Two weeks ago an en banc pane of the Eleventh Circuit Court of Appeals upheld Florida's law banning gun sales to adults under the age of 21, setting up a potential appeal by the National Rifle Association to the Supreme Court. The lawsuit could be mooted, however, if the Florida Senate approves a bill repealing that prohibition that's already passed the state House.
If not, and the NRA continues to litigate the issue, Florida's Attorney General could find himself in a delicate situation. Does he defend a law that he believes is unconstitutional? Is he obligated to do so, despite his own legal opinion about the validity of the statute?
In Florida, statutes say that the attorney general shall “appear in and attend to, in behalf of the state, all suits or prosecutions,” but do not say the attorney general must defend all state laws.
Neal Devins, a professor of law at The College of William & Mary, co-authored a Yale Law Journal report in 2015 about how different states have handled the duty to defend the law.
Devins said he didn’t believe that Florida’s statute requires Uthemier to defend the law.
In fact, Florida’s court nearly a century ago issued a ruling saying that if the attorney general thinks a statute is unconstitutional, it is their duty to challenge it to settle the question of whether it’s valid or not, according to a 2018 study from the National Association of Attorneys General.
Uthmeier’s office did not respond to multiple requests for comment on his justification for not defending the law. On social media, he said he believed the law was unconstitutional.
“Men and women old enough to fight and die for our country should be able to purchase firearms to defend themselves and their families,” Uthmeier said on X.
The Florida attorney general’s own website, though, says that the attorney general “defends the constitutionality of statutes duly enacted by the Legislature.”
House Democratic Leader Fentrice Driskell said Uthmeier’s “job is to defend Florida law,” and said if he didn’t defend the current gun restriction, it would be an “abdication of his duties.”
Democrats in the Sunshine State are going to make this as much of an issue as they can, given that Gov. Ron DeSantis suspended two Democratic prosecutors for their "incompetence" and "neglect of duty" for their stated refusa to prosecute some violations of Florida law. The Republican-controlled Senate could make Uthmeier's life easier by approving HB 759 and sending the repeal to DeSantis for his signature, but Senate President Ben Albritton has been non-committal about whether the chamber will take up the measure before the legislature adjourns in early May.
Uthmeier wouldn't be the first AG to decline to defend a particular gun control law. California Attorney General Rob Bonta actually declined to defend a law adopted by the legislature a few years ago that he believed was unconstitutional, leaving it up to Gov. Gavin Newsom's office to take the lead in arguing the statute should be kept in place. In this case, however, DeSantis is on the same page as Uthmeier, and it's unclear what would happen if the AG ends up siding with the plaintiffs seeking to restore the rights of young adults to purchase rifles and shotguns for lawful purposes.
In the infamous Miller case, the neither the defendant nor his attorneys showed up to argue in his defense before the Supreme Court, so if NRA v. Uthmeier actually gets to the High Court, we could see a similar situation play out. But the Florida Attorney General still has some time before he has to make an official decision whether to defend the law or not. The NRA has not yet presented a cert petition to the Supreme Court, and if/when it does Uthmeier will have 30 days to respond to it. Given the May 5th deadline for the legislature to act on HB 759, the AG will likely be able to wait and see if the statute is repealed by lawmakers before replying to any cert petition. If Albritton hits the brakes on the repeal of the under-21 gun ban, however, Uthmeier may have to make a decision... and one that could have a big impact from both a legal and political standpoint.
