Why the handgun ban for under-21s could soon be a thing of the past

When news broke about U.S. District Judge Robert E. Payne’s decision granting class action status and a nationwide injunction (since stayed) in a case challenging the federal prohibition on handgun sales to adults younger than 21, my first email was to plaintiffs’ attorney Elliott Harding to congratulate him and invite him back on Bearing Arms’ Cam & Co to discuss the latest news in Fraser v. ATF.


Harding and named plaintiff John “Corey” Fraser first joined me back in May to talk about the case after Payne initially concluded that the ban violated the Second Amendment rights of young adults, and at the time Harding mentioned that he was seeking class action status since Fraser had just turned 21, raising the possibility that the case would be mooted now that he’s no longer subject to the prohibition. Harding was also trying to add Fraser’s younger brother, who recently turned 18, as another named plaintiff, and last week Payne granted that request. That decision, along with Payne’s approval of class action status this week, means it’s going to be impossible for the DOJ to run out the clock on the lawsuit, at least if the Fourth Circuit doesn’t overturn Payne’s decisions.

In our conversation today Elliott says he’s less concerned with the appellate court rejecting the class action certification than he is with the underlying arguments raised by DOJ, especially since a previous lawsuit he filed that challenged the same statute ultimately was mooted because the plaintiffs had aged out after the Fourth Circuit issued a favorable opinion. Keeping Fraser v. ATF as a class action lawsuit will allow the courts to consider the actual arguments at the heart of the case without providing DOJ with the opportunity to dismiss the case through lengthy delays.


While Harding acknowledges that there’s a split in the circuit courts about the constitutionality of prohibiting adults younger than 21 from purchasing the quintessential weapon used for self-defense in the United States, he expressed confidence that the Fourth Circuit will uphold Payne’s opinion, noting that the government had failed to provide any real evidence of longstanding laws barring young adults from accessing their Second Amendment rights. Instead, DOJ attorneys are largely basing their arguments on 18th and 19th-century prohibitions barring entire classes of citizens from owning guns; including freed slaves, Native Americans, and Catholics. The government contends that while those laws are appalling and clearly unconstitutional today, they were still meant to deprive groups seen to be dangerous of their collective ability to lawfully acquire and possess firearms. Young adults, according to DOJ, are too dangerous as a group to lawfully purchase a firearm at retail, though for some reason the government believes they’re not too dangerous to have a pistol gifted to them by a family member or friend.

Harding says that argument didn’t sit well with him, and it didn’t win over Payne either, who wrote in his opinion back in May that the government’s position “leads to a constitutionally untenable result”.


It is well to recall that, since the early days of the Republic, we have gone from a nation whose Supreme Court firmly declared that the free descendents of slaves were not citizens to one that bestows citizenship regardless of race. We have also gone from a nation where a husband’s legal status subsumed his wife’s to one where women are treated as full and equal members of society… Membership in the political community has grown to include numerous groups – women, minorities, and minors – that were denied inclusion at the time of the Founding.

This observation is not meant to disparage the Founders or their times. Instead, it is a testament to the ideals ingrained in our Constitution by the Founders that our Nation has greatly expanded the definition of “the people” in the 232 years since the adoption of the Second Amendment. But it is to say that, if the Court were to accept the government’s position of limiting the definition of “the people” to those understood to fall within it at the time of the Founding, the Second Amendment would exclude protections for vast swathes of the American population who undoubtably are members of the political community today.


Which is, of course, exactly what the Biden administration would love to see.

Be sure to check out the entire conversation with attorney Elliott Harding in the video window below, and stay tuned for more updates in Fraser v. ATF. This week’s decisions are incredibly important, but the case has a long way to go before the Second Amendment rights of young adults are secured.

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