There are certain things in life with a minimum age limit like driving, drinking alcohol, and even voting, but is there a minimum age limit for your constitutionally protected rights? That was the question Caleb Reese and others wanted asked, when they filed a lawsuit against the Bureau of Alcohol, Tobacco, Firearms, and Explosives regarding 18 USC §§922(b)(1) and (c)(1), which prohibit the selling of handguns to 18-20 year old adults.
Background
Caleb Reese, the Firearms Policy Coalition, the Second Amendment Foundation, Louisiana Shooting Association, and Emily Naquin sued the Bureau of Alcohol, Tobacco, Firearms, and Explosives, their director Steven Dettelbach, and acting U.S. Attorney General James R. McHenry III, claiming that federal law and regulations violate their rights protected by the Second Amendment.
Appellants filed suit in the district court against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), its Director, and the Attorney General of the United States, challenging the constitutionality of 18 U.S.C. §§ 922(b)(1) and (c)(1), and their attendant regulations, including 27 C.F.R. §§ 478.99(b), 478.124(a), and 478.96(b). These provisions, in effect, prohibit Federal Firearms Licensees (“FFLs”) from selling or delivering handguns to adults under the age of twenty-one. … Appellants contend that the federal laws unconstitutionally infringe on their right to keep and bear arms under the Second Amendment and deny them equal protection under the Due Process Clause of the Fifth Amendment. Reese v. BATFE
The Fifth Amendment doesn’t have an “Equal Protection Clause,” and I don’t see how the Due Process Clause establishes one. The case continues with the actions of Congress.
Congress enacted the Omnibus Crime Control and Safe Streets Act(“Act”) in 1968, and, inter alia, prohibited FFLs from selling certain firearms to certain purchasers based on the purchaser’s age. … The first challenged provision states:It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver [] any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age[.]18 U.S.C. § 922(b)(1). Reese v. BATFE
The Omnibus Crime Control and Safe Streets Act established two sets of restrictions based on age. First, it prohibits licensed dealers from selling firearms to anyone under the age of 18. Second, it prohibits the sale of any firearm other than a shotgun or rifle to anyone under that age of 21. The law goes on to state:
Additionally, § 922(c)(1) prohibits FFLs from selling such a firearm to “a person who does not appear in person at the licensee’s business premises,” absent a sworn statement that they are “twenty-one years or more of age[.]” 18 U.S.C. § 922(c)(1). Reese v. BATFE
So if you purchase a firearm from a licensed dealer, you’re supposed to provide a sworn statement that you are at least 21 years of age.
Based on this law, the ATF promulgated regulations.
ATF implemented regulations prohibiting the sale of firearms “other than a shotgun or rifle” to adults under twenty-one. 27 C.F.R. § 478.99(b), for instance, states in part:A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver . . . [any] firearm, or ammunition, . . . other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the importer, manufacturer, dealer, or collector knows or has reasonable cause to believe is less than 21 years of age[.] Reese v. BATFE
Between the law and regulation, adults under the age of 21 were denied their right to purchase a handgun.
As a result, eighteen-to-twenty-year-olds “may not purchase handguns from FFLs.” … 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. Reese v. BATFE
That’s an interesting loophole. Someone between the ages of 18 and 21 can own a handgun, but cannot buy one except on the private market. Since it is a federal crime to purchase a firearm for someone else (known as a straw purchase), that leaves people who can legally own a firearm in quite a conundrum. How can you own a firearm unless you purchase it, and since you can’t purchase one from a licensed dealer, you’re forced to do so from an unlicensed one, which I doubt was ATF’s plan when they proposed this rule.
Appellants allege that this “handgun ban” is inconsistent with our Nation’s history of firearm regulation and thus unconstitutionally infringes on their Second Amendment right to keep and bear arms. Reese v. BATFE
Telling someone that they can own a firearm, just not purchase one, seems to infringe on a person’s right to keep and bear arms.
Purchasing Firearms
Let’s look at the argument about purchasing firearms. The government makes two main points in their argument.
Addressing the first question under Bruen, the government contends that “the Second Amendment’s plain text” does not cover the conduct that §§ 922(b)(1) and (c)(1) prohibit. … The government argues that a limited ban on the purchase of handguns from FFLs is not an infringement on the Second Amendment rights, and in any event eighteen-to-twenty-year-olds are not among “the people” protected by the right. Reese v. BATFE
The belief that a ban, no matter how limited, does not infringe on the right to keep and bear arms defies logic. I guess to a government that believes they have the right to censor free speech and press, infringement means something different. The idea that an 18 year old could not only own a gun, but use one to fight for our country is not part of “the people” is as obscene as saying someone is not part of the people because of the color of their skin, where they were born, or any other arbitrary attribute.
We reject these points, then move to Bruen’s second inquiry: whether the government met its burden to demonstrate historical analogues supporting the challenged regulations. Reese v. BATFE
The Fifth Circuit rejects the government’s arguments about the Second Amendment, then moves on to the “historical analogues” that the Supreme Court used as precedent in the Bruen case.
Contrary to the district court’s assumption, the government denies that the plain text of the Second Amendment “establish[es] a right” to purchase firearms “at any time from any source.” Reese v. BATFE
Contrary to the government’s position, they don’t get to determine when, where, or under what circumstances someone can exercise a right protected by the Constitution. In other words, when the plain text of the Second Amendment protects a right to keep arms, which includes purchasing them. The government has to provide an extremely good reason to violate the due process rights of the American people, regardless of their age.
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual. Due Process: The Free Legal Dictionary
The government keeps digging deeper.
