Supreme Court Must Solve Split Menacing Second Amendment Rights

The Supreme Court and the Trump administration can—and should—step in to ensure every 18-to-20-year-old’s Second Amendment rights are protected from state laws and misguided judges.

It was unfortunate to see the US Court of Appeals for the Eleventh Circuit err in what should have been a straightforward originalist analysis under N.Y. State Rifle & Pistol Ass’n v. Bruen. But that’s exactly what happened in NRA v. Bondi.

The Bondi case involves a challenge to a Florida gun-control law that raises the minimum age to purchase a firearm from 18 to 21. The NRA sued Florida over the age requirement, arguing it violates the Second Amendment rights of young adults to keep and bear arms.

The district court upheld the law, as did an Eleventh Circuit panel. The NRA then petitioned for a rehearing en banc, and the entire Eleventh Circuit affirmed in an 8-4 ruling.

Chief Judge William Pryor, writing for the majority, ultimately failed to conduct a proper originalist analysis under the framework established in Bruen.

Bruen requires courts to determine whether a challenged firearm regulation is “consistent with this Nation’s historical tradition of firearms regulation.” The burden is on the government to point to actual historical restrictions and demonstrate they are “relevantly similar” to the modern law, meaning that they burdened the right in an analogous way and for analogous reasons as the modern law.

Those firearms regulations that were permitted in the founding era to burden the right to keep and bear arms guide courts today in determining whether a modern firearms regulation is constitutional.

In Bondi, neither the government nor the Eleventh Circuit identified any founding-era laws that restricted 18-to-20-year-olds from purchasing or using firearms based on their age. There were no such laws in 1791 when the Second Amendment was ratified, and the federal Militia Act of 1792, passed months later, required able-bodied men between the ages of 18 and 45 to acquire their own private firearms and use them to serve in the militia.

Nevertheless, the en banc court held there was an effective limitation on 18-to-20-year-olds acquiring firearms because they were, then, considered “minors” for many purposes, and the common law of the founding era generally restricted minors from entering into binding contracts for unnecessary items.

If 18-to-20-year-olds can’t contract to purchase most goods, they couldn’t acquire firearms, the Eleventh Circuit concluded. Therefore, modern restrictions that ban the acquisition of firearms are sufficiently analogous to restrictions existing at the founding.

This is bad originalism for two reasons.

First, it misapplies the principle that the majority thought it identified in founding-era law—that minors could be disarmed—by using it to justify disarming adults today.

Applying such a principle to the present day wouldn’t justify restricting 18-to-20-year-olds from purchasing firearms. Rather, it would recognize them as having full Second Amendment protections because Florida (and the country) treats 18 as the age of adulthood today. So too does the Constitution’s 26th Amendment governing voting age restrictions.

Instead of recognizing that the Second Amendment applies fully to all adults regardless of age, the Eleventh Circuit continues to treat 18-to-20-year-olds in Florida as children when it comes to gun rights.

Second, the panel was wrong on history. Its singular focus on generic limitations on a minor’s ability to contract blinded it to the fact that federal law at the time required 18-year-olds to acquire their own private firearms. So it was a necessity for young male adults during the founding to buy or otherwise procure their own firearms and ammunition.

Other courts have concluded correctly that founding-era evidence weighs against such age-based firearm restrictions. In Reese v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the Fifth Circuit in January held that a federal law prohibiting the sale of handguns to 18-to-20-year-olds by federal firearms licensees was unconstitutional.

The Eleventh Circuit’s decision in Bondi highlights the importance of getting the US Supreme Court to weigh in on this issue as the circuit courts are now clearly split. To make review almost a sure thing, the Department of Justice should file certiorari in Reese, taking a page out of the Obama administration’s playbook as it concerned the Defense of Marriage Act in United States v. Windsor.

The DOJ, to get a national answer in Reese, should invite the Supreme Courtt to affirm the well-reasoned Fifth Circuit decision—in other words, switch sides in the case and join the plaintiffs in fighting for Second Amendment rights.

The Supreme Court did deny cert by Minnesota in Worth v. Jacobson, which arose from a decision finding that 18-to-20-year-olds had a Second Amendment right to carry handguns outside the home. But unlike with the firearm purchase rights of 18-to-20-year-olds addressed in cases such as Reese and Bondi, there isn’t a circuit split about whether young adults have the right to carry.

The Trump administration is working to protect fundamental Second Amendment rights. President Donald Trump’s executive order creating the DOJ’s Second Amendment task force has begun rolling back Biden-era firearm regulations and ramping up a process for restoring Second Amendment rights.

As part of these efforts, DOJ should join the plaintiffs in Reese to protect the Second Amendment rights of 18-to-20-year-olds.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Mark W. Smith is a constitutional attorney and a distinguished scholar and senior fellow of law and public policy at the Ave Maria School of Law.

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