F.3d at 210 n.21 (concluding that “Congress’s finding that minors under 21 are prone to
violent crime, especially with guns-in-hand,” the very finding at issue here, was entitled to
deference and was otherwise supported by modern scientific research on the impulsivity of
young adults); Horsley v. Trame, 808 F.3d 1126, 1127, 1133 (7th Cir. 2015) (finding that
“scholarly research on development through early adulthood” supported the
constitutionality of an Illinois measure that prevented those under 21 from possessing a
firearm without the approval of their parents or the Director of State Police); Mitchell v.
Atkins, 483 F. Supp. 3d 985, 990, 995–96 (W.D. Wa. 2020) (relying in part on research
“show[ing] that 18- to 20-year-olds are developmentally immature compared with older
25
While the government has not put forward all the scientific evidence and crime
and accident statistics I discuss, the amici in this case introduced similar evidence before
the district court, and—like other courts—the district court explicitly relied on that
evidence. See Maj. Op. at 62–63 n.57 (“[T]he amici’s arguments here were raised and
adopted by the district court, and some of their evidence is in the record.”); Hirschfeld v.
BATFE, 417 F. Supp. 3d 747, 759 (W.D. Va. 2019) (district court below finding that “the
Amici parties highlight substantial evidence supporting Congress’s decision to draw the
line at age 21”); NRA, 700 F.3d at 210 n.21 (relying on sources cited by amici in a separate
case to uphold the same provisions at issue here). These facts mitigate any concern about
considering arguments put forward on appeal by the amici.
125
adults” to uphold the constitutionality of a Washington law barring adults under 21 from
purchasing semiautomatic rifles).
As surely as “any parent knows” that children are less mature and responsible than
adults, Roper v. Simmons, 543 U.S. 551, 569 (2005), so too does any older adult know that
late adolescence or early adulthood is a distinct and often more chaotic season of life than
the ages that follow, cf. Jeffrey Arnett, Reckless Behavior in Adolescence: A
Developmental Perspective, 12 Developmental Rev. 339, 339–40 (1992) (defining
American adolescence as “extending from puberty to the early 20’s” and explaining that
“[a]dolescence bears a heightened potential for recklessness compared to other
developmental periods in every culture and in every time”).
But I need not rest on the wisdom of age to substantiate this difference between the
youngest adults and older adults, for it is well-established in the scientific literature. We
now know, for example, that while “a 19-year-old might possess a brain that looks ‘adult-
like’ and that supports mature cognitive performance under calm or ‘neutral’ conditions,
that same brain tends to look much more like that of a younger kid when evocative
emotions are triggered, resulting in significantly weaker cognitive performance.” Jason
Chein, Adolescent Brain Immaturity Makes Pending Execution Inappropriate, Bloomberg
Law (Sept. 17, 2020 4:00 AM), https://www.bloomberglaw.com/bloomberglawnews/us-
law-week/XBBCKGKK000000; see also, e.g., Adam Ortiz, Juvenile Justice Ctr., Am. Bar
Ass’n, Cruel and Unusual Punishment: The Juvenile Death Penalty; Adolescence, Brain
Development and Legal Culpability, 2 (Jan. 2004) (“The evidence now is strong that the
brain does not cease to mature until the early 20s in those relevant parts that govern
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impulsivity, judgment, planning for the future, foresight of consequences, and other
characteristics that make people morally culpable . . . . Indeed, age 21 or 22 would be closer
to the ‘biological’ age of maturity.” (quoting declaration of Dr. Ruben Gur of the
University of Pennsylvania Medical Center)).
Furthermore, modern research also instructs that the prefrontal cortex, the part of
the brain that makes it possible to “exercise good judgment when presented with difficult
life situations,” does not finish maturing until age 25. J.A. 346, 352 (reprinting Mariam
Arain et al., Maturation of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment
449, 453, 459 (2013)); see also United States v. Ramsay, ---F. Supp. 3d---, 2021 WL
1877963, at *9 (S.D.N.Y. May 11, 2021) (Rakoff, J.) (surveying the literature on
“psychosocial maturity—the capacity to exercise self-restraint, especially in emotionally-
arousing contexts,” and noting that this kind of maturity “continues to mature throughout
the teens and into the twenties,” perhaps even to age 30 (cleaned up)).
