One of the ongoing and unresolved debates over our right to keep and bear arms that’s playing out in the courts at the moment is the issue of when, exactly, our Second Amendment rights kick in. Several states have moved to raise the age to purchase a firearm of any kind from 18 to 21, while federal law allows for 18-year-olds to purchase long guns but not handguns from firearm retailers. Many states have set the age to carry a firearm at 21 as well, even if 18-year-olds are allowed to purchase or possess some firearms in their home, and several Second Amendment groups have filed lawsuits in states from California to Florida challenging these age restrictions; both before and after the Supreme Court handed down its decision in NYSPRA v. Bruen.
One of those lawsuits is known as Andrews v. McCraw, and it takes on the Texas prohibition on adults under the age of 21 lawfully carrying firearms. Earlier this year a federal judge granted an injunction against enforcement of that law based on constitutional concerns, but stayed his decision for 30 days to allow the state time to appeal. On Thursday, however, Texas DPS Director Stephen McCraw and Attorney General Ken Paxton filed a notice with the U.S. District Court informing the judge that McCraw plans on withdrawing his appeal; leaving the judge’s order intact and the ban on under-21s lawfully carrying unenforceable.
In response to the filing, Firearms Policy Coalition senior attorney Cody J. Wisniewski applauded the state for “doing the right thing and accepting the district court’s ruling against its law prohibiting 18-to-20-year-old adults from carrying firearms in public,” adding that “not only do young adults have the same constitutionally protected right to bear arms as all other adults, they are also among the reasons we have a Second Amendment, Constitution, and Country in the first place.”
This is very good news for gun owners, and not just those in Texas. As the FPC notes, the Texas law is just one of several that the group is challenging around the country, including Pennsylvania, Tennessee, Illinois, Minnesota, California, and Georgia. The National Rifle Association is also challenging a Florida law approved in 2018 that raised the age to purchase a firearm from 18-to-21; a measure that Florida Attorney General Ashley Moody has so far defended in federal court. That case is currently before the Eleventh Circuit Court of Appeals, which heard oral arguments back in March but has yet to release its opinion on the constitutionality of the Florida statute.
Representing the Florida Department of Law Enforcement, attorney Christopher Baum referenced the longstanding restrictions on gun access for people with felony convictions, those who have been adjudicated to be mentally ill, or have committed certain domestic violence offenses.
Baum argued that there’s an even longer history of limiting access to firearms based on age.
“Age restrictions are much older and have a much stronger historical tradition,” Baum said.
The state has also argued that people under 21 constitute a high risk group who are much more likely to act impulsively.
“[T]he unrebutted scientific evidence establishes that 18-to-20-year-olds are substantially more likely to engage in impulsive, emotional and risky behaviors that offer immediate or short-term rewards, and empirical evidence bears that out in the form of a heightened level of violent crime in that age cohort,” the state argued in a court filing. “Thus, a reasonable fit exists between the Legislature’s goal of addressing gun violence and restricting 18-to-20-year-olds from purchasing firearms.”
The second argument presented by the state of Florida is no longer legally germane under the “text, history, and tradition” test laid out by the Supreme Court in Bruen, but it’s still deserving of a quick rebuttal. Even if young adults are more likely than someone in their 40s to engage in impulsive behavior, the vast majority of adults of any age are responsible individuals who will never commit a violent crime. If the average 19-year-old is too immature to access their Second Amendment rights, why does the state of Florida allow them to get behind the wheel of a car, serve on a jury or in the National Guard, or even consider them to be a legal adult? The fact remains that Florida’s law is not narrowly tailored to advance a governmental interest in public safety, but paints with broad brushes to effectively deny the right to keep and bear arms to any adult under the age of 21 who’s reliant on a gun store and not family and friends when it comes to acquiring a gun.
As for those historical analogues that Baum spoke of, the NRA’s attorneys have pointed out that the bulk of the state’s evidence in that regard come long after the Second Amendment was ratified; something even the trial court that upheld Florida’s law recognized.
The District Court held that restrictions on young adults’ purchasing firearms are longstanding because a small minority of states restricted selling handguns to individuals under 21 years of age in the late nineteenth and early twentieth centuries and because in 1968 the federal government prohibited FFLs from selling handguns to those under 21.
The District Court reviewed the undisputed facts and “found no case or article suggesting that, during the Founding Era, any law existed that imposed restrictions on 18-to-20-year-olds’ ability to purchase firearms.”
The District Court inferred that, “[g]iven the amount of attention this issue has received, if such a law existed, someone surely would have identified it by now.”
The District Court summed up the undisputed facts in the historical record: “Florida’s restriction finds little support in the Founding Era.”
Only a handful of states imposed restrictions on young adults’ ability to purchase firearms thereafter, and such restrictions were not widespread or as complete as the Ban. By 1900, only five states (Indiana, Maryland, West Virginia, Louisiana, and Wyoming) and the District of Columbia prohibited those under the age of 21 from purchasing pistols or handguns. Just three more states (Oklahoma, New Hampshire, and South Carolina) had added similar restrictions by 1925. No state “ban[ned] the sale of long guns.” “This apparently remained the status quo until the 1960s, when Congress [enacted 18 U.S.C. § 922(b)(1)],” which prohibits FFLs from selling handguns to young adults.”
There’s simply no longstanding or widespread historical tradition of depriving young adults of their right to keep and bear arms (or the corresponding right to acquire them) to be found at the time the Second Amendment was ratified or even when the Fourteenth Amendment was approved. As has been pointed out by now in multiple courtrooms across the land, these age-based restrictions are largely a modern creation of the gun control lobby and their political allies, and as such, should not be allowed to remain in effect. Texas officials like Paxton and McCraw seem to agree, and I’d love to see AGs in other red states that have similar bans on the books to follow suit. There are enough blue state bans that are being challenged that SCOTUS will eventually have a chance to weigh in, but it’s high time that Republican AGs stop defending the indefensible denial of Second Amendment rights to young adults.