Well, we still haven’t heard anything from Attorney General Pam Bondi on what she wants to do with President Donald Trump’s gun executive order. However, ABC News reported on Friday that the Department of Justice claims to have secured an extension for her 30-day review of executive branch gun policy.
The new deadline is today. So, we’re waiting once again to see what comes of this executive order.
But we got more big news out of the federal courts this weekend. The Eleventh Circuit upheld Florida’s under 21 gun sales ban. That defies my prediction from a few years back that the prohibition likely wouldn’t last much longer, but it also sets up a potential Supreme Court showdown thanks to a dueling Fifth Circuit ruling from January.
I take a look at the points of contention between the two opinions.
We also got a new ruling upholding the National Firearms Act’s (NFA) short-barrel rifle regulations. That one relied heavily on 1939’s US v. Miller, a fairly obscure case that actually underpins a big part of the Supreme Court’s Second Amendment jurisprudence. I explain why it still appears to be good law that could hinder further NFA challenges even after Heller and Bruen.
Plus, New York Times gun reporter Thomas Gibbons-Neff joins the podcast to discuss his new role at the paper.
Eleventh Circuit Upholds Florida Under-21 Gun Sales Ban
By Stephen Gutowski
The Second Amendment doesn’t protect the right of 18-to-20-year-olds in Florida to buy a gun, according to a new federal appeals court ruling.
On Friday, a full panel of the Eleventh Circuit upheld the Sunshine State’s ban on those under 21 buying guns. In an 8-4 decision, it argued the law met the standard for viable gun restrictions SCOTUS handed down in New York State Rifle and Pistol Association v. Bruen. The panel held the state’s age restriction is backed by enough of a historical tradition to survive a challenge by the National Rifle Association (NRA).
“The Florida law that prohibits minors from purchasing firearms does not violate the Second and Fourteenth Amendments because it is consistent with our historical tradition of firearm regulation,” Chief Judge Willaim Prior wrote for the majority in NRA v. Bondi. “From the Founding to the late-nineteenth century, our law limited the purchase of firearms by minors in different ways. The Florida law also limits the purchase of firearms by minors. And it does so for the same reason: to stop immature and impulsive individuals, like Nikolas Cruz, from harming themselves and others with deadly weapons. Those similarities are sufficient to confirm the constitutionality of the Florida law.”
The ruling deals another blow to gun-rights advocates hoping to peel back some of the restrictions Florida lawmakers imposed after the Parkland shooting and other age-based restrictions around the country. While they have made progress in loosening some of Florida’s gun laws in recent years, including its gun-carry regime, advocates have seen little progress in undoing the post-Parkland laws. Similarly, advocates have secured a series of wins against age restrictions across the country but have had no success in court against Florida’s law.
Just a month after a 19-year-old shooter murdered 17 people and injured 17 more at Marjory Stoneman Douglas High School in Parkland, Florida, the state legislature banned the sale of firearms to anyone under 21 years old. The NRA quickly filed suit, but a district court judge sided with Florida. In March 2023, a three-judge panel of the Eleventh Circuit again ruled in favor of Florida’s age restrictions.
“Because Florida’s Act is at least as modest as the firearm prohibitions on 18-to-20-year-olds in the Reconstruction Era and enacted for the same reason as those laws, it is ‘relevantly similar’ to those Reconstruction Era laws,” Judge Robin Rosenbaum, an Obama appointee, wrote for the majority. “And as a result, it does not violate the Second Amendment.”
The NRA then asked the Eleventh Circuit for an en banc review of the case, which came to the same conclusion on Monday. However, the en banc panel focused more squarely on the legal limitations those under 21 faced during the Founding Era.
“We draw two lessons from the legal treatment of minors at the Founding,” Judge Prior, a George W. Bush appointee, wrote. “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.”
However, not everyone on the Eleventh Circuit agreed. Judge Andrew L. Brasher, a Donald Trump appointee, accused the majority of twisting the historical record and imposing limits on gun rights it wouldn’t apply to other parts of the Constitution.
“The Supreme Court has warned us that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'” he wrote in a dissent joined by three other judges. “But the majority has read an age limit into the Second Amendment and that amendment alone.”
He noted Florida wasn’t able to produce any Founding Era laws that explicitly imposed age restrictions on gun purchases. He also questioned the relevance of later restrictions.
“The Commissioner has presented no analogous Founding-era regulation that precluded young adults from purchasing firearms,” Judge Brasher wrote. “The record of historical statutes the Commissioner did compile, which does not begin until the 1850s, does not establish a tradition of outlawing all firearms purchases by eighteen- to twenty-one-year-olds. These statutes were passed many years after the Founding, and they are meaningfully dissimilar from Florida’s ban in ways that undermine the ‘how and why’ analogy.”
Judge Prior responded in part by accusing the dissenters of ignoring that 18-to-20-year-olds were not treated as adults during the Founding Era in the same way they are today.
