National Rifle Association v. Bureau of Alc ( 2013 )

REVISED April 29, 2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2012
No. 11-10959
Lyle W. Cayce
Clerk
NATIONAL RIFLE ASSOCIATION, INCORPORATED; ANDREW M.
PAYNE; REBEKAH JENNINGS; BRENNAN HARMON,
Plaintiffs–Appellants
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; B.
TODD JONES, In His Official Capacity as Acting Director of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives; ERIC H. HOLDER, JR., U.S.
ATTORNEY GENERAL,
Defendants–Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before KING, PRADO, and HAYNES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
This appeal concerns the constitutionality of 18 U.S.C. §§ 922(b)(1) and
(c)(1), and attendant regulations, which prohibit federally licensed firearms
dealers from selling handguns to persons under the age of 21. Appellants—the
National Rifle Association and individuals who at the time of filing were over the
age of 18 but under the age of 21—brought suit in district court against several
federal government agencies, challenging the constitutionality of the laws. The
No. 11-10959
essence of their challenge is that the laws violate the Second Amendment and
the equal protection component of the Fifth Amendment by preventing law-
abiding 18-to-20-year-old adults from purchasing handguns from federally
licensed dealers. The district court rejected their constitutional claims and
granted summary judgment for the government. We AFFIRM.
I. Background
A. Procedural Background
Appellants filed suit in district court against the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”), ATF’s Acting Director, and the
Attorney General of the United States, challenging the constitutionality of 18
U.S.C. §§ 922(b)(1) and (c)(1), as well as attendant regulations, 27 C.F.R.
§§ 478.99(b)(1), 478.124(a), and 478.96(b). These provisions prohibit licensed
dealers—i.e., federal firearms licensees (“FFLs”)—from selling handguns to
persons under the age of 21. Appellants include: (i) Andrew M. Payne, Rebekah
Jennings, and Brennan Harmon, who were between the ages of 18 and 21 when
the suit was filed; and (ii) the National Rifle Association (“NRA”) on behalf of (a)
18-to-20-year-old members who are prevented from purchasing handguns from
FFLs, and (b) FFL members who are prohibited from making such sales.
Appellants asserted that the federal laws are unconstitutional because they
infringe on the right of 18-to-20-year-old adults to keep and bear arms under the
Second Amendment and deny them equal protection under the Due Process
Clause of the Fifth Amendment. Appellants sought a declaratory judgment that
the laws are unconstitutional, as well as injunctive relief.
Before the district court, the government filed a motion for summary
judgment, arguing that Appellants lacked standing to challenge the federal laws
and that their constitutional claims failed on the merits. The district court
concluded that Appellants had standing, but then determined that Appellants
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No. 11-10959
failed to make out either a viable Second Amendment claim or a viable equal
protection claim. Appellants timely appealed.
B. Statutory Framework
The federal laws at issue—18 U.S.C. §§ 922(b)(1) and (c)(1), 27 C.F.R.
§§ 478.99(b)(1), 478.124(a), and 478.96(b)—were enacted as part of the Omnibus
Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197.
Together, the laws regulate the sale of firearms by FFLs and are part of a larger
statutory package that prohibits persons from “engag[ing] in the business of
importing, manufacturing, or dealing in firearms,” unless a person is a “licensed
importer, licensed manufacturer, or licensed dealer.” 18 U.S.C. § 922(a)(1)(A).
To “engage[] in th[is] business” means to “devote[] time, attention, and labor” to
the manufacture, sale, or importation of firearms or ammunition “as a regular
course of trade or business with the principal objective of livelihood and profit
through the repetitive purchase and resale of firearms.” Id. § 921(21)(A)–(E).
The first contested provision, 18 U.S.C. § 922(b)(1), provides that:
It shall be unlawful for any licensed importer, licensed
manufacturer, licensed dealer, or licensed collector to sell or
deliver . . . any firearm or ammunition to any individual who the
licensee knows or has reasonable cause to believe is less than
eighteen years of age, and, if the firearm, or ammunition is other
than a shotgun or rifle, or ammunition for a shotgun or rifle, to any
individual who the licensee knows or has reasonable cause to believe
is less than twenty-one years of age . . . .
