A federal appeals court ruled those under 21 don’t have a right to buy handguns from licensed gun dealers.
Last Wednesday, a three-judge panel on the Fourth Circuit Court of Appeals sided with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in a 2-1 ruling. It found that the federal regulations on handgun sales are similar enough to Founding-Era legal tradition. It ruled that the modern restriction could therefore stand under the test developed by the Supreme Court in 2022’s New York State Rifle and Pistol Association v. Bruen.
“Because § 922(b)(1) is ‘relevantly similar’ to founding-era restrictions on the commercial sale of firearms, we are satisfied that the Second Amendment permits the law’s burden on an 18-to-20-year-old’s right to purchase a handgun.” Judge Harvie Wilkinson wrote in McCoy v. ATF.
This ruling deepens the circuit split on the issue of under-21 handgun regulations, as the Fifth Circuit struck down the same federal ban in January, but the Eleventh Circuit upheld a similar Florida law in May. That split makes it more likely the Supreme Court takes up the question of under-21 gun rights sooner rather than later.
The ATF argued the law is constitutional under Bruen because Congress enacted the modern restriction for similar reasons, and the restriction imposes similar burdens as historical gun restrictions. It cited founding-era contract law as an analogue to the prohibition on handgun sales to 18 to 20-year-olds. It largely focused on how Founding-Era law prevented those under 21 from having legally binding contracts, making it financially risky for sellers to transact with minors.
The panel agreed.
“At English common law, a person under the age of 21 was considered an ‘infant’ for purposes of contracting, and infants were not bound by their contracts,” Judge Wilkinson wrote for the majority.
The panel argued that the nature of founding-era contracts with “infants” made selling to those under 21 difficult during the Founding Era.
“The infancy doctrine imposed a severe burden on a minor’s ability to purchase goods, including firearms, during the founding era. Eighteenth-century America was a credit economy,” Judge Wilkinson wrote. “And since infants could ‘not be held liable for failing to uphold their side of a contract over goods,’ extending credit to minors was a ‘considerable risk’… Whoever entered into a contract with an infant could lose substantial amounts of money.”
The Court extended its argument, explaining that the historical laws are similar in “how” they restrict firearm purchases based on age.
“With respect to ‘how,’ the infancy doctrine and § 922(b)(1) both make it exceedingly difficult for a minor to purchase a handgun from a commercial seller, and they do so in similar ways,” Judge Wilkinson wrote. “Both subject sellers to a risk of loss if they sell a handgun to a minor. Because of that risk, sellers are far less likely to transact with a minor and, in turn, a minor’s ability to purchase a handgun is severely burdened. To be sure, the risk sellers face under § 922(b)(1) is more severe than under the infancy doctrine. Section 922(b)(1) includes the possibility of imprisonment, whereas the infancy doctrine exposed sellers only to the risk of financial loss. But the relevant burden, for purposes of our analysis, is the burden on the minor purchasers challenging the law. And from the perspective of a minor purchaser, the effects of § 922(b)(1) and the infancy doctrine are virtually the same. Whether he faces criminal penalties or a law that transforms his sales into free giveaways, a rational merchant is highly unlikely to sell a gun to a minor.”
Judge Wilkinson also argued Congress adopted the modern law for similar reasons as the historical practice.
“As for ‘why,’ § 922(b)(1) and the infancy doctrine share a common rationale. Both were motivated by a recognition that individuals under the age of 21 lack good judgment and reason,” he wrote. “As we have explained, the infancy doctrine responded to the concern that infants lack the ‘judgment and discretion’ to transact with more sophisticated adults. Similarly, Congress enacted § 922(b)(1) to prohibit firearm sales to ’emotionally immature’ and ‘thrill-bent juveniles and minors prone to criminal behavior.'”
The plaintiff argued that the Militia Act of 1792 implied the right to purchase handguns for those over 18, as it required them to show up armed for militia service. Judge Wilkinson disagreed because he said the Militia Act also states that while those who have reached the age of 18 may serve in the Militia, the government didn’t force them to join.
“The Militia Act did not mandate 18 as the universal age of militia eligibility. It explicitly allowed states to exempt individuals from militia service ‘notwithstanding their being above the age of eighteen,” he wrote. “This reflected the fact that the age of enrollment fluctuated a great deal around the founding. Many state laws set the age of militia service at 21, for example. So even if the Militia Act is evidence of some constitutional right to purchase firearms, it cannot stand for the proposition that such a right vested firmly at 18.”
Furthermore, he said the obligation to keep an arm doesn’t imply the right to buy one.
“The Act required a militiaman to ‘provide himself with a good musket or firelock.’ Not purchase for himself,” Judge Wilkinson wrote. “There were of course many ways for an infant to ‘provide’ himself with a firearm without going out and purchasing one himself.”
He argued later 19th-century laws, following the Founding era, also reinforced the Court’s opinion.
“An illustrative example is Indiana’s 1875 law, which made it ‘unlawful for any person to sell… to any other person, under the age of twenty-one years, any pistol,'” Judge Wilkinson wrote.
Lastly, the Court said that finding an identical founding era law preventing sellers from selling handguns to those under 21 would be impossible because handguns were uncommon at the time of the founding.
“Because handgun ownership was not prevalent until the mid-nineteenth century, it is not surprising that the government cannot point us to a ‘historical twin’ from the founding era,” Judge Wilkinson wrote. “But as soon as handguns came on the scene, legislatures quickly prohibited their sale to minors, consistent with our Nation’s regulatory tradition of restricting firearm sales to infants,”
Judge Wilkinson concluded the modern law barring federally licensed dealers from selling handguns to anyone younger than 21 passes the Bruen test.
“From English common law to America’s founding and beyond, our regulatory tradition has permitted restrictions on the sale of firearms to individuals under the age of 21,” he wrote. “Section 922(b)(1) fits squarely within this tradition and is therefore constitutional.”
Judge Toby Heytens, a Joe Biden appointee, joined Wilkinson, a Ronald Reagan appointee, in the majority. Mavin Quattlebaum, a Donald Trump appointee, dissented. Judge Quattlebaum primarily challenged the Court’s opinion that relevant historical laws justify the law.
“The federal handgun purchase ban implicates the Second Amendment’s text because 18- to 20-year-olds are part of ‘the people,’ a ban on purchasing infringes the right to ‘keep and bear’ arms and the federal handgun purchase ban is not a presumptively valid condition or qualification on commercial sale,” he wrote. “The government has not met its burden to justify the regulation with relevant principles from our Nation’s historical tradition of firearm regulation.”
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