NRA, Florida argue over Bruen's impact on challenge to Florida's ban on gun sales to under-21s

NRA, Florida argue over Bruen's impact on challenge to Florida's ban on gun sales to under-21s
(AP Photo/Brennan Linsley)

It’s not a new case, but the National Rifle Association now has new legal ammunition in its lawsuit challenging Florida’s ban on gun sales to adults under the age of 21. After a trial court judge reluctantly upheld the law in a decision last year, saying he had major questions about the legality of the ban but could do nothing based on existing court precedent, the case was appealed to the Eleventh Circuit, where a three-judge panel heard oral arguments back in March.

A ruling has yet to come down, however, and this week both the NRA and Florida Attorney General Ashley Moody, who’s defending the ban, filed new briefs with the appellate court hoping to use the Bruen decision to bolster their arguments.

The state’s attorneys, relying on previous court rulings, have argued that gun regulations are permissible if they are consistent with the nation’s historical tradition of firearms regulation. Examples of other regulations include preventing felons and certain people with mental illness from having guns.

In a three-page “supplemental authority” filed Thursday, Moody’s office cited the Supreme Court’s 6-3 ruling in the case known as New York State Rifle & Pistol Association v. Bruen to defend the Florida law.

Senior Deputy Solicitor General Christopher Baum pointed to parts of Justice Clarence Thomas’ majority opinion to support the state’s stance about regulations being allowed if they are consistent with traditions.

“Analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin,” Thomas wrote.

Florida “has made that showing here,” Baum wrote.

“Those under 21 may be prohibited from purchasing firearms because such restrictions are firmly grounded in historical tradition,” Baum wrote.

Uh, no. Bans on narrow categories of individuals who have lost their right to keep and bear arms because of a felony conviction or an adjudication of mental illness isn’t anywhere close to telling every law-abiding adult under the age of 21 that they cannot access their right to keep and bear arms by lawfully purchasing a long gun from a federally licensed firearms dealer. As the NRA pointed out in its own supplemental brief, Florida’s law simply doesn’t have any historical analogue.

The state cited “no historical analogues imposing a burden comparable to the complete prohibition on young adults purchasing a firearm,” attorney John Parker Sweeney wrote.
“At the time of the founding, no law imposed restrictions on young adults’ ability to purchase firearms. The 19th and 20th century laws cited by appellee [the state] did not impose a burden comparable to the ban because they allowed young adults to purchase at least long guns,” Sweeney wrote.
Sweeney also used Thomas’ words to defend the gun-rights organization’s opposition to the law.
The Bruen ruling “rejected a ‘handful of late 19th century [laws]’ as insufficient to establish historical tradition and rejected 20th century laws as lacking ‘insight into the meaning of the Second Amendment,’” Sweeney wrote.
The state has not cited any “historical law treating ordinary, law-abiding young adults like those convicted of a felony or adjudicated as mentally ill — in the context of the right to keep and bear arms or otherwise,” the NRA’s lawyer argued.
“Florida’s age-based ban is not relevantly similar to restrictions imposed after due process. It is inconsistent with Bruen,” Sweeney wrote.
It is inconsistent with Bruen, and this shouldn’t be a difficult question for the Eleventh Circuit to decide, especially if the court relies on the “text, history, and tradition” test laid out by Justice Clarence Thomas in the Bruen decision. How strictly the appellate court adheres to that test is very much an open question, however, and as Florida’s brief demonstrates, backers of current gun control laws will try to misread and misinterpret the history of the right to keep and bear arms as much as they can if they believe it helps them keep their restrictions in place.
This could be one of the first cases decided by an appellate court post-Bruen, and while the case is likely to be appealed to the Supreme Court no matter how the Eleventh Circuit rules, the appeals court decision will be an important one on its own because it will give us a sense of how the lower courts are going to react to the SCOTUS smackdown to the “tiered scrutiny” test that’s been widely adopted (and misused) by federal courts in the years since the Heller decision was handed down. The NRA has the better argument, especially in light of the Bruen decision, but that doesn’t guarantee the court will accept it or willingly follow the test that the Supreme Court has instructed it to use.