Fifth Circuit Declares Federal Age Limits On Adult Gun Ownership Unconstitutional

Authored by Jonathan Turley,

The United States Court of Appeals for the Fifth Circuit has issued a major ruling on the Second Amendment, declaring that federal prohibitions on gun sales to adults between the ages of 18-20 are unconstitutional. The case is Reese v. ATF. For gun rights advocates, it may have been better if this decision had been handed down during the Biden Administration. The Trump Administration will likely support the ruling and might not appeal to the Supreme Court.

The case concerns 18 U.S.C. §§ 922(b)(1) and (c)(1), and related regulations, including 27 C.F.R. §§ 478.99(b), 478.124(a), and 478.96(b). These provisions are the basis for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to bar Federal Firearms Licensees (FFLs) from selling or delivering handguns to adults under the age of twenty-one.

Writing for the panel (with Judge Jennifer Walker Elrod, a George W. Bush appointee. and Judge Rhesa Hawkins Barksdale, a George H.W. Bush appointee), Judge Edith Hollan Jones relied on the 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen to find that the prohibition was not grounded in the historical tradition of the amendment:

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…[statues which ‘prohibit Federal Firearms Licensees]…from selling or delivering handguns to adults under the age of twenty-one. and their attendant regulations are unconstitutional in light of our Nation’s historic tradition of firearm regulation.”

The decision reverses the ruling of Judge Robert Rees Summerhays of the United States District Court for the Western District of Louisiana, a Trump appointee.

The case involved some interesting historical arguments about how some states set the age for the militia at 21 rather than 18. The effort to ground the provisions in a historical context proved unavailing since most states set the age at 18.

“The government’s theory inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age. Then the government works backward to assert that these laws are consistent with founding-era analogues focusing on the minority status and general “irresponsibility” of eighteen-to-twenty-year-olds.”

Instead, the court found ample support for the right of young adults to bear arms:

“[C]ontrary to the government’s recitation of concerns expressed in the colonial and founding eras about the “irresponsibility” of those under twenty-one, these young individuals were expected to keep the peace rather than disturb it. In addition to serving in the militia, eighteen-to-twenty-year-olds could be obliged to join the posse comitatus, for which the minimum age was often fifteen or sixteen, and bring “such arms or weapons as they have or can provide”…Before the emergence of standing police forces, the posse comitatus was made up of civilians who accompanied sheriffs or other officials in pursuit of fugitives. … In early colonial America, the posse was “transformed . . . from an instrument of royal prerogative to an institution of local self-governance” that “all but precipitated the American Revolution.” Citizens could be called to “execute arrests, level public nuisances, and keep the peace;” they faced fines or imprisonment if they refused. Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety.”

Everytown for Gun Safety, a gun control group associated with former New York mayor Mike Bloomberg, called upon the Trump Administration to appeal the decision:

“We hope the federal government will fight this reckless ruling by seeking rehearing en banc, or taking the case directly to the Supreme Court.”

There is an argument for the Solicitor General to defend the federal law as a matter of course. However, the ruling is consistent with the views of many in the Administration.

Had this decision come down under the Biden Administration, an appeal would likely have been taken and this could have strongly reinforced the Court’s Second Amendment jurisprudence. Success at the Supreme Court would have extended this precedent nationally. Of course, there is always the unknown of how Chief Justice John Roberts would react to such limits. Roberts has previously signaled his willingness to entertain reasonable limits.

The case, however, will add persuasive authority for challenges in various states to age limitations.