Litigation Highlight: Virginia Judge Strikes Down Provisions of Federal Law that Prohibit Federally Licensed Dealers from Selling Handguns to Those Under Age 21
On May 10, Judge Robert Payne of the Eastern District of Virginia issued a decision in Fraser v. ATF invalidating the statutory framework that prohibits federally licensed firearm dealers (or FFLs) from selling handguns to individuals under the age of 21. Federal law makes it unlawful for an FFL to sell or deliver a handgun, or handgun ammunition, to anyone under 21. The plaintiffs in Fraser, individuals between age 18 and 20 who have attempted or desire to purchase handguns from FFLs, challenged these laws and regulations under the Second Amendment. The opinion addressed both ATF’s motion to dismiss the complaint and the plaintiffs’ motion for summary judgment on their Second Amendment claims.
The court considered and rejected arguments by ATF that the plaintiffs lacked standing because they could still obtain handguns from their parents or through a private sale. Rather, Judge Payne found “the challenged statutes and regulations present more than a de minimis intrusion on the right to ‘keep and bear arms.’” After summarizing the relevant legal framework, the court first held that the “ordinary, commonsense, and logical meaning” of the text of the Second Amendment “includes the right . . . to purchase arms.” In the judge’s view, the right to purchase is not only a logical corollary of the right to keep and bear, but the Second Amendment’s use of the word “infringe” also suggests that “the Second Amendment’s protective textual embrace includes the conduct necessary to exercise the right.”
Next, the judge considered whether 18-to-20-year-olds fall within the scope of “the people” protected by the Second Amendment. Starting from Heller’s reference to “all members of the political community,” Judge Payne surveyed existing case law and decided to follow decisions that do “not  restrict the analysis of the term ‘the people’ to the Founding-era.” Noting that “[t]hroughout our Nation’s history, the definition of ‘the people’ has evolved and changed—for the better,” the court concluded that adopting a Founding-era definition would be improper. Judge Payne also found that the lack of any historical analysis of who is contained within “the people” in Heller and Bruen suggested that a modern-day definition was appropriate. Importantly, the decision rejects the use of the common law legal age of majority (21), in part because a lower age threshold for militia membership “cuts against a finding that the age of majority was what the Founders had in mind as a limitation on the reach of the Second Amendment.” In a short appendix, the court further addressed the common law age of majority and observed that “there is uncertainty about the definition of ‘the people’ at the time of the Founding” for various citizenship-related purposes, notwithstanding that the general age of majority at the time was 21.
Through a modern lens, the judge observed that “many of the rights and responsibilities of citizenship fall upon the shoulders of 18-year-olds,” noted that other amendments “apply to all Americans regardless of age,” and concluded that 18-to-20-year-olds are squarely within the “political community.” Although some privileges, like the ability to drink alcohol, are delayed beyond age 18, Judge Payne observed that “[t]here is no similar constitutional right to consume alcohol.”
To evaluate whether the federal prohibition on under-21 handgun purchases from FFLs is consistent with the country’s tradition of gun regulation, the judge considered two potential historical analogues in the record: militia laws and state age restrictions. While observing that it is important “not to confuse the legal obligation to perform militia service with the right to bear arms,” Judge Payne found that Founding-era laws setting the age for militia service at 16 or 18 were “important circumstantial evidence” that those within that age group possessed a right to keep, bear, and purchase arms. The judge found that the age of majority for militia service remained at 18 in almost all states throughout the Founding era and early republic, and that laws requiring parents to provide weapons merely recognized the financial burden on 18-to-20-year-olds of obtaining their own weapons (but did not rule out that possibility). Ultimately, Judge Payne held that “men were considered to have reached the age of majority [at 18] and society not only allowed but required them to begin to keep and bear firearms.”
As to age-based restrictions on the private purchase of firearms, the court found that ATF failed to offer “any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding, or Early Republic.” Rather, age-based purchase restrictions only appeared at the state level in the mid-1800s, just three states passed such laws before the Civil War, and many laws were passed during and after Reconstruction. Therefore, Judge Payne held, the “legislation tells us nothing about the Founders’ understanding of the Second Amendment.” The judge also rejected campus firearm restrictions as analogues because he found that these rules were targeted only to public carry and did not impact students’ private ability to purchase firearms. The decision concludes by weighing ATF’s argument that the federal laws at issue are mere “laws imposing conditions and qualifications on the commercial sale of arms” and thus presumptively lawful under Heller. The judge rejected this argument, relying in part on pre-Bruen case law, because he found that laws are only within the Heller safe harbor when they regulate “the conditions or qualifications of the seller to enter the market”—not when they directly limit the prospective purchaser’s ability to obtain a firearm. Therefore, the court held that ATF failed to meet its burden under Bruen and granted the plaintiffs’ motion for summary judgment.
