Litigation Highlight: Eleventh Circuit Upholds Florida’s Under-21 Purchase Ban
On March 9, the Eleventh Circuit issued a published decision in NRA v. Bondi holding that Florida’s law prohibiting those under the age of 21 from purchasing (but not possessing) firearms is consistent with the Second Amendment post-Bruen. The case deals with a Florida statute enacted in 2018, after the February 14, 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland. The law prohibits anyone under age 21 from purchasing a firearm and creates criminal penalties for both underage purchasers and those who sell to under-21-year-olds. In June 2021, Chief Judge Mark Walker of the Northern District of Florida granted the state’s motion for summary judgment, reasoning that because “the Eleventh Circuit has found restrictions with much less historical support longstanding, this Court must conclude that restrictions on the purchase of firearms by 18-to-20-year-olds are also longstanding.” The NRA appealed, oral argument was held in March 2022, and the panel received supplemental briefing from the parties following Bruen.
The Eleventh Circuit panel first noted that gun violence has been a continuous problem in the U.S. from the Reconstruction Era through the present day, quoting newspaper stories from the 1870s and 1880s. The opinion then summarized the facts and the Bruen test—it broke Bruen into two steps, as most judges have done. Before engaging in the initial plain-text inquiry, the panel embraced the argument that—when a state law is challenged under the Second Amendment as incorporated through the Fourteenth Amendment—“historical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.” The opinion explained that, “when the States ratified the Fourteenth Amendment during the Reconstruction Era, they made the Second Amendment applicable to the States.” While noting that Bruen did not decide this specific issue, the panel wrote that “the understanding of the right to keep and bear arms in 1866 generally differed from the understanding of that right in 1789, [so] Bruen is likely an exception in its ability to assume away the differences” between those two time periods. In sum, the judges found that the content of the incorporated right is determined based on “the understanding that prevailed at the time of the later ratification—that is, when the Fourteenth Amendment was ratified.”
Next, the panel noted disagreement over whether 18-20-year-olds are actually protected by the Second Amendment, observing that “the drinking age and tobacco-use age in most states is 21.” However, because Florida did not argue for a step-one resolution, the panel assumed that the Second Amendment was implicated and proceeded to evaluate consistency with historical tradition. The opinion described a series of laws first enacted in 1855, and stretching throughout the Reconstruction Era, that restricted the purchase and possession of certain weapons by 18-20-year-olds, especially in Southern states. The panel noted that “those laws made it unlawful not only to sell those types of arms to 18-to-20-year-olds, but also to lend those arms to that age group, [and thus] imposed a greater burden on the right to keep and bear arms than” Florida’s regulation. The opinion also found that the historical laws were similarly justified on the basis that firearms could be dangerous to minors. And the judges found that public universities had restricted gun possession and use by students at even earlier points in history. The initial flurry of age-based restrictions in the South, the panel said, eventually spread across the country and 16 additional states and D.C. enacted laws between 1868 and 1900 that were “similar, if not identical, to their pre-ratification predecessors in Alabama, Tennessee, and Kentucky”—the decision includes an appendix listing these laws). Again, the opinion emphasized that Florida’s law allows 18-20-year-olds to obtain (other than through purchase) and possess firearms, while historical laws generally did not.
The judges also consulted historical newspapers to “confirm that the public did not understand the right to keep and bear arms to protect the rights of 18-to-20-year-olds to purchase such weapons,” and found widespread support for the Reconstruction-era age restrictions in the press. The Reconstruction-era laws were also were rarely challenged in court—according to the panel, because of their popularity and accepted constitutionality. Some were upheld, the panel noted, with a Tennessee decision from 1878 labeling the state’s age restriction “wise and salutary in all its provisions.”
The judges finally rejected the NRA’s argument that militia service obligations demonstrated that 18-20-year-olds had the right to buy firearms:
Congress imposed upon 18-to-20-year-olds a specific obligation to serve in the militia but did not give them all the rights associated with full citizenship (like, at that time, the right to vote). So we can’t infer from the fact that 18-to-20-year-olds had a specific obligation that they had a specific right.
The panel held that Florida’s law does not violate the Second Amendment “[b]ecause [it] is at least as modest as the firearm prohibitions on 18-to-20-year-olds in the Reconstruction Era and enacted for the same reason as those laws.”
The decision in Bondi implicates many of the same issues as Firearms Policy Coalition, Inc. v. McGraw, in which a district judge struck down the Texas law prohibiting those under the age of 21 from carrying handguns in public (we covered that decision here and here). Texas initially appealed that decision to the Fifth Circuit, but then withdrew its appeal on December 20, 2022. The Florida law is different from Texas’ prior prohibition in potentially important ways: Florida allows possession and public carry, but bans purchases—Texas allowed purchases but banned public carry; Texas restricted only handguns, while Florida’s law covers a broader set of firearms. It’s not immediately clear to me which law is a more expansive prohibition. Solely from a self-defense perspective, Florida’s law is likely more tailored because it allows under-21-year-olds to carry weapons if obtained by gift or transfer. But Florida completely bans purchases, which were allowed in Texas. In any event, there may still be a circuit split relatively soon on age-based restrictions—the Ninth Circuit previously struck down California’s restriction on rifle purchases by 18-20-year-olds in Jones v. Becerra, and that case is currently being relitigated at the district court level post-Bruen.
