Glock pistols on display at the 2024 NRA Annual Meeting
Glock pistols on display at the 2024 NRA Annual Meeting / Stephen Gutowski

Analysis: SCOTUS Ducks Brewing Age Restriction Battle [Member Exclusive]

The Supreme Court of the United States (SCOTUS) declined to take up a challenge to minimum age requirements for gun carry this week, but the fight over gun rights for those under 21 isn’t going away any time soon.

In its Monday orders list, SCOTUS denied certiorari in Worth v. Jacobson, a challenge to Minnesota’s law requiring concealed carry permit applicants to be at least 21 years old. The case appeared before The Court after the state appealed an Eighth Circuit decision striking down that restriction as a violation of the Second Amendment. Therefore, The Court’s denial leaves that decision intact as binding precedent and immediately allows 18-to-20-year-olds to begin applying for permits.

While that outcome hands gun-rights advocates a victory, it isn’t likely to be as satisfying to them as SCOTUS issuing a formal opinion in the case with the same result. Indeed, despite winning at the appellate level, the gun-rights groups involved in the suit actually sided with Minnesota in asking The Court to take up the case rather than letting the decision stand.

That’s because appeals courts nationwide confronting various age-related firearm restrictions have reached disparate conclusions on their legality. And The Court hasn’t given any direct guidance on the issue to this point.

In addition to the Eighth Circuit’s Worth decision, the Third Circuit Court of Appeals has ruled 18-to-20-year-olds have a constitutionally protected right to bear arms on two separate occasions. Most recently, it ruled against a Pennsylvania law that banned gun carry by 18-to-20-year-olds during declared emergencies and denied the state’s request to revisit the question en banc.

“We understand that a reasonable debate can be had over allowing young adults to be armed, but the issue before us continues to be a narrow one,” Third Circuit Judge Kent Jordan wrote in Lara v. Comm’r Pa. State Police. “Our question is whether the Commissioner has borne his burden of proving that Pennsylvania’s restriction on 18-to-20-year-olds’ Second Amendment rights is consistent with the principles that underpin founding-era firearm regulations, and the answer to that is no.”

Likewise, the Fifth Circuit Court of Appeals opined on the Second Amendment rights of 18-to-20-year-olds this January when it struck down the federal ban on licensed dealers selling guns to people under 21.

“The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th-century evidence ‘cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence,’” Judge Edith Jones wrote in Reese v. ATF.

On the other hand, a Fourth Circuit Court of Appeals panel is set to issue its own decision on the same federal handgun restrictions after hearing a similar case that same day. Based on the composition of the panel and the tenor of oral arguments, it is likely that the Fourth Circuit will soon reach the opposite conclusion. Meanwhile, other circuits have already issued conflicting opinions on the Second Amendment rights of young adults.

Last November, the Tenth Circuit Court of Appeals upheld Colorado’s ban on gun sales to those under 21 after determining that it did not even intersect with the Second Amendment by citing dicta related to commercial sales from the Supreme Court’s 2008 DC v. Heller opinion.

“We hold that as an aged-based condition or qualification on the sale of arms, SB 23-169 is covered by the safe harbor and, as such, falls outside of the scope of the Second Amendment’s right to ‘keep and bear’ arms,” Judge Richard Federico wrote in RMGO v. Polis, where the court denied a preliminary injunction against the law. “In our effort to discern the best reading of the quartet of Second Amendment cases, we conclude that the prohibition on conduct contained within SB 23-169 does not require us to proceed beyond Bruen step one.”

Finally, the en banc Eleventh Circuit Court of Appeals upheld Florida’s nearly identical under-21 gun sales ban on the merits last month because it said that 18-20-year-olds were treated as “minors” with limited rights around the time of the Founding.

“We draw two lessons from the legal treatment of minors at the Founding,” Chief Judge William Pryor wrote in NRA v. Bondi. “First, minors generally could not purchase firearms because they lacked the judgment and discretion to enter contracts and to receive the wages of their labor. Second, minors were subject to the power of their parents and depended on their parents’ consent to exercise rights and deal with others in society.”

As a result, the status of age-based Second Amendment jurisprudence is now something of a hash, with individual rulings from five separate appeals courts reaching competing conclusions under different rationales. Perhaps The Court views that as a tenable situation for the time being in cases dealing with state laws, like Worth, where differences in approach are to be expected and their ramifications limited (every other state under the Eighth Circuit already provides a legal avenue for 18-to-20-year-olds to carry firearms).

However, The Court addressing the issue becomes more difficult to avoid when federal law is involved.

The Trump administration’s Department of Justice has said it is still considering whether to appeal Reese to SCOTUS. But that may not matter either way, because it’s likely that if gun-rights plaintiffs lose in the Fourth Circuit, they will appeal the fight over handgun sales all the way to the Supreme Court. Perhaps The Court has opted to keep its plate clear of age-related gun-carry cases in particular. After all, sales and acquisition laws have proved to be the most divisive age-related restrictions among the lower courts so far, and the subject could also allow SCOTUS to address its Heller language related to “presumptively lawful” commercial gun regulations, which have appeared in additional Second Amendment cases as well.

Alternatively, The Court may simply have a limited appetite for expanding Second Amendment jurisprudence at the moment, as its current wait-and-see approach to pending hardware ban and other hot-button gun cases would seem to suggest.

Either way, Minnesota adults under the age of 21 received a meaningful expansion of their Second Amendment rights thanks to The Court’s inaction Monday. Whether SCOTUS will take action to allow young adults elsewhere to reap similar benefits remains an open question.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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