Florida Gov. Ron DeSantis says he agrees with the state's attorney general about the unconstitutional nature of a law adopted after the Parkland shootings that prohibits the sale of firearms to adults under the age of 21, and believes that A.G. James Uthmeier is making the right move by vowing not to defend the law if the Supreme Court accepts the case.
According to Florida Politics reporter A.G. Gancarski, at an recent appearance in Tampa, DeSantis argued, "You've got people that are 18 years old that will be sent halfway around the world to carry a rifle in the Marine Corps, then they finish that, and they’re 20, and they can’t buy a rifle to go hunt. I think that’s a big problem.”
The NRA filed suit against the statute shortly after it took effect, but earlier this year the Eleventh Circuit Court of Appeals upheld the law in a bizarre ruling that equated young adults with minors, who the court said were subject to all kinds of gun-related restrictions at both the time the Second Amendment was adopted in 1791 and when the Fourteenth Amendment was ratified in 1868. This week the NRA officially appealed that decision to the Supreme Court, and now the state has several weeks to issue its response.
Gancarski claims that Uthmeier's decision not to defend the under-21 gun sale ban means the "National Rifle Association may get a free win in the Supreme Court", but as much as I'd like for that to be the case, the Court can always look beyond the attorney general's office to find someone to defend the law in question.
The Supreme Court has routinely appointed an attorney to defend a statute when both the plaintiffs and the defendants agree that lower court opinions were wrongly decided, so if Uthmeier declines to defend the ban on gun sales to under-21s but there are at least four justices who want to hear the case and issue a ruling of their own, SCOTUS could always invite another attorney to advocate to keep the law on the books.
So who might get the nod?
A 2016 law review article asserts that those invites have almost always gone to former Supreme Court law clerks, and as it happens, the head of Everytown for Gun Safety's litigation wing is a former clerk of the late Sandra Day O'Connor. Janet Carter is also licensed to practice at the Supreme Court, so there'd be no impediment to the Court inviting an ardent gun control activist to defend Florida's ban on gun sales to young adults if Uthmeier does decline to do it himself.
I'm sure Carter would jump at the chance to fight for Florida's age-based ban if given the opportunity, given that she's previously claimed that decisions striking down similar bans "puts lives at risk". In fact, Carter authored Everytown's amicus brief to the Eleventh Circuit arguing in favor of upholding the law, so she's already well acquainted with the issues at hand.
That brief largely focused on pushing the Eleventh Circuit to primarily rely on gun laws that were enacted around the time the Fourteenth Amendment was adopted, relegating the lack of statutes barring young adults from keeping and bearing arms around the time the Second Amendment was ratified to a minor footnote in history.
The Eleventh Circuit appears to have adopted at least some of Carter's argument, which rested on the notion that a number of states prohibited gun ownership "to 18-to-20-year-olds by the close of the nineteenth century". The biggest flaw in Carter's argument (and the Eleventh Circuit's decision) is that while a 20-year-old may have been considered a minor in 1868, today they're unquestionably an adult.
If the Supreme Court were to appoint an anti-gun litigator like Carter to defend Florida's law, that doesn't mean they'd have a winning argument. Other appellate courts, including the Third and Eighth Circuits, have concluded that bans on adults under the age of 21 purchasing, possessing, and carrying firearms do, in fact, violate the Second Amendment because those individuals and that class of persons are a part of the political community.
As much as I'd like to see Uthmeier decide he will defend the law but choose to intentionally turn in a terrible performance, that would run afoul of all kinds of legal ethics, and it's not a realistic option. But if SCOTUS decides to accept this case they'll likely appoint someone to defend the Florida law in question, and there's a fairly good chance it will be the head of Everytown Law's Senior Director of Issues and Appeals who'll be squaring off against the NRA during oral arguments over Florida's ban on gun sales to adults under the age of 21.