The writing was, perhaps, on the wall here because the Fourth Circuit Court of Appeals—which will hear any appeal in Fraser—had already struck down the federal statutory provisions at issue in a 2021 panel decision in Hirschfield v. ATF (well before Bruen was decided). That opinion found that 18-to-20-year-olds are within “the people” protected by the Second Amendment and then determined that the federal purchase restriction was not sufficiently connected to the government’s interest in reducing gun violence. Rather, the panel held that the regulations failed intermediate scrutiny both because they were vastly over-inclusive and because “[h]andgun purchases from licensed dealers have not been connected to gun violence.” Judge James Wynn filed a lengthy dissent in the case, and the panel decision was vacated several months after it was issued in a short order finding that the claims had been mooted because the plaintiff turned 21.
Age restrictions are an area where the historical-analogical test places particular stress on the outstanding doctrinal questions noted in Justice Barrett’s Bruen concurrence:
the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution[; and] whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill of Rights was ratified in 1791.
In particular, it is not yet clear how the appearance of state-level age restrictions on firearms starting in the 1850s (these laws often prohibited 18-to-20-year-olds from buying or, in some cases, even from possessing, certain easily concealable weapons) factors into the legal analysis. In Bondi, the Eleventh Circuit relied heavily on these laws and found that, “[b]etween the Fourteenth Amendment’s ratification and the close of the nineteenth century, at least sixteen states and the District of Columbia joined Alabama, Kentucky, and Tennessee—a total of at least twenty jurisdictions—in banning sales of firearms to 18-to-20-year-olds” (we covered that decision here). Fraser discounts these same laws almost entirely due to their temporal distance from the Founding. One possibility is that these laws constitute a relevant tradition of states banning 18-to-20-year-olds from purchasing guns, but are not a relevant tradition as to the federal government.
While the Supreme Court has generally rejected the idea that the content of provisions in the Bill of Rights is different when those provisions are applied to state governments rather than the federal government, it’s not entirely clear how the current set of justices would divide on this question. In a 2020 dissent in Ramos v. Louisiana, Justice Alito observed that “[e]ven now, our cases do not hold that every provision of the Bill of Rights applies in the same way to the Federal Government and the States” and appeared to endorse the idea “that the Constitution allows the States a degree of flexibility in the interpretation of certain constitutional rights.” Justice Thomas, writing for the majority in a 2002 state sovereign immunity decision, emphasized the need “to accord States the dignity that is consistent with their status as sovereign entities”; he has also stressed the importance of protecting federalism in public remarks. I believe Fraser was likely correct to limit its inquiry to Founding-era history in this challenge to federal law, but that does not necessarily rule out the possibility that state governments have greater regulatory freedom: even if the scope and meaning of the Second Amendment remains the same in state-law challenges, the historical analysis might be more flexible in a way that reinforces principles of federalism.
A final observation about the decision in Fraser is that its use of a modern definition of “the people” seems ill-suited to the Bruen analysis, without further adjustment of the historical-tradition step. Judge Payne’s observation that our conception of “the people” has changed for the better since the Founding is certainly correct, but it also points to an odd disconnect in how the Second Amendment is interpreted in the case. It makes little sense to expand the definition of “the people” while myopically focusing on regulations passed by an electorate that excluded many individuals on the basis of race, gender, and so on. When these groups joined the voting public for the first time and brought with them their own preferences and beliefs, they certainly altered the existing regulatory status quo. If these groups are protected under the initial, textual step of Bruen, then their views should be reflected in the second step as well.
While we don’t know to any certainty which laws women or African-Americans in 1791 would have supported, the inquiry may not be as strange as it sounds. As Jake previously summarized, a dissent last year by Ohio Supreme Court Justice Jennifer Brunner forcefully argued that we “cannot simply . . . ignore” the question of “what the United States’ historical tradition of firearm regulation would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations.” And, in fact, scholars have explored how such views might be resurrected and included within originalist constitutional interpretation. James Fox argues for a “counterpublic” originalism that would utilize “a cross-temporal process whereby the dissenting counterpublic meanings gain validity and priority through subsequent inclusive ratifications.” In a recent article in the Columbia Law Review, Gregory Ablavsky and W. Tanner Allread attempt a similar project with regard to Native American understanding of constitutional provisions and argue that “we can, in fact, incorporate these voices into our constitutional histories.” Efforts to reconstruct the perspectives of other historically-excluded groups would be a further “testament to the ideals engrained in our Constitution by the Founders,” in Judge Payne’s words.