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Litigation Highlight: Third Circuit Strikes Down Pennsylvania Age Restriction on Public Carry during a State of Emergency

By: Andrew Willinger

On January 18, a panel of the Third Circuit Court of Appeals invalidated on Second Amendment grounds a set of Pennsylvania statutes that operated to bar 18-20-year-olds from carrying firearms in public during declared states of emergency.  The ruling in Lara v. Commissioner is one of a growing number of post-Bruen decisions addressing firearm restrictions on that specific age group.  Lara brings into sharp focus doctrinal and procedural questions surrounding these age-restriction cases, especially as the Supreme Court is poised to decide related questions of who may be restricted from possessing firearms in Rahimi.

Pennsylvania requires a license to carry a concealed firearm in public, regardless of age.  A concealed carry firearm license authorizes the license-holder to carry a gun during an “emergency proclaimed by a State or municipal governmental executive.”  Pennsylvania also generally allows the open carry of firearms, although open carry is not permitted during a state of emergency.  Because 21 is the age cutoff for a concealed carry license, Pennsylvania law thus effectively bars 18-20-year-olds from carrying guns in public in any fashion during a state of emergency.  According to Lara, Pennsylvania had been under a state of emergency for various reasons for a period of nearly three years when the plaintiffs first challenged this aspect of Pennsylvania law in October 2020—the COVID-related state of emergency appears to have lasted for at least two additional years, although it has now lapsed.  The district court granted the state’s motion to dismiss prior to Bruen.

After tracing the course of Second Amendment jurisprudence starting with Heller, the panel majority first held that 18-20-year-olds are within the textual scope of “the people” with Second Amendment rights.  The majority rejected the argument that this group is excluded because the Founding Era age of majority was 21; rather, the court said, it would be improper to focus solely on the Founding-Era conception or be “rigidly limited by eighteenth century conceptual boundaries” because this would entail limiting “the people” to only “white, landed men.”  The majority also embraced Justice Barrett’s view that “the people” should be construed broadly and noted that 18-20-year-olds enjoy other constitutional rights.  The panel majority next examined the relevant historical time period for examining the Pennsylvania law’s consistency with historical tradition.  Noting that Bruen had declined to answer that question, the court nevertheless observed “strong hint[s]” that the Founding Era is the relevant time, noted that the Court has looked to 1791 in the context of other constitutional rights, and found that Pennsylvania had failed to provide a compelling reason to treat the Second Amendment differently. 

This meant, to the panel majority, that it was required to “set aside the Commissioner’s catalogue of statutes from the mid-to-late nineteenth century, as each was enacted at least 50 years after the ratification of the Second Amendment.”  The majority found itself left only with a 1721 Pennsylvania law that prohibited carrying guns on private land.  That law, the majority said, was not analogous because it did not single out any age group.  Rather, the opinion favorably cited the Second Militia Act of 1792 as “good circumstantial evidence of the public understanding at the Second Amendment’s ratification as to whether 18-to-20-year-olds could be armed.”  In closing, the majority observed that the case was not moot because at least one plaintiff remained below the age of 21 and “Pennsylvania has a recent history of declaring multiple emergencies,” and also dismissed other procedural arguments urged by the state.

Judge Restrepo dissented and argued that the case should be resolved at “step 1” of the Bruen analysis.  He emphasized that, “[a]t the Founding, people under 21 lacked full legal personhood . . .  [and] had few independent rights.”  And he emphasized the history of firearms restrictions on college campuses (for more detail on how these rules have influenced post-Bruen litigation, see these two prior posts).  To Judge Restrepo, “[t]he totality of this evidence demonstrate[d] that the public during the Founding-era understood the plain text of the Second Amendment did not cover individuals under the age of 21.”  In the alternative, he would have held that “later evidence [that] offers greater proof and context” may be considered and would have relied upon the fact that, “[b]etween 1856 and 1893, at least 17 states passed laws restricting the sale of firearms to people under 21” to find the Pennsylvania regulation consistent with historical tradition.