It emphasizes that § 922(b)(1) only limits the sale of handguns by a “particular type of seller” (FFLs) to a “particular class of buyers (under-21-year-olds).” Of course, the words “purchase,” “sale,” or similar terms describing a transaction do not appear in the Second Amendment. But the right to “keep and bear arms” surely implies the right to purchase them. Reese v. BATFE
Again, the right to own logically includes the right to purchase. Which means the question isn’t whether or not there is a historical analog for these age restrictions.
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. Reese v. BATFE
And according to the plain text of the Second Amendment, yes, the Second Amendment covers the purchasing of firearms.
The People
The next part of the government’s argument is that 18-20 year olds are not part of “the people” under the Second Amendment.
The government next asserts that eighteen-to-twenty-year-olds are not “part of ‘the people’ whom the Second Amendment protects.” … This argument is based largely on the common law’s recognition of 21 years as the date of legal maturity at the time of the founding, and the fact that legislatures have long established minimum age requirements for various activities. Reese v. BATFE
Since when has personhood been age dependent? While in ages past, 21 years may have been the age of legal maturity, what does that have to do with a natural right protected by the Constitution?
The operative clause of the Second Amendment states that “the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II (emphasis added). There are no age or maturity restrictions in the plain text of the Amendment, as there are in other constitutional provisions. … This suggests that the Second Amendment lacks a minimum age requirement., Reese v. BATFE
So the Second Amendment doesn’t have a minimum age requirement, what about this not a person nonsense?
Moreover, in the unamended Constitution and Bill of Rights, the phrase “right of the people” appears in the First Amendment’s Assembly-and-Petition Clause, the Fourth Amendment’s Search-and-Seizure Clause, and the Ninth Amendment. … All of these references confer “individual rights” and undoubtedly protect eighteen-to-twenty-year-olds as much as twenty-one-year-olds. Reese v. BATFE
As I’ve always said, any right of the people is an individual right, and unless restricted by the Constitution, age doesn’t matter.
Still, the government emphasizes that the right to vote “from the founding to the Twenty-Sixth Amendment” was typically reserved for citizens over twenty-one. Thus, because voting is a “hallmark of membership in the polity,” eighteen-to-twenty-year-olds were originally, and now remain, excluded from the “political community” described in Heller. Reese v. BATFE
Is it just me, or is the government simply ignoring the fact that it wasn’t the Constitution or the federal government who put age restrictions on voting before the Twenty Sixth Amendment? They also seem to have forgotten Section 2 of the Fourteenth Amendment. The court noted the issues with this position.
This argument is incompatible with Second Amendment precedent, nonsensical when considered against the backdrop of American suffrage, and contradicted by the history of firearm use at the founding. Reese v. BATFE
So far, I’m with the Fifth Circuit, but is that the only argument against the not a part of the people nonsense?
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. Reese v. BATFE
Sounding better at the Fifth Circuit. With these two strikes against the rules, can the courts find a third?
Finally, the history of firearm use, particularly in connection with militia service, contradicts the premise that eighteen-to-twenty-year-olds are not covered by the plain text of the Second Amendment. Reese v. BATFE
That seems to make sense, especially since our sixth President, John Quincy Adams, drilled with the Massachusetts Militia, I believe, at the age of 8.
The Second Amendment’s prefatory clause states that “[a] well regulated Militia, being necessary to the security of a free State . . . .” U.S. Const. amend. II. While Heller recognized that the “central component” of the right to keep and bear arms is self-defense, the “prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.” … The Framers knew all too well the dangers a disarmed and defenseless public could face under monarchical control. Reese v. BATFE
Since the purpose of the Second Amendment is a question of self defense, why would an 18 year old be able to own a handgun but not purchase one?
The Second Congress consequently enacted the Militia Act of 1792, which stated, in part: That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein excepted) shall severally and respectively be enrolled in the militia Reese v. BATFE
If an 18 year old can be part of the militia, why not purchase the weapons that would be necessary to join?
Finally, the government argues that mere participation in the militia was not enough to establish Second Amendment protections because (1) black men served in the militia but were otherwise barred from possessing arms; and (2) Virginia, by law, disarmed men who refused to take a loyalty oath while still requiring them to enroll in the militia, albeit without firearms. The treatment of blacks is hardly probative as to eighteen-to-twenty-year-olds because race-based classifications would apply regardless of age. Reese v. BATFE
Are we supposed to enforce our laws based on the racist policies of the past? And how does a person’s race equate with their age when it comes to purchasing handguns?
Court Conclusion
So how did the Fifth Circuit decide this case?
Ultimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among “the people” whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th century evidence “cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” … In sum, 18 U.S.C. §§ 992(b)(1), (c)(1) and their attendant regulations are unconstitutional in light of our Nation’s historic tradition of firearm regulation.We REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion. Reese v. BATFE
A nice clear, concise answer, both the laws and their regulations are unconstitutional. Now the court sends this case back to the District Court to proceed based on the circuit’s opinion.
Conclusion
The Fifth Circuit has said the law and regulations are unconstitutional. What now? I’ve already pointed out that Caleb Reese and the rest have to go back to the District Court for them to proceed based on the Circuit Court case. If all goes well, the District Court will find accordingly.
Hopefully this decades long infringement on the right of the people, all people, to keep and bear arms will be ignored in court. I wonder, will the ATF rescind their regulations? Will Congress repeal the law? Personally, I won’t hold my breath.
I wonder, what other infringements on our rights can we find? Will we find a redress for our grievances in the courts? Again, I wouldn’t hold my breath. That said, I am happy for all of those 18-20 year olds in this country who can once again fully exercise their right to keep and bear arms without the threat of the ATF.
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