Second Amendment Roundup: 5th Circuit nixes ban on gun sales to 18 to 20 age group.
On January 30, the Fifth Circuit decided Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, holding that the federal Gun Control Act’s prohibition on the sale of firearms to persons under 21 years old, as applied to adults aged 18 to 20 years old, violates the Second Amendment. The law effectively banned handgun sales, as it has an exception for rifles and shotguns, which may be sold to persons 18 and older.
The opinion was authored by Judge Edith H. Jones and was joined by Chief Judge Elrod and Judge Barksdale. The provisions at issue are 18 U.S.C. § 922(b)(1), which governs in-person sales from a federally-licensed firearm dealer (FFL), and § 922(c)(1), a little-used provision which applies to sales in which the buyer does not appear at the FFL’s premises in-person. Ironically, the court notes, “The Act and regulations do nothing to prohibit eighteen-to-twenty-year-olds from owning, possessing, or carrying handguns, nor does it prohibit them from buying handguns in the unlicensed, private market or receiving handguns as gifts.”
While the words “purchase” and “sale” do not appear in the Second Amendment, the court noted that the right to “keep and bear arms” “surely implies the right to purchase them.” Applying the first step of the analysis as directed by the Supreme Court in Bruen and Rahimi, the court stated: “The threshold textual question is not whether the laws and regulations impose reasonable or historically grounded limitations, but whether the Second Amendment ‘covers’ the conduct (commercial purchases) to begin with.” Like the First and Fourth Amendments, the Second Amendment refers to “the people” without mention of age or maturity restrictions.
The court rejected the government’s further textual argument that eighteen-to-twenty-year-olds lacked certain “civic rights” at the founding, such as jury service and suffrage, and thus were not part of “the people” protected by the Amendment. Women, not to mention African Americans, did not have such civic rights either. As the court continued:
Thus, to say that “the people” covered by the Second Amendment is limited to those who were a part of the “political community” at the founding would imply excluding “law-abiding, adult citizens” based on property ownership, race, or gender…. Just as defining “arms” as “only those arms in existence in the 18th century” “border[s] on the frivolous,” likewise, attempting to limit “the people” to individuals who were part of the “political community” at ratification is ludicrous.
The reference to arms not being limited to those from the 18th century comes from the Supreme Court’s decision in Heller holding that modern firearms are protected by the Amendment. As an aside, circuits covering states with prohibitions on modern firearms such as the AR-15 disregard what Heller said in upholding the bans. It’s unlikely that the Fifth Circuit will have occasion to consider and weigh in on such bans because the states it covers are unlikely to enact them. That’s why there is no circuit conflict on the issue and also why the Supreme Court should grant cert in Snope  an
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