This provision is paired with § 922(c)(1), which prevents an FFL from selling a
firearm to a person “who does not appear in person at the licensee’s business
premises (other than another licensed importer, manufacturer, or dealer)” unless
the person submits a sworn statement that “in the case of any firearm other
than a shotgun or a rifle, [he or she is] twenty-one years or more of age.”
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No. 11-10959
These provisions are the statutory authority for several implementing
regulations that Appellants also contest. First, 27 C.F.R. § 478.99(b)(1) provides
that an FFL
shall not sell or deliver . . . any firearm or ammunition to any
individual who the importer, manufacturer, dealer, or collector
knows or has reasonable cause to believe is less than 18 years of
age, and, if the firearm, or ammunition, is other than a shotgun or
rifle, or ammunition for a shotgun or rifle, to any individual who the
importer, manufacturer, dealer, or collector knows or has reasonable
cause to believe is less than 21 years of age.
Second, 27 C.F.R. §§ 478.96(b) and 478.124(a) prohibit FFLs from selling
firearms unless they obtain a signed copy of Form 4473 from the purchaser.
Form 4473 is used, among other purposes, to establish a purchaser’s eligibility
to possess a firearm by establishing his or her date of birth. Id. § 478.124(c)(1).
It also requires the execution and dating of a sworn statement indicating that
if “the firearm to be transferred is a firearm other than a shotgun or rifle, the
transferee is 21 years or more of age.” Id. § 478.124(f).
Congress later supplemented this regulatory scheme with the Violent
Crime Control and Law Enforcement Act of 1994, which prohibits persons under
the age of 18 from possessing handguns and bars the transfer of handguns to
them, with limited exceptions. Pub. L. No. 103-322, § 110201, 108 Stat. 1796,
2010 (adding 18 U.S.C. § 922(x)). The parties agree that the network of federal
laws amounts to the following. Eighteen-to-twenty-year-olds may possess and
use handguns. Parents or guardians may gift handguns to 18-to-20-year-olds.1
1
See, e.g., S. Rep. No. 90-1097, at 79 (1968) (“[A] minor or juvenile would not be
restricted from owning, or learning the proper usage of [a] firearm, since any firearm which
his parent or guardian desired him to have could be obtained for the minor or juvenile by the
parent or guardian.”); accord S. Rep. No. 89-1866, at 58 (1966). As explained infra, Section
III.B, “minor” in the 1968 Act refers to a person under the age of 21, while “juvenile” refers to
a person under the age of 18.
The government also points the court to an ATF Chief Counsel Opinion, which
advises—in response to a private inquiry—that an FFL may lawfully sell a firearm to a parent
or guardian who is purchasing it for a minor provided that the minor is not otherwise
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No. 11-10959
Those not “engaged in the business” of selling firearms—that is, non-FFLs—may
sell handguns to 18-to-20-year-olds; put differently, 18-to-20-year-olds may
acquire handguns through unlicensed, private sales.2 Eighteen-to-twenty-year-
olds may possess and use long-guns, and may purchase long-guns from FFLs (or
non-FFLs).3 However, the parties also agree that 18-to-20-year-olds may not
purchase handguns from FFLs. Appellants challenge 18 U.S.C. §§ 922(b)(1) and
(c)(1), and corresponding regulations, only to the extent that these laws prohibit
sales of handguns or handgun ammunition by FFLs to 18-to-20-year-olds.4
prohibited from receiving or possessing a firearm. Letter from Daniel Hartnett, Asst. Dir.,
Criminal Enforcement, ATF, to Sig Shore, 23362 (Dec. 5, 1983).
2
The term “engaged in the business” of dealing in firearms does “not include a person
who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a
personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”
18 U.S.C. § 921(a)(21)(C). Furthermore, 18 U.S.C. § 922(a)(6), which proscribes making a false
statement to an FFL while purchasing a firearm, functions as an outer limit on the extent to
which a person under 21 may use “straw men” to purchase a firearm. See United States v.