“The dissent’s attempt to avoid the weight of legal history by labeling individuals between the ages of 18 and 21 as ‘adults’ is unavailing,” he wrote. “The dissent fails to define its category of ‘adults’ for federal constitutional purposes; it discounts the key fact that, at the Founding and until the late twentieth century, the age of majority was 21. Instead of reviewing the legal analogues for regulating the rights of individuals under the age of 21 as minors, the dissent treats contemporary ‘adults’ as the so-called ‘analogues’ of the adults of the Founding era.”
Everytown for Gun Safety cheered the decision.
“Prohibiting 18-21 year olds from purchasing firearms is a commonsense tool for preventing gun violence, and today’s decision confirms that it’s also constitutional,” Eric Tirschwell, executive director of Everytown Law, said in a statement. “This result will save lives, and it is notable that the strong majority in today’s decision includes judges appointed by both Republican and Democratic Presidents.”
Florida Attorney General James Uthmeier (R.) argued the Eleventh Circuit’s ruling was wrong and said he wouldn’t defend it should the Supreme Court take up the case.
“Notwithstanding CA11’s opinion today, I believe restricting the right of law-abiding adults to purchase firearms is unconstitutional,” he wrote on social media. “The Fifth Circuit quite recently reached the same conclusion. If the NRA decides to seek further review at SCOTUS, I am directing my office not to defend this law. Men and women old enough to fight and die for our country should be able to purchase firearms to defend themselves and their families.”
John Commerford, Executive Director of the NRA’s Institute for Legislative Action, decried the ruling. He said the NRA would keep trying to overturn Florida’s law through litigation or legislation.
“The Eleventh Circuit’s decision is an affront to the millions of peaceable 18-to-20-year-olds across the country who have the same right to defend themselves as any other adult,” Commerford told The Reload in a statement. “The NRA will continue to fight this unconstitutional law, whether at the U.S. Supreme Court or in the Florida Legislature.”
Analysis: The Federal Court Split Over Under-21 Gun Rights [Member Exclusive]
By Stephen Gutowski
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.
Podcast: New York Times Gun Culture Reporter Thomas Gibbons-Neff On His New Beat [Member Early Access]
By Stephen Gutowski
We’ve been highlighting the fact that The New York Times, the largest paper in the country, has finally hired a gun-beat reporter. So, this week, we invited him on the show to talk about his approach and goals.
Reporter Thomas Gibbons-Neff has started consistently doing gun stories for The Grey Lady, as The Times has long been known. It’s not his first assignment. I also wouldn’t call it his most challenging since he went from active-duty service in Afghanistan to covering it and, later, the war in Ukraine.
Still, as Gibbons-Neff readily admits, covering guns in America for a paper like The Times is not without its own challenges. One of the things he has to navigate in order to find sources is The Times‘ reputation, especially given its aggressive editorial stance in favor of new gun restrictions and bans.
But he agreed his background and continual focus on firearms should help him produce better stories than many in the gun world might expect. And he said he’s going to work to earn the gun-owning community’s trust that he’ll be fair, mainly by demonstrating it in the pieces he publishes.
You can listen to the show on your favorite podcasting app or by clicking here. Video of the episode is also available on our YouTube channel. An auto-generated transcript is available here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.
Get a 30-day free trial for a subscription to The Dispatch by clicking here.
Plus, Contributing Writer Jake Fogleman and I talk about a ruling out of the Seventh Circuit Court of Appeals that found short-barreled rifles aren’t “arms” under the Second Amendment. We also talk about a pair of state court rulings, one out of Oregon upholding the state’s purchase permit requirements and magazine ban, and another out of Massachusetts that upheld the state’s requirement that out-of-state visitors get a special permit before bringing their guns into the state. Then, I talk with Idaho Senator Mike Crapo (R.) about the Hearing Protection Act and his views on the GOP’s plans for gun policy in Congress.
Analysis: Does Miller Still Matter? [Member Exclusive]
By Stephen Gutowski
In 1939, the Supreme Court handed down its first significant ruling on the scope of the Second Amendment. It’s still having an impact today, but should it?
On Monday, a federal appeals court upheld the National Firearms Act’s (NFA) restrictions on shot-barrel rifles. It did so primarily by citing 1939’s US v. Miller since that ruling upheld the same law’s restrictions on short-barrel shotguns.
“In sum, Miller’ has direct application in [this] case,’ and we therefore follow it,” Judge Joshua Kolar wrote in US v. Rush. “This alone is dispositive and brings Rush’s challenge to a halt.”
Since the Supreme Court handed down Miller, however, it has also handed out five other significant Second Amendment rulings. Most notably, it issued landmark rulings in DC v. Heller and New York State Rifle and Pistol Association v. Bruen–with the latter establishing an explicit Second Amendment test. Does Miller survive those rulings, and does it still offer any insight?
First, what exactly does Miller say?
Well, not a whole lot. It is a short, unanimous opinion from a case that’s shrouded in controversy–perhaps more now than ever before. Even still, it doesn’t attempt to settle the question of what exactly the Second Amendment means.