The upshot of these findings is that in precisely the situations where violence is most
likely—that is, emotionally evocative situations or situations requiring the intense
weighing of the exigencies of the moment against future consequences—young adults think
more like children than they do like older adults. See Daniel W. Webster et al., John
Hopkins Ctr. for Gun Policy and Research, Firearms on College Campuses: Research
Evidence and Policy Implications (Oct. 15, 2016), at 19 (explaining that “[g]uns may be
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called on in the very situations in which adolescents are most developmentally
vulnerable”). 26
In short, as the Fifth Circuit has already concluded in its study of this exact issue,
“modern scientific research supports the commonsense notion that 18-to-20-year-olds tend
to be [less mature] than young adults aged 21 and over.” NRA, 700 F.3d at 210 n.21. I
would therefore join the courts around the country that have held that this science buttresses
reasonable restrictions on the gun rights of minors and young adults.
iv. The challenged provisions are supported by crime and accident statistics
Based on the most up-to-date scientific evidence, therefore, we should expect
that young adults are more likely to be involved in violent crime than older adults, given
their biological immaturity. It is thus completely unsurprising that abundant modern
evidence shows that young adults in fact perpetrate more violent crime generally and more
26
The phenomenon of young adults under twenty-one thinking and behaving more
like children than they do like older adults is also well-established in legal scholarship,
much of which has focused on questioning whether the death penalty is appropriate for
those whose crimes were committed as children or young adults. See, e.g., John H. Blume
et al., Essay, Death By Numbers: Why Evolving Standards Compel Extending Roper’s
Categorical Ban Against Executing Juveniles from Eighteen to Twenty-One, 98 Tex. L.
Rev. 921, 930–35 (2020); Andrew Michaels, A Decent Proposal: Exempting Eighteen-to-
Twenty-Year-Olds From the Death Penalty, 40 N.Y.U. Rev. L. & Soc. Change, 139, 161–
67 (2016); Melissa S. Caulum, Comment, Postadolescent Brain Development: A
Disconnect Between Neuroscience, Emerging Adults, and the Corrections System, 2007
Wis. L. Rev. 729, 731–33 (2007); Tirza A. Mullin, Note, Eighteen Is Not A Magic Number:
Why The Eighth Amendment Requires Protection for Youth Aged Eighteen to Twenty-Five,
53 Mich. J.L. Reform, 807, 812–16 (2020); Zoe Jordan, Note, The Roper Extension: A
California Perspective, 71 Hastings L.J. 197, 206–210 (2019).
128
firearm crime specifically than do older adults. 27 In fact, according to an analysis of FBI
supplementary homicide reports conducted by amicus Everytown for Gun Safety, from
2013 to 2017, young adults aged 18 to 20 “commit[ted] gun homicides at a rate nearly four
times higher than adults 21 and older.” Everytown for Gun Safety Analysis, Uniform Crime
Reporting Program: Supplementary Homicide Reports (SHR) 2013–2017 (2018)
(emphasis added), https://everytownresearch.org/stat/eighteen-to-20-year-olds-commit-
gun-homicides-at-a-rate-nearly-four-times-higher-than-adults-21-and-older/; see also Br.
for Amicus Curiae Brady at 11 (quoting Everytown for Gun Safety, Concealed Carry
Reciprocity: Overriding State Public Safety Laws (June 25, 2018),
https://everytownresearch.org/report/concealed-carry-reciprocity-overriding-state-public-
safety-laws/ (same)).