Bledsoe, 334 F. App’x 711 (5th Cir. 2009) (unpublished) (affirming conviction of under-21
defendant who admitted to paying a third party to purchase a handgun from FFL when third
party stated to the FFL that he was the “actual buyer” of the gun).
3
See 18 U.S.C. § 922(b)(1) (stating that FFL may sell “shotgun or rifle” to person under
21).
4
Most of the States have gone beyond the federal floor. Today, all fifty States (and the
District of Columbia) have imposed minimum-age qualifications on the use or purchase of
particular firearms. Twenty-nine States (and the District of Columbia) impose a minimum-age
qualification only on the purchase or use of handguns. Many States (and the District of
Columbia) proscribe or restrict the sale of handguns to persons under 21 (by non-FFLs) or the
possession of handguns by persons under 21. See, e.g., California (Cal. Penal Code § 27505);
Connecticut (Conn. Gen. Stat. §§ 29-34(b), 29-36f); Delaware (Del. Code Ann. tit. 24, §§ 901,
903); District of Columbia (D.C. Code Ann. §§ 7-2502.03, 22-4507); Hawaii (Haw. Rev. Stat.
§ 134-2(d)); Illinois (430 Ill. Comp. Stat. §§ 65/3(a), 65/4(a)(2)(i)); Iowa (Iowa Code Ann. §
724.22); Maryland (Md. Code Ann., Pub. Safety §§ 5-101(p), 5-133, 5-134); Massachusetts
(Mass. Gen. Laws ch. 140, § 130); New Jersey (N.J. Stat. Ann. § 2C:58-6.1); Ohio (Ohio Rev.
Code Ann. § 2923.211(B)); Rhode Island (R.I. Gen. Laws §§ 11-47-35(a)(1), 11-47-37); see also
New York (N.Y. Penal Law §400.00(1)(a)).
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No. 11-10959
II. Standing
A. Applicable Law
We review questions of standing de novo. Time Warner Cable, Inc. v.
Hudson, 667 F.3d 630, 635 (5th Cir. 2012). The parties seeking access to federal
court bear the burden of establishing their standing. Id. “[T]he irreducible
constitutional minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). The first is an “injury in fact,”
which is a “concrete and particularized . . . invasion of a legally protected
interest.” Id. (citations omitted). The second is that “there must be a causal
connection between the injury and the conduct complained of[;] the injury has
to be fairly . . . trace[able] to the challenged action of the defendant.” Id. (second
alteration in original) (citation and quotation marks omitted). Third, “it must
be likely, as opposed to merely speculative, that the injury will be redressed by
a favorable decision.” Id. (citation and internal quotation marks omitted). Only
injury-in-fact is at issue in this appeal.
“While the proof required to establish standing increases as the suit
proceeds, the standing inquiry remains focused on whether the party invoking
jurisdiction had the requisite stake in the outcome when the suit was filed.”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (citations omitted).
Mootness, however, is “the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).” U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (citation omitted). When “named
plaintiffs will not benefit from a favorable ruling on the question implicating
injunctive relief, we hold that th[e] question is moot as to them.” Pederson v. La.
State Univ., 213 F.3d 858, 874 (5th Cir. 2000).
Under the doctrine of associational standing, an association may have
standing to bring suit on behalf of its members when:
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No. 11-10959
[1] its members would otherwise have standing to sue in their own
right; [2] the interests it seeks to protect are germane to the
organization’s purpose; and [3] neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit.
Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th
Cir. 2010) (citation omitted). The first prong requires that at least one member
of the association have standing to sue in his or her own right. Tex. Democratic
Party v. Benkiser, 459 F.3d 582, 587–88 (5th Cir. 2006).
B. Application
Before oral argument in this case, counsel for Appellants notified us that
Rebekah Jennings and Brendan Harmon had turned 21. Because they have
aged out of the demographic group affected by the ban at bar, the issues on
appeal are moot as to them. See Pederson, 213 F.3d at 874. Andrew Payne, the
third individual Appellant, will remain under the age of 21 throughout the
appeal. Mootness does not affect his claim. In addition, the NRA has asserted
associational standing on behalf of its members who are between the ages of 18
and 21. The NRA submitted a sworn declaration that it had over 11,000
members who would be covered by the ban, and NRA members between the ages
of 18 and 21 submitted sworn declarations that they cannot purchase handguns
from FFLs because of the ban. However, the government contends that Payne
and the NRA’s under-21 members have not suffered an injury-in-fact.
