A federal judge in West Virginia handed young adults (along with the Second Amendment Foundation and West Virginia Citizens Defense League) a huge victory on Friday, granting summary judgment and declaring the federal prohibition on commercial handgun sales to adults under the age of 21 is unconstitutional. In his decision, U.S. District Judge Thomas Kleeh flatly rejected the argument offered by the Department of Justice that the prohibition is okay because under-21s still have the right to possess a handgun under federal law, and can even lawfully obtain one from a parent… at least in theory.
Kleeh found that argument nonsensical, pointing out that the “Plaintiffs do not dispute that 18-to-20-year-olds who are law-abiding adults and not otherwise banned from firearm possession are not prohibited from possessing handguns.” Instead, the injury done to plaintiffs Steven Robert Brown and Benjamin Weekley “is that they cannot purchase handguns and handgun ammunition from FFLs as a result of the age-based ban.”
Defendants’ specific arguments are likewise unavailing. First, the suggestion Plaintiffs suffer no injury because a parent or guardian can simply purchase the gun and give it to an 18- to 20-year-old overly minimizes Plaintiffs’ plight. Deprivation of a constitutional right is a deprivation and, necessarily, an injury in fact, no matter if an “easy” and lawful work-around exists. Moreover, the Supreme Court of the United States previously rejected the Government’s reasoning in a different context. In Brown v. Entertainment Merchants Association, 564 U.S. 786, 802 (2011) the Supreme Court, deciding a First Amendment issue, struck down a California law prohibiting the sale (but not the possession) of violent video games to children under the age of 18. Like this statute, the California law allowed parents (or aunts and uncles) to purchase and provide the games to children. Yet, the Supreme Court found this prohibition on the sale of games implicated children’s First Amendment rights and proceeded to strike down the regulation under a strict scrutiny analysis.
Brown and Weekley’s injury, therefore, is not solved by the ability to receive a gift of a handgun from a parent or guardian. See Fraser v. ATF, 2023 WL 3355339 (E.D. Va. 2023) (holding 18- to-20-year-olds have standing to challenge the age-based handgun ban and the statutory age prohibition violates the Second Amendment); see also Nat. Rifle Ass’n of Am., Inc. v. ATF, 700 F.3d 185, 191-92 (5th Cir. 2012) (“by prohibiting FFLs from selling guns to 18-to-20 year-olds, the laws cause those persons a concrete particularized injury-i.e., the injury of not being able to purchase handguns from FFLs.”).
The Government’s suggestion erroneously draws too large a distinction between the right to possess and the right to purchase a firearm. Although the Second Amendment does not expressly protect the right to “purchase” firearms, that right must exist by implication if the right to “keep and bear arms” is to have its full meaning and effect. “Commonsense and logic tell us that, unless one is a maker of guns, the right to ‘keep’/have a gun necessarily means that one must purchase it, steal it, be given it by another, or find one that another has lost.”
If under-21s have the right to possess a gun they also need to have a way to acquire one, and shutting them out from the normal chain of commerce flies in the face of the historical tradition of the right to keep and bear arms. Kleeh also pointed to the Fourth Circuit’s recent decision in Maryland Shall Issue, Inc. v. Moore that struck down Maryland’s Handgun Qualification License, both for its own recognition that “If you do not already own a handgun, then the only way to ‘keep’ or ‘bear’ one is to get one, either through sale, rental, or gift,” and its conclusion that forcing would-be gun owners to abide by a 30 day waiting period violates their Second Amendment rights. If that month-long wait is a violation of someone’s Second Amendment right, then the three year delay for young adults to be able to lawfully purchase a handgun is an even more egregious infringement.
So the plaintiffs have standing to sue, and their Second Amendment rights are clearly implicated. The only thing that could have saved the federal statute at that point would have been the DOJ pointing to longstanding regulations in effect around the time the Second Amendment or Fourteenth Amendments were ratified that could serve as a plausible analogue to the modern prohibition on young adults being able to purchase a handgun. As you might have already guessed, the DOJ struck out in that regard.
First, the DOJ attorneys argued that the age of majority has historically been 21 and not 18; an argument Kleeh rejected out of hand. To buttress their argument, DOJ Defendants spent time “collecting state laws proscribing age barriers to the possession and purchase of firearms between the years of 1856 and 1993.”
However, “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 544 U.S. at 634-35; see also Bruen, 142 S. Ct. at 2137 (“the scope of the protection applicable to the Federal Government . . . is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.”). Defendants’ reliance on mostly 19th century gun safety regulations as their justification in regulating the 18-to-20-year-old age group is misplaced under Heller and Bruen.
Ultimately, Kleeh determined that those mostly 19th century regulations weren’t a close enough fit in time or adopted widely enough to be considered longstanding national traditions surrounding the right to keep and bear arms, and granted summary judgment in favor of the plaintiffs.
Kleeh’s order enjoins the DOJ from enforcing 18 U.S.C. §§ 922(b)(1) and (c)(1) against the individual plaintiffs and “otherwise-qualified 18-to-20-year-olds,” so for the time being at least, it looks like adults under the age of 21 may actually be able to purchase a handgun at retail, though it will be interesting to see if they’re still rejected by the National Instant Check System because of their age.
Kleeh’s decision also adds to a number of other opinions around the country where courts have concluded that young adults still possess their full Second Amendment rights, including the Fraser case in my neck of the woods. Even if the Fourth Circuit quickly grants a stay of Kleeh’s ruling (which is not a foregone conclusion, mind you), the barriers erected to prevent young adults from accessing and exercising those rights are crumbling across the country, and I like our chances when one of these cases finally reaches the Supreme Court.