27
See, e.g., Off. of Juvenile Just. & Delinquency Prevention, U.S. Dep’t of Justice,
Arrest Rates by Offense and Age Group 2019,
https://www.ojjdp.gov/ojstatbb/crime/ucr.asp?table_in=1&selYrs=2019&rdoGroups=1&r
doData=r (documenting that in 2019, Americans aged 18 to 20 committed 320.8 violent
crimes per 100,000 individuals, compared with rates of 167.3 per 100,000 for all
individuals 18 and older and 145.2 per 100,000 for all individuals 25 and older); NRA, 700
F.3d at 210 (“In 2009, 18-to-20 year-olds accounted for over 19% of all murder and non-
negligent manslaughter arrests, 14% of all arrests for forcible rape, almost 24% of all
robbery arrests, and 12% of all aggravated assault arrests . . . even though they comprised
only about 4.3% of the population.”); Horsley, 808 F.3d at 1133 (“An FBI analysis of crime
in 2014 reflects that 18-to-20-year-olds were responsible for more than 15.8% of all
charges issued for murder and nonnegligent manslaughter,” despite comprising just “5.4%
of the population over the age of 14.”); Mitchell, 483 F. Supp. 3d at 996 (noting that young
adults age 18 to 20 account “for approximately one-quarter of firearm homicides
committed where an offender was identified” and that “[a]rrest rates for murder, robbery,
and other violent crimes peak around ages 17 to 20”); Powell, 926 F. Supp. 2d at 392–93
(citing a 2011 survey conducted by the FBI and the DOJ finding that “eighteen- to twenty-
year-olds accounted for approximately 16.6% of all arrests made for weapons offenses”
despite comprising “only about 4.3% of the national population”).
129
Nor is the connection between age and firearm injuries limited to intentional
violence. It also appears that young adults are much more likely to die in a gun accident
than older adults are. See Sarah J. Solnick and David Hemenway, Unintentional Firearm
Deaths in the United States 2005–2015, Inj. Epidemiology, 6:42 at 3–4 (2019) (finding in
a survey of 16 states that “children and teens, ages 10 to 19” and “young adults, aged 20 to
29” are at an elevated risk of dying in a gun accident with “[a]ll other age groups hav[ing]
a markedly lower rate” of accidental deaths).
These statistics “give credence to the notions that young adults’ access to firearms
is an issue of significant governmental concern and that there is a close fit between this
concern and the [challenged provisions].” Powell, 926 F. Supp. 2d at 393 (finding that
crime statistics supported the constitutionality of an age-based restriction on carrying
firearms). Thus, I would treat these crime and accident statistics, like the modern scientific
research on the biological immaturity of young adults, as yet more evidence confirming
the reasonableness of the challenged provisions.
v. The challenged provisions are supported by state enactments
Finally, when considering whether the challenged provisions are a reasonable fit for
Congress’s interest in promoting public safety, I find it highly relevant that “all fifty states
in the Union, as well as the District of Columbia, feature laws imposing age-based
restrictions [on] firearms, and [that] many of these laws set the minimum age for the
possession and use of firearms at twenty-one.” Id. at 387. Specifically, at least twenty-one
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states and the District of Columbia regulate, and often prohibit altogether, the sale of
handguns to or the purchase of such guns by individuals under twenty-one. 28
While state legislatures cannot determine the parameters of constitutional rights, the
fact that many states currently agree with Congress on the need to regulate young adults’
access to handguns speaks to the ongoing reasonableness of the actions Congress took back
in 1968. In other words, courts may look to the ubiquity of state-level restrictions in
determining the reasonableness of a challenged provision’s fit, and thus its
constitutionality. See, e.g., United States v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010)
(per curiam) (finding that state-level restrictions on the ability of habitual drug users to
possess firearms supported the constitutionality of 18 U.S.C. § 922(g)(3)’s federal ban on
firearm possession by drug addicts, as such restrictions demonstrated that “Congress was
not alone in concluding that habitual drug abusers are unfit to possess firearms”).
***
To summarize: Congress had a compelling interest in promoting public safety and
the challenged provisions are a reasonable fit for that objective. The reasonableness of the
fit is abundantly illustrated by the legislative text and history, scientific research, crime and
28
See Cal. Penal Code § 27505; Conn. Gen. Stat. § 29-34(b); D.C. Code § 22-4507;
Del. Code tit. 24, §§ 901, 903; Fla. Stat. § 790.065(13); Haw. Rev. Stat. § 134-2(d); 430
Ill. Comp. Stat. 65/3(a), 65/4(a)(2)(i-5); Iowa Code § 724.22(2); Md. Code, Pub. Safety
§ 5-134(b)(1); Mass. Gen. Laws ch. 140, § 130; Mich. Comp. Laws § 28.422(1), (3); Mo.
Rev. Stat. § 571.080; Neb. Rev. Stat. §§ 69-2403, 69-2404; N.J. Stat. § 2C:58-3(c)(4).;
N.Y. Penal Law 400.00(1); Ohio Rev. Code Ann. § 2923.21; 11 R.I. Gen. Laws § 11-47-
37; Vt. Stat. Ann. tit. 13 § 4020; Wash. Rev. Code § 9.41.240(1); W. Va. Code § 61-7-
10(c); Wyo. Stat. Ann. § 6-8-404(d).