We disagree and hold that Payne and the NRA, on behalf of its under-21
members, have standing to bring this suit. The government is correct that the
challenged federal laws do not bar 18-to-20-year-olds from possessing or using
handguns. The laws also do not bar 18-to-20-year-olds from receiving handguns
from parents or guardians. Yet, by prohibiting FFLs from selling handguns to
18-to-20-year-olds, the laws cause those persons a concrete, particularized
injury—i.e., the injury of not being able to purchase handguns from FFLs. See
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No. 11-10959
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
750–57, 755 n.12 (1976) (finding standing for prospective customers to challenge
constitutionality of state statute prohibiting pharmacists from advertising
prescription drug prices, despite customers’ ability to obtain price quotes in
another way—over the phone from some pharmacies).5
Standing may be satisfied by the presence of “at least one individual
plaintiff who has demonstrated standing to assert the[] [contested] rights as his
own.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264
(1977); see also Horne v. Flores, 557 U.S. 433, 446–47 (2009). Having established
Payne’s standing and the NRA’s associational standing on behalf of its 18-to-20-
year-olds members, we need not discuss the NRA’s associational standing on
behalf of its FFL members. We therefore proceed to the merits of this appeal.
III. Second Amendment Claim
The crux of Appellants’ position on the merits is that the federal ban at bar
violates their rights under the Second Amendment, given the holding in District
of Columbia v. Heller, 554 U.S. 570 (2008). Appellants urge that, by preventing
an 18-to-20-year-old from purchasing handguns from FFLs, the laws
impermissibly infringe on that individual’s right under the Second Amendment
to keep and bear arms. The district court granted summary judgment for the
government, rejecting the Second Amendment claim. We review the
constitutionality of federal statutes de novo. United States v. Portillo–Munoz,
643 F.3d 437, 439 (5th Cir. 2011).
5
This injury is fairly traceable to the challenged federal laws, and holding the laws
unconstitutional would redress the injury. See Lujan, 504 U.S. at 560. Therefore, Payne has
standing to challenge the laws, and the 18-to-20-year-old NRA members have standing to sue
in their own right. The NRA, in turn, has associational standing to sue on behalf of these
members because (i) they have standing to sue in their own right, (ii) challenging laws
preventing 18-to-20-year-olds from purchasing handguns from FFLs is germane to the NRA’s
purpose of safeguarding the right of law-abiding, qualified adults to keep and bear arms, and
(iii) no “factual development” about the 18-to-20-year-old NRA members is necessary to
evaluate the claim asserted or the relief requested. See Am. Physicians, 627 F.3d at 550–53.
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No. 11-10959
No other circuit court has considered the constitutionality of the
challenged federal laws in light of Heller. Only a single district court has
considered the constitutionality of the ban, upholding it under intermediate
scrutiny. See United States v. Bledsoe, No. SA-08-CR-13(2)-XR, 2008 WL
3538717, at *4 (W.D. Tex. Aug. 8, 2008). We affirmed the defendant’s conviction
in that case without reaching the constitutional issue. See United States v.
Bledsoe, 334 F. App’x 711 (5th Cir. 2009) (unpublished). Consequently, this is
an issue of first impression in this circuit. Because we—unlike some of our
fellow circuit courts—have yet to establish a framework for evaluating post-
Heller Second Amendment challenges, we sketch a framework here.
A. Analytical Framework
The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” In Heller, the Supreme Court made clear that the
Second Amendment codified a pre-existing individual right to keep and bear
arms. 554 U.S. at 592, 595. In McDonald v. City of Chicago, 130 S. Ct. 3020(2010), the Court further clarified that “the right to keep and bear arms [is]
among those fundamental rights necessary to our system of ordered liberty,” and
is incorporated against the States via the Fourteenth Amendment. Id. at 3042.