The Florida legislature is currently considering a proposal to drop the under-21 restriction and return the minimum purchase age to 18 (this would render the Eleventh Circuit’s decision in Bondi largely inconsequential, as Judge Charles Wilson noted in a one-paragraph concurrence). If anything, the repeal effort illustrates how much Bruen has altered the legislative landscape with regard to firearms. While states previously would have been forced to tackle the question of repealing age-based restrictions through the give-and-take of the political process—and it’s possible that Florida may still pursue that route, as Judge Wilson observed—it’s likely easier for state politicians who wish to repeal a law to simply wait, receive an adverse judicial ruling, and direct any resultant criticism toward the courts. This factor may have contributed to Texas’ decision to withdraw its appeal in McGraw. And it could be that state governments will decide not to continue defending gun laws based solely on their own assessment of Bruen, even before an adverse decision is issued. In Beeler v. Long, a case challenging Tennessee’s decision to limit concealed carry of handguns to those age 21 and older, the state recently settled pre-decision and agreed to a proposed order that would enjoin the state “from implementing or enforcing [its licensing regulations] to prevent individuals aged 18 years old to 20 years old from carrying handguns or obtaining permits to carry handguns on the basis of age alone.”
The most notable aspect of the decision in Bondi is the panel’s holding that—when a state law is challenged under the incorporated Second Amendment—the scope of the right is determined by reference to historical tradition at the time the incorporation occurred (1868), rather than at the time the incorporated language itself was ratified (1791). The impact of this doctrinal maneuver is that the precise contours of the Second Amendment, and other amendments in the Bill of Rights, would often be different for challenges to state, versus federal, regulations. Bruen expressly declined to decide the issue, asserting that “the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.” Bruen left the issue undecided even though it was almost certain to resurface very quickly. After all, 80 years is a long time for the public understanding of a right to remain unchanged; and the Eleventh Circuit panel correctly concluded that “Bruen is likely an exception in its ability to assume away the differences.”
There is some logical force to the Eleventh Circuit’s position. For one, as Kurt Lash has observed, “[t]he original meaning of the Bill of Rights had to be reshaped before these 1791 provisions could be applied against the States” because the original Bill of Rights was intended solely as a limit on the federal government, not state governments. The opinion in Bondi also notes that “it makes no sense to suggest that the States would have bound themselves to an understanding of the Bill of Rights—including that of the Second Amendment—that they did not share when they ratified the Fourteenth Amendment.” But with that said, the Supreme Court itself has strongly suggested that it prefers a theory under which the amendments in the Bill of Rights have identical meanings against the federal government as against state governments. Bruen noted that the Court has “generally assumed that the scope of protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” And, as scholars have explained, the Supreme Court has frequently suggested that the meaning of other incorporated amendments in the Bill of Rights was fixed at 1791 and should be determined by reference to that time period. As early as 1964, the Court “rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” In its 2020 decision in Ramos v. Louisiana, the Court again affirmed “that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government.” The Eleventh Circuit doesn't ignore these precedents, but rather draws a distinction between the scope and the contours of the right—and says that the contours must be determined as of the later ratification date.
To me at least, this may be too fine a distinction to draw. The writing seems to be on the wall that the Eleventh Circuit’s approach of construing the incorporated Second Amendment right primarily by reference to public understanding close in time to 1868 will not ultimately be endorsed by the Supreme Court. That said, it’s important to consider whether anything in Bruen itself might change the calculus on that question. When weighing the value of English history, the Bruen majority observed that:
[T]his Court has long cautioned that the English common law “is not to be taken in all respects to be that of America.” Thus, “[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted,” not as they existed in the Middle Ages.
If that’s the rule that applies to English history, the corollary would seem to be that Founding-era history should be relevant to state-law challenges only to the extent that the public understanding of the relevant aspect(s) of the right to keep and bear arms was unchanged when the Fourteenth Amendment was ratified in 1868—as Bruen suggests it was with regard to public carry.
Akhil Reed Amar, for example, argues that “in the very process of being absorbed into the Fourteenth Amendment, various rights and freedoms of the original Bill may be subtly but importantly transformed in much the same way the Bill of Rights transformed language it had absorbed from still earlier sources.” It seems to me that the approach to pre-1789 British history should mirror the approach to pre-1868 American history for incorporated-right challenges, absent a compelling distinction. Just as “English common law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution,” per Bruen, practices and understandings of the Founding Era probably shouldn’t be indiscriminately attributed to those who remade the nation in the aftermath of the Civil War—absent a clear indication those Reconstruction-era politicians (or the American public at the time) intended to adopt the Founding-era understanding wholesale.
 This wouldn’t necessarily mean that Reconstruction-era history is irrelevant (after all, Bruen itself spends many pages analyzing laws from the late 1800s) or that the panel’s analysis in Bondi is incorrect, but it would likely require a closer examination of the Founding-era history regarding age restrictions.