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accident statistics, and contemporary state laws, all of which show that Congress
reasonably believed it could reduce gun harm by enacting the challenged provisions.
D.
The majority, of course, disagrees. Its disagreement is rooted in three arguments.
First, as discussed above, the majority believes that Congress did not adequately document
the link between handguns sold by federally licensed dealers and crime. Second, the
majority contends that the challenged provisions are impermissibly overinclusive—that “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.”
Maj. Op. at 65. Third, the majority contends that the challenged provisions are
impermissible because “it is unclear whether these laws have been effective at all.” Id. at
81.
I believe these arguments are misguided and do not justify concluding that the
challenged provisions fail intermediate scrutiny. Having addressed the majority’s first
argument above, I will now address its remaining two.
i. The challenged provisions are not impermissibly overinclusive
The majority’s over-inclusiveness analysis is guided by the Supreme Court’s
decision in Craig v. Boren, 429 U.S. 190 (1976). According to the majority, “just as sex
was a poor proxy for drunk driving in Craig,” so too is age “a poor proxy for gun violence
in this case.” Maj. Op. at 67. While Craig undeniably supports the unremarkable idea that
overinclusive enactments may lack the reasonable fit we demand under intermediate
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scrutiny, the majority’s comparison of this matter to Craig suffers from at least four
problems that substantially reduce its relevance to this case.
First and most fundamentally, the majority attempts to calcify the “flexible” world
of intermediate scrutiny into a rigid statistical framework. Heller III, 801 F.3d at 282–83
(Henderson, J., concurring in part and dissenting in part) (“Intermediate scrutiny is a
flexible framework that allows for different perspectives and a range of approaches to
firearms regulation.”); see also Kolbe, 849 F.3d at 133 (explaining that intermediate
scrutiny is “less onerous” than strict scrutiny, requiring only a reasonable fit with a
substantial governmental interest). According to the majority, because less than one percent
of all young adults commit a violent crime in any given year, the challenged provisions fail
the “unduly tenuous threshold” of 2 percent supposedly established by Craig. Maj. Op. at
71.
But nothing in Craig purported to establish a roving two-percent threshold
applicable to all contexts in which courts might apply intermediate scrutiny, and I am
unaware of a case in the Fourth Circuit or anywhere else treating it as having done so.
Rather, our circuit precedent on the Second Amendment rejects such efforts to establish
hard and fast statistical rules for determining whether an enactment is a reasonable fit for
furthering an important government interest. See Carter, 750 F.3d at 468–69 & n.15
(explaining that Congress is free to regulate based on correlation evidence and that while
“[s]cientists may insist on p-values of 0.05,” Congress “is not so constrained”).
Second, any statistical comparison between Craig and the instant matter is muddied
by the fact that violent crime is nearly 100 hundred times less common than drinking and
133
driving. 29 The majority believes that “[t]he question is . . . the percentage of the group that
uses a gun in an impermissible manner.” Maj. Op. at 71. According to the majority, “[t]hat
statistic gives us some insight into the likelihood that any one person in the group will use
a gun improperly.” Id. So, the majority reasons, because the percentage of young adults
that will misuse a gun in any given year is less than two percent—which, remember, is just
the percentage of young men arrested for drunk driving in Oklahoma at one point in the
1970s—the connection between youth and gun violence is “unduly tenuous [under the]
threshold from Craig.” Id.
This approach might make more sense if drinking and driving and gun violence
were equally common. But in reality, the percentage of young adults that commit a gun
crime in any given year is below two percent because gun violence, blessedly, is much
rarer than drinking and driving. That alone tells us nothing about the reasonableness of
regulating youth access to firearms.
To illustrate this point, consider two extreme examples. Suppose some high
percentage of all people, say 80%, will engage in some infraction in a given year. Well,
then, a statistic that only 2% of a specific subset of people will commit that infraction
means not only that they rarely engage in that behavior, but also that they are far less likely
29
There are approximately “111 million self-reported episodes of alcohol-impaired
driving among U.S. adults each year.” Impaired Driving: Get the Facts, Ctrs. for Disease
Control & Prevention, https://www.cdc.gov/transportationsafety/impaired_driving/
impaired-drv_factsheet.html. In contrast, there were approximately 1.2 million violent
crimes committed in the United States in 2019. Federal Bureau of Investigation, 2019:
Crime in the United States, https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-
2019/tables/table-1.
