Gun Purchase Age Minimums, Straw Purchasing, and Outlier Laws

The en banc Eleventh Circuit recently heard oral argument in NRA v. Commissioner of the Florida Department of Law Enforcement,[1] a Second Amendment challenge to Florida’s post-Parkland ban on the purchase of firearms by 18-to-20-year-olds.  A panel previously upheld the law in a decision we covered here, relying primarily on state regulation of young adult firearm use during the Reconstruction era.  In the briefing and at oral argument, Florida defended its restriction in part by arguing that 18-to-20-year-olds remain free to possess firearms and can obtain them by gift or transfer (from a relative, for example).  Questions surfaced at oral argument, however, about how that argument might interact with federal and state prohibitions on straw purchasing: person A buying a gun with the intent of giving it to person B, while knowing that person B is prohibited from possessing or buying that gun herself.  

Specifically, after Florida’s counsel answered “yes” to the question of whether a parent can give a firearm to a minor under state law, Judge Andrew Brasher asked:

If a 22-year-old goes into a gun store with a 19-year-old and says, “I’m going to buy this gun for this 19-year-old here,” can he do that?

Florida’s attorney responded that there “might be some issues” with a straw purchase in that situation. Here, I’d like to unpack the hypothetical a bit further and examine the context in which the purchase of a firearm for the ultimate benefit of a 19-year-old would actually constitute an illegal straw purchase.  This is a different scenario than one might typically imagine for straw purchasing, because the beneficiary is only a prohibited purchaser and not a prohibited possessor.

Under federal law, straw purchasing is an independent crime as of 2022 and the passage of the Bipartisan Safer Communities Act (for more on what that legislation did, see our coverage here).  But federal straw purchasing statutes are generally limited to purchases that involve an intended beneficiary who is prohibited from possessing guns under federal law.  Specifically, it is a federal crime “to purchase[] any firearm . . . for, on behalf of, or at the request or demand of any other person, knowing or having reasonable cause to believe that such other person” (1) is disqualified from purchasing  a firearm under federal law (these groups, listed under 18 U.S.C. § 922(d), mirror the prohibited possessor categories under 922(g)); (2) intends to use or sell the gun in furtherance of a crime, or (3) intends to sell or dispose of the gun to such a disqualified person.  Thus, federal straw purchasing prohibitions only apply when the intended beneficiary of the sale is a person to whom a sale is prohibited by federal law.  Because 18-to-20-year-olds are generally permitted to purchase and possess guns under federal law,[2] there is no federal legal issue in Florida if a parent buys a gun for his or her 19-year-old son (or, presumably, if a 22-year-old friend buys a gun for that same individual).

Florida also restricts straw purchasing under state law.  Florida law provides that “[a]ny person who knowingly acquires a firearm through purchase or transfer intended for the use of a person who is prohibited by state or federal law from possessing or receiving a firearm commits a felony of the third degree.”  Therefore, the question is whether an 18-to-20-year-old is prohibited under state law from “possessing or receiving” a firearm.  The answer seems relatively clear: the state’s age restriction says only that “[a] person younger than 21 years of age may not purchase a firearm” and that a gun dealer may not facilitate such a sale, but it says nothing about the right of those under 21 to possess or receive guns.  As Florida argued in its brief before the en banc court, the law is “even less restrictive than the Reconstruction-era laws that precluded minors from possessing firearms [because it] allows 18-to-20-year-olds to obtain, possess, and use firearms; they just cannot purchase them.”  In other words, Florida has asserted that the law does not prevent those under 21 “from obtaining firearms from parents, grandparents, brothers and sisters, or family friends.”  And Florida’s straw purchasing restrictions don’t appear to prevent parents, grandparents, or even friends from buying guns with the intent to give them to those under age 21.  To be sure, there may be common law doctrines that bar actions that would undermine or circumvent clear legislative intent.  But, as opposed to Judge Brasher’s hypothetical, the more likely scenario for such doctrines to surface is a situation where a stranger—perhaps a 25-year-old hanging out outside a gun store—buys a gun for a 19-year-old who approaches him and agrees to provide extra compensation.

In contrast to Florida’s regulatory approach, a number of states do ban possession of certain types of firearms by those under the age of 21.[3]  In these states, buying a gun intending to give that gun to someone under the age of 21 would likely violate straw purchasing restrictions at the state level.  For example, Hawaii requires a permit to acquire any firearm and sets the minimum age to obtain such a permit at 21.  The state also requires, for both handguns and long guns, that any transferor verify that the transferee has a permit.  The functional result is that someone under age 21 cannot possess guns in the state, save for limited exceptions for hunting and target shooting, and that anyone who attempts to transfer a gun to an under-21-year-old is committing a crime.

Florida’s law, then, is not all that restrictive when compared to other state approaches outside of the Eleventh Circuit.  Yet Florida is the state in the circuit (which also includes Alabama and Georgia) that has the strictest gun laws.  The Supreme Court’s decision in Bruen contemplates some relevance for whether a firearm regulation is a modern-day outlier—in other words, whether the law is among the most restrictive state approaches nationwide.  As Chief Justice Roberts and Justice Kavanaugh wrote in concurrence, New York’s approach in that case was an “outlier ‘may-issue’ licensing regime” employed by only five other states.

Some of the first age-restriction cases to make their way up to the Supreme Court have involved firearm restrictions that are not substantial outliers but rather middle-of-the-road regulations.  These cases include the Florida purchase ban, Pennsylvania’s state of emergency public carry restrictions, and Minnesota’s ban on the public carry of handguns.  Given the Court’s recent approach to Second Amendment cases, these challenges seem relatively unlikely to make waves.  Rather, challenges to the strictest state approaches that entirely ban possession of guns by 18-to-20-year-olds may present a higher chance of success.