First, as I’ve written previously, the date framing in Lara is somewhat perplexing.  The majority finds itself entirely precluded from engaging with a long list of state laws enacted in the mid-to-late 1800s because those laws were passed 50 years or more after the ratification of the Second Amendment.  But the majority is willing to consider a colonial law enacted in 1721, 70 years before the amendment was ratified.  What possible justification could there be for such an inconsistent approach?  And why should judges be precluded from relying on a consistent pattern of laws enacted in American states, yet permitted to consider laws enacted by British colonial governments long before the Founding?  Lara appears to be yet another illustration of temporal compression—or the idea that events in the distant past seem closer together in our minds, compared to more recent events, even when the actual number of years separating two events is similar.  Absent a consistent approach that cuts off historical evidence a set number of years before and after the ratification of the Second Amendment—thus avoiding the trap of temporal compression—a court should justify its choice to consider earlier-in-time evidence, but not later-in-time evidence, through a more probing examination of historical trends.

I also believe the majority’s failure to at least address Pennsylvania’s evidence of state regulation from 1856 to 1893 is a profound misapplication of Bruen itself.  Bruen says that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”  The panel majority, however, doesn’t seem to identify any contradiction here that should entirely preclude consideration of the later-in-time laws.  Rather, seemingly the only basis for the supposed contradiction is the fact that 18-year-olds served in the militia, which the majority concedes is merely “circumstantial.”  Contradictory evidence, on the other hand, would be evidence that 18-year-olds had a private right to possess firearms unconnected to militia service—a case in which an 18-year-old sued his parent or guardian, for example, and prevailed, or a militia provision that also referenced a private right to keep and bear arms for non-militia purposes.  Absent such evidence, there is simply no direct contradiction between the militia laws the majority identifies and the later-in-time evidence.  This isn’t to say that 19th century evidence can necessarily justify Pennsylvania’s modern law—and the emergency context, which the panel did not address, may throw a wrinkle into the analysis—but that evidence should not be off the table entirely.  This is especially true when one considers scientific advances in our understanding of brain development that continue up to the present day.

Second, Lara highlights how circuits are dealing with the Supreme Court’s pending decision in Rahimi differently.  It’s somewhat surprising that Lara does not mention Rahimi once—a case currently pending before the Supreme Court involving questions about the scope of “the people” covered by the Second Amendment and the level of generality at which courts should reason by analogy to history.  In NRA v. Bondi, where an Eleventh Circuit panel previously upheld Florida’s ban on 18-20-year-olds purchasing firearms (we covered that decision here), the circuit has agreed to re-hear the case en banc but will do so only after the Supreme Court decides Rahimi.  By contrast, the Eighth Circuit has set Worth v. Jacobson  for a panel oral argument on February 13 (in Worth, a panel previously struck down Minnesota’s 18-20-year-old public carry ban; Leigh Crews discussed that opinion in this prior post).  Given the uncertainty surrounding the scope of the Rahimi decision—namely, whether the justices will attempt to clarify broader methodological questions that have divided lower courts, or limit their holding narrowly to 922(g)(8)—I think it makes some sense to hold cases dealing with laws restricting who may possess or carry guns pending the Supreme Court’s ruling.  Many courts used this approach with public carry challenges prior to Bruen, even though there was similar uncertainty about the scope of that decision.  

In this vein, Judge Tanya Chutkan of the D.C. District Court issued an interesting decision on February 1 granting a motion to stay a Second Amendment challenge to D.C.’s decision to revoke an individual’s concealed carry license due to past arrests uncovered during a 2019 audit of all concealed-carry licenses.  Judge Chutkan observed that Rahimi deals with related issues of when the government may restrict potentially dangerous individuals from accessing firearms, that the Supreme Court may draw a line between judicial and administrative assessments of dangerousness in the Second Amendment context (an issue raised several times at oral argument in Rahimi), and that “Rahimi presents the first chance for the Supreme Court to apply and clarify the historical test announced in Bruen.”  She also observed that the standard for a stay is whether a decision in the related case will help the judge resolve any issue—not necessarily whether the decision will conclusively dictate the outcome in a given case.