134
than the average person to do so. Now suppose that only 0.00000001% of all people will
engage in the infraction in a given year. Under this new hypothetical, the fact that 2% of a
specific subset of people engages in that behavior takes on a very different meaning: it
might still be rare among that subset, but they are far more likely than the average person
to engage in the behavior. Governmental regulation of the subset is exponentially more
justifiable in the second case than in the first, even though the 2% figure remained constant,
because of the difference in frequency of the infraction in the overall population.
In other words, by plucking the two-percent statistic from a specific factual context
and plopping it down in a very different one, the majority erroneously justifies striking
down a long-established Congressional enactment. Craig mandates no such judicial
immodesty.
Third, Craig and the instant matter involve two very different kinds of
classification—one is based on gender, the other on age. We treat classifications based on
gender with suspicion because gender “generally provides no sensible ground for
differential treatment,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985),
and because such classifications are generally rooted “in our Nation’s ‘long and
unfortunate history of sex discrimination,’” Wilcox v. Lyons, 970 F.3d 452, 459 (4th Cir.
2020) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion)).
Meanwhile, age is not a suspect classification at all. Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 83 (2000); see also Am. Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707,
711–12, 722–23 (4th Cir. 2018) (applying rational-basis review to equal protection
challenge to city law barring 18- to 21-year-olds from owning “sexually oriented
135
businesses”). The restriction at issue in Craig was therefore repugnant to the nation’s
commitment to equal protection in a way the challenged provisions in this case are not. See
Craig, 429 U.S. at 204, 208 n.22 (arguing that “proving broad sociological propositions by
statistics” was “in tension with the normative philosophy that underlies the Equal
Protection Clause”). 30
Finally, even assuming that Craig is relevant here, the majority’s calculations still
have a numerator problem. The majority estimates that approximately 0.3% of young
adults aged 18 to 20 commit a violent crime each year. Because that figure is below the so-
called Craig threshold, the majority concludes that the challenged provisions are over-
30
The majority wonders whether “the Second Amendment rights of men can be
categorically restricted” because they commit more crimes than women. Maj. Op. at 70.
To state the obvious, any such enactment would face major Second Amendment and Equal
Protection Clause problems not faced by the challenged provisions. For a start, sex is
generally immutable, meaning that any restriction placed on male access to firearms would
be permanent for most people and therefore a much greater infringement on gun rights than
the temporary provisions at issue here. Any such restriction would also run straight into an
equal-protection problem not raised by classifying on the basis of the non-protected status
of age. This hypothetical is hardly a checkmate.
The majority also wonders about restrictions for “those living in . . . specific
geographic location[s]” and restrictions on those under age 25. Maj. Op. at 70–71. Our
analysis of any such regulation would turn on the specifics of the enactment. Any such
assessment would be highly fact-bound and is therefore not suited for abstract and
speculative discussion. With that said, municipalities can enact their own firearm
regulations, and some commentators believe that local conditions should be permitted to
play a role in assessing the constitutionality of those provisions. See, e.g., Joseph Blocker,
Firearm Localism, 123 Yale L.J. 82, 85 (2013) (arguing that Second Amendment
jurisprudence “should incorporate the longstanding and sensible differences regarding
guns and gun control in rural and urban areas, giving more protection to gun rights in rural
areas and more leeway to gun regulation in cities”). As for any aged-based regulation
applying to individuals under twenty-five, the same forces that make armed young adults
under twenty-one unique threats to the safety of themselves and others may indeed extend
later into those young adults’ twenties. But we have no cause to address that matter today.
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inclusive. But this exclusive focus on the percentage of young adults that commit a violent
crime each year is too narrow.
As discussed above, while the challenged provisions were aimed primarily at
reducing violent crime, they also aspired to promote public safety by targeting deaths and
injuries from suicides and accidents. While exact numbers are difficult to come by, it
appears that each year, hundreds, if not thousands, of Americans aged 18 to 20 are
accidentally injured in handgun accidents or intentionally harm themselves with a
handgun. 31 These figures for accidents and suicides, while not large enough to get above
the Craig “threshold,” should still be included in any over-inclusivity analysis as Congress
aimed to promote public safety by reducing both gun crime and other forms of gun harm.
