Almost exactly two years ago, I predicted Florida’s under-21 gun sales ban was unlikely to last. On Friday, the Eleventh Circuit Court of Appeals proved me wrong.

While I correctly surmised the full circuit would rehear the case after a three-judge panel OKed the ban in 2023, that en banc panel upheld the ban by an 8-4 vote. Additionally, the Republican legislature has declined to repeal the prohibition despite at least rhetorical backing from Republican Governor Ron DeSantis. That has cemented Florida’s ban for now.

However, it has also created something of a circuit split against a January ruling in the Fifth Circuit that tossed the federal ban on handgun sales to 18-to-20-year-olds. That could entice the Supreme Cout to weigh in on the gun rights of those under 21. So, it’s worthwhile to see the points of contention between the two recent rulings.

Though I was correct that the Eleventh Circuit en banc panel would focus more on Founding Era regulations than the lower panel, they concluded the history of the early republic tipped in Florida’s favor. Chief Judge Willaim Prior argued for the majority that “at the Founding, a person was an ‘infant’ or a ‘minor’ in the eyes of the law until age 21.”

He extrapolated from that the conclusion they would not have been allowed to purchase firearms.

“We draw two lessons from the legal treatment of minors at the Founding,” Judge Prior, a George W. Bush appointee, 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.”

Judge Edith Jones, writing for the unanimous Fifth Circuit three-judge panel in January, came to the exact opposite conclusion.

“Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety,” she wrote in Reese v. ATF.

She pointed to the 1792 Militia Act as evidence. She noted it required militiamen, which included 18-year-olds, to report with their own arms.

“While the core of the right is rooted in self-defense and unconnected with the militia, the text of the Amendment’s prefatory clause considered along with the overwhelming evidence of their militia service at the founding indicates that eighteen-to-twenty-year-olds were indeed part of ‘the people’ for Second Amendment purposes,” Jones wrote.

Judge Prior argued the state and federal militia acts from the Founding Era don’t bolster the argument those under 21 could buy guns. Instead, he said they provide evidence they’d need a parent or guardian to purchase firearms for them–something still legal under Florida’s law.

“[T]he militia laws establish no national ‘expectation of gun ownership’ by minors,” he wrote. “They establish only that many state legislatures determined that minors could be required to bear arms provided by their parents and to use those arms under the command and supervision of militia officers.”

Judge Jones also pointed to another way the Founding Era employed armed men under 21: early law enforcement.

“Moreover, contrary to the government’s recitation of concerns expressed in the colonial and founding eras about the ‘irresponsibility’ of those under twenty-one, these young individuals were expected to keep the peace rather than disturb it,” she wrote. “In addition to serving in the militia, eighteen-to-twenty-year-olds could be obliged to join the posse comitatus, for which the minimum age was often fifteen or sixteen, and bring ‘such arms or weapons as they have or can provide.’ Before the emergence of standing police forces, the posse comitatus was made up of civilians who accompanied sheriffs or other officials in pursuit of fugitives.”

She also noted there were no direct statutory age restrictions on gun sales during the Founding Era and later restrictions came too late to be helpful in a Bruen analysis.

“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,'” Jones wrote.

While Judge Prior chose not to rely on later statutory age restrictions on gun sales in his majority opinion, he rejected the need for one from the Founding Era. Instead, he relied on other evidence to support his contention that those under 21 wouldn’t have been permitted to buy firearms.

“We also reject, as contrary to Supreme Court precedent, Judge Branch’s dissenting opinion that we must rely only on firearm-specific regulations from the Founding era and cannot consider the common law of contracts that governed minors,” he wrote. “Reliance on the common-law regime of contracts is appropriate because the Florida law prohibits the sale of firearms—a kind of contract. And it adheres to Supreme Court precedent because, in Rahimi, the Supreme Court relied on principles’ [w]ell entrenched in the common law’ that were not limited to firearms.”

If the Supreme Court does decide to take up the question of gun rights for those under 21, these are the answers they’re going to have to come up with.

Does the evidence imply 18-to-20-year-olds barred from buying guns by common law during the Founding, even if there was no explicit statute banning sales to them? Did their ability to serve in the militia uncut that idea? How about their service in posses? Even if not, have 18-to-20-year-olds gained adult status since the Founding Era as far as it relates to buying guns? How about later age restrictions on gun purchases? Do those matter?

Of course, the High Court has moved slower than most with a stake in those questions would probably like.

This particular split isn’t perfectly clean, either. The appellate courts disagree over the same fundamental issue but not the same law. Plus, the Fifth Circuit case could still go en banc, which would probably add years to its journey.

So, it could be a long wait. After all, lower courts have been disagreeing on these questions for quite some time now without any new guidance from the Supreme Court.