Instead, the High Court in Miller focuses on just whether the text of the amendment specifically covered the short-barrel shotgun at issue in the case.
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument,” Justice James Clark McReynolds wrote for a unanimous Court. “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
The High Court’s justification for this finding has been the primary legacy of Miller ever since.
“[T]he Militia comprised all males physically capable of acting in concert for the common defense,” McReynolds wrote. “‘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.”
That reasoning has lived on because, as Judge Kolar noted in the Seventh Circuit opinion, it served as the starting for the Supreme Court’s holding in 2008’s Heller case. The Heller Court argued Miller’s holding was not dispositive of an individual right to keep and bear arms. Instead, it merely established that not all weapons are protected under the Second Amendment.
“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons,” Justice Antonin Scalia wrote for the majority. “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
The Heller Court went on to articulate a Miller-based standard for what constitutes a Constitutionally-protected arm.
“We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits,” Scalia wrote. “Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’”
“The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense,” Scalia continued. “‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’ Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.”
The High Court then doubled down on the historical aspect of the inquiry in 2022’s Bruen. Still, it noted, and notably did not overturn, the “common use” standard in Miller.
“After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right,” Justice Clarance Thomas wrote for the majority. “We noted that, ‘[l]ike most rights, the right secured by the Second Amendment is not unlimited.’ ‘From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’ For example, we found it ‘fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ that the Second Amendment protects the possession and use of weapons that are ‘in common use at the time.’”
Judge Kolar and his colleagues on the Seventh Circuit panel that decided Rush certainly think that means Miller is still in good standing and still relevant.
“We are left with the conclusion that Miller survives Bruen. We also recognize that ‘the constitutional issues at stake are weighty.’” he wrote. “Therefore, while we meet our duty to address arguments raised directly by the parties, we also deem it appropriate to decide this case on the simple fact that Miller controls.”
They found Miller alone was enough to doom Rush’s defense. After all, the charges are nearly identical.
“Rush’s attempt to factually distinguish Miller is unavailing,” Judge Kolar wrote. “The fact that Miller involved an unregistered, short-barreled shotgun and Rush was convicted of possessing an unregistered, short-barreled rifle does not control the outcome of this appeal. Both are long guns with shortened barrels, which are dangerous because they are more powerful than traditional handguns yet are easier to conceal. And both involve a characteristic that makes the firearm especially attractive to criminals while adding little—if any—functionality to the firearm for lawful use.”
“Perhaps more importantly, both were regulated under the NFA provisions in effect at the time of the defendants’ convictions—provisions that simply required the registration of the firearms.”
Still, if anything, Kolar argued Heller and Bruen strengthened the case for the NFA’s short-barrel rifle regulations. The same goes for US v. Rahimi, the Supreme Court’s most recent Second Amendment ruling. In those cases, the High Court has not just established that firearms have to be in “common use” to be protected but also that permitting schemes and temporary gun restrictions present lesser burdens on the right to keep and bear arms.
“Rahimi and Bruen clarify the logic of Miller that onerous restrictions on weapons are distinct from licensing requirements of firearms,” Kolar wrote.
“§5861 is merely a taxing statute, so just as the ‘why’ regulates firearms with characteristics uniquely suitable for criminal purposes, the ‘how’ of the regulation has little impact on lawful possession for armed self-defense,” he continued. “Section 5861 does nothing to offend the Constitution that has stood as a bulwark between the people and governmental overreach for centuries. It simply makes those who desire a weapon likely to breach the peace register that weapon and pay a tax.”
There are a number of dubious contentions throughout this series of rulings that span nearly a century.
Miller‘s claim that short-barrel shotguns are neither common nor useful for militia service, especially coming off WWI where the trench gun was so effective the Germans claimed its use constituted a war crime, is unsupported by any evidence. Heller‘s claim that Miller wasn’t arguing military arms are most protected by the Second Amendment is puzzling. Rush‘s argument that the NFA targeted short-barrel shotguns and rifles because they’re particularly dangerous is highly disputed since that provision was originally part of a later-discarded handgun ban.
Still, the case law is relatively straightforward. Miller is not only still good law; it’s arguably the first building block of the Supreme Court’s entire Second Amendment jurisprudence. It survives Bruen because Bruen is based on Heller, which is itself based on Miller.
Of course, as Heller emphasizes, Miller doesn’t have a whole lot to say about the specifics of the Second Amendment. It just says that short-barrel shotguns aren’t popular enough to be protected. As the court in Rush determined, that’s probably enough to cover short-barrel rifles as well.
Now, it’s entirely possible the Supreme Court will eventually set a more solid standard for what constitutes “common use” that short-barrel rifles and shotguns end up falling into, especially if people keep buying more of them over time. Then Miller‘s practical holding will no longer apply, though its reasoning still will.
But that hasn’t happened yet. So, challenges to the NFA’s short-barrel regulations will likely continue to face an uphill battle.
That’s it for now.
I’ll talk to you all again soon.
Go Birds,
Stephen Gutowski
Founder
The Reload