Similarly, any proper comparison of this case to Craig would have to factor in the number
31
It can be estimated that about 900 Americans aged 18 to 20 are injured by
handguns each year, either unintentionally or through self-harm. I derive this estimate from
figures provided by Victor Lee et al., Emergency Department Visits for Firearm-Related
Injuries Among Youth in the United States, 2006–2015, 48 J. L., Med. & Ethics 67, 70
(2020). The study found that in the 18 to 20 cohort between 2006 and 2015, 36,780
individuals reported to a hospital emergency room for unintentional firearm injury and
2,399 reported for firearm injury caused by a suicide attempt or self-harm. Id. The study
further reported that handguns were involved in 23 percent of all injuries this age cohort
sustained over this period, with the categories “other” and “unspecified” accounting for
70.9 percent of injuries, and shotguns, hunting, and military firearms making up the
remaining 6.2 percent of injuries. Id. I then assumed that because handguns were used in
23 percent of all injuries for this cohort, they were used in 23 percent of injuries caused
unintentionally or through self-harm. I then calculated ((36,780 + 2,399) x 0.23) / 10 (the
years of the study) for a total of 901.1 handgun injuries per year from accidents and self-
harm. While it could be that handguns are involved in less than 23 percent of such injuries
to this cohort, which would inflate my estimate, there are deflationary pressures on my
estimate as well—namely, the classification of a huge majority of guns as “other” or
“unknown” and the fact that not all individuals injured by a firearm go to the emergency
room.
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of individuals who, as a result of the challenged provisions being in effect, never purchased
handguns and thus never harmed themselves or others with a handgun. This number is also
missing from the majority’s calculations. 32
In light of all these issues with comparing this case to Craig, I cannot agree that
Craig renders the challenged provisions unconstitutionally overbroad in violation of the
Second Amendment.
ii. The purported ineffectiveness of the challenged provisions does not render
them unconstitutional
The majority also argues that the challenged provisions “lack the reasonable fit
required to pass intermediate scrutiny” because they are ineffective at reducing youth crime
rates. Maj. Op. 78–82. Relatedly, the majority argues that the law is underinclusive,
meaning that it is ineffective or at least not as effective as it could be. Thus, according to
the majority, Congress did not do enough to combat harm caused by guns, and what it did
do was too ineffective—and maybe even counterproductive—to be allowed. This approach
is strongly misguided for at least four reasons.
First, it forgets that the Second Amendment is an area in which we owe substantial
deference to the judgments of Congress. Congress’s judgment that enacting the challenged
32
While there is evidence to suggest that the challenged provisions reduce gun harm
in the form of crime, accidents, and suicides, Craig did not establish that the Oklahoma
laws at issue reduced drunk driving. See 429 U.S. at 202 n.14 (noting the apparent “futility
of controlling driving behavior by the 3.2% beer statute” and that the Court “obviously
ha[d] no means of estimating how many individuals, if any, actually were prevented from
drinking by these laws”).
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provisions would promote public safety is “precisely the type of judgment that legislatures
are allowed to make without second-guessing by a court.” Kolbe, 849 F.3d at 140.
Second, it unfairly punishes Congress for not passing a more restrictive measure
and thus violates the standard principle that “a statute is not invalid under the Constitution
because it might have gone farther than it did.” NRA, 700 F.3d at 211 (quoting Buckley v.
Valeo, 424 U.S. 1, 105 (1976) (per curiam)); see also N.Y. State Rifle & Pistol Ass’n, 804
F.3d at 263 (“[G]un-control legislation ‘need not strike at all evils at the same time’ to be
constitutional.” (quoting NRA, 700 F.3d at 211)); Mance v. Sessions, 896 F.3d 699, 701,
704, 708–09 (5th Cir. 2018) (per curiam) (holding that federal laws preventing federally
licensed dealers from directly selling handguns to out-of-state buyers survived strict
scrutiny despite their underinclusivity, as governments “need not address all aspects of a
problem in one fell swoop” (quoting Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449
(2015))).
Third, as the majority recognizes, it “[is] difficult to determine the effectiveness of
these laws now.” Maj. Op. at 81. Given this conceded uncertainty, I would not have this
Court stray far beyond its area of expertise to strike down a long-established law because
of its perceived ineffectiveness. Cf. United States v. Masciandaro, 638 F.3d 458, 475–76
(4th Cir. 2011) (“We do not wish to be even minutely responsible for some unspeakably
tragic act of mayhem because in the peace of our judicial chambers we miscalculated as
to Second Amendment rights. . . . If ever there was an occasion for restraint, this would
seem to be it.” (emphasis added)).
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Fourth, courts should be especially hesitant to hold gun control measures
unconstitutional due to their perceived infectiveness, because doing so will place the nation
and its lawmakers in a formidable catch-22: pass too onerous a regulation and see it struck
down for violating the Second Amendment; pass too permissive a measure and suffer the
same result. This heads-I-win, tails-you-lose approach is a recipe for national inaction on
gun violence. While the people are free to choose that course, it ought not be imposed from
on high by us. 33
33
This would be a particularly perverse and heartbreaking result here given the
widespread belief back in 1968 that far stronger legislative action was needed to curb gun
violence. The challenged provisions are a very modest effort at gun control. See Winkler,
supra, at 253 (“In an era that would become known for the aggressive, bold federal
legislation enacted to combat a variety of social ills . . . the gun control laws of 1968 were
notable for their timidity.”). Indeed, they have been recognized as cautious measures since
before their birth. While the provisions were still being debated, Senator Joseph Tydings
of Maryland called Title IV of the Crime Control and Safe Streets Act “a very limited,
stripped down, bare minimum gun traffic control bill.” 114 Cong. Rec. 13639 (1968)
(statement of Sen. Tydings). Senator Hiram Fong of Hawaii agreed, stating that the
challenged provisions and the rest of Title IV were “entirely inadequate” and fell “far short
of the strong and effective firearms control legislation so urgently required to control
crime.” S. Rep. 90-1097, at 184 (1968) (individual views of Sen. Fong); accord 114 Cong.
Rec. 12298–99 (1968) (statement of Sen. Fong) (“[The provision barring those under 21
from purchasing handguns from federally licensed dealers] represents the least Congress
can do to meet the pressing public interest to protect against unrestricted gun traffic . . . .
But it is not nearly enough.”). President Johnson echoed the same theme in his signing
statement, calling the measures a “halfway step toward the protection of our families and
homes.” 114 Cong. Rec. 18091 (1968) (reprint of statement of President Johnson upon
signing the Omnibus Crime Control and Safe Streets Act of 1968). In short, many of the
individuals who helped to enact the challenged provisions wanted to go further but believed
the provisions were better than nothing. Now, more than fifty years later, the majority
becomes the first court in the country to strike these measures down, leaving the American
people with nothing in their place—because the provisions did not go further. The irony is
bitter.
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I therefore would not usurp the legislative role by invalidating these measures based
on a judicial assessment that they have not worked. 34
III.
The words of our colleague, Judge Wilkinson, bear repeating as a fitting admonition
for the majority’s decision: “No one really knows what the right answer is with respect to
the regulation of firearms,” thus, we federal judges ought not “[d]isenfranchis[e] the
American people on this life and death subject” by arrogating to ourselves “decisions that
have been historically assigned to other, more democratic, actors.” Kolbe, 849 F.3d at 149–
150 (Wilkinson, J., concurring).
Today, by failing to heed that admonition, the majority fundamentally errs as a
matter of law. I must, respectfully, dissent.
34
Having concluded that the challenged provisions violate the Second Amendment,
the majority does not resolve whether the provisions also discriminate against Marshall
based on her age in violation of the equal protection guarantee of the Fifth Amendment.
Because “age is not a suspect classification,” Kimel, 528 U.S. at 83, the government “may
‘discriminate on the basis of age without offending’ the constitutional guarantee of equal
protection ‘if the age classification in question is rationally related to a legitimate state
interest,’” NRA, 700 F.3d at 212 (quoting Kimel, 528 U.S. at 83) (concluding that the
challenged provisions survived rational-basis review). Because I would hold that the
challenged provisions survive intermediate scrutiny, I would also, of course, conclude that
they survive rational-basis review. Therefore, I would hold that Marshall’s Fifth
Amendment claim fails.
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