The precise question before the Court in Heller was whether Washington,
D.C. statutes banning the possession of usable handguns in the home—in
addition to requiring residents to keep their firearms either disassembled or
trigger locked—violated the Second Amendment. 554 U.S. at 573–75. The Court
invalidated the laws because they violated the central right that the Second
Amendment was intended to protect—that is, the “right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” Id. at 635
(emphasis added); see also id. at 628–30 (distilling the Second Amendment to its
“core” interest of “self-defense” and the “protection of one’s home and family”).
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No. 11-10959
Indeed, the ban on home handgun possession squarely struck the core of the
Second Amendment—a rare feat, as the Court observed that “[f]ew laws in the
history of our Nation have come close to the severe restriction of the District’s
handgun ban.” Id. at 629. The Court thus noted that the ban “would fail
constitutional muster” under “any of the standards of scrutiny” applicable to
“enumerated constitutional rights.” Id. at 628–29.
In a critical passage, moreover, the Court emphasized that the “right
secured by the Second Amendment is not unlimited.” Id. at 626. As the Court
explained:
From Blackstone through the 19th-century cases, commentators and
courts routinely explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for
whatever purpose. For example, the majority of the 19th-century
courts to consider the question held that prohibitions on carrying
concealed weapons were lawful under the Second Amendment or
state analogues. . . . [N]othing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.
Id. at 626–27 (emphases added) (citations omitted). The Court hastened to add
that it had listed “these presumptively lawful regulatory measures only as
examples”; the list was illustrative, “not exhaustive.” Id. at 627 n.26.6
Understandably, the Court did not undertake an “exhaustive historical
analysis . . . of the full scope of the Second Amendment.” Id. at 626; see also id.
6
The Court’s decision to repeat this passage in McDonald underscores its importance:
“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory
measures as prohibitions on the possession of firearms by felons and the mentally ill, laws
forbidding the carrying of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We
repeat those assurances here.” 130 S. Ct. at 3047 (citation and internal quotation marks
omitted).
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No. 11-10959
at 635 (“[T]here will be time enough to expound upon the historical justifications
for the exceptions we have mentioned if and when those exceptions come before
us.”). Instead, the Court identified the Second Amendment’s central right as the
right to defend oneself in one’s home, and concluded that an absolute ban on
home handgun possession—a gun-control law of historic severity—infringed the
Second Amendment’s core. In so doing, Heller did not set forth an analytical
framework with which to evaluate firearms regulations in future cases. Nor has
this court, since Heller, explained how to determine whether the federal laws at
bar comport with the Second Amendment.7
But our fellow courts of appeals have filled the analytical vacuum. A two-
step inquiry has emerged as the prevailing approach: the first step is to
determine whether the challenged law impinges upon a right protected by the
Second Amendment—that is, whether the law regulates conduct that falls
within the scope of the Second Amendment’s guarantee; the second step is to
determine whether to apply intermediate or strict scrutiny to the law, and then
to determine whether the law survives the proper level of scrutiny. See United
States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of
Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (Heller II); Ezell v. City of
Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United States v. Chester, 628 F.3d
673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir.
2010) United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). But see
United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2011) (en banc)
(eschewing the two-step framework and resisting the “levels of scrutiny
7
Since Heller, we have upheld several federal statutes against Second Amendment
challenges, but we have not established a Second Amendment framework. See, e.g.,
Portillo–Munoz, 643 F.3d at 439–42 (upholding 18 U.S.C. § 922(g)(5), which prevents illegal
aliens from possessing firearms); United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009)
(upholding § 922(g), which bars convicted felons from possessing firearms, based on circuit
precedent); United States v. Dorosan, 350 F. App’x 874, 875–76 (5th Cir. 2009) (unpublished)
(upholding regulation barring possession of handguns on U.S. Postal Service property).
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No. 11-10959
quagmire,” but applying intermediate scrutiny to a categorical restriction). We
adopt a version of this two-step approach and sketch a skeleton of the framework
here, leaving future cases to put meat on the bones.
We agree that the first inquiry is whether the conduct at issue falls within
the scope of the Second Amendment right. See, e.g., Chester, 628 F.3d at 680.
To determine whether a law impinges on the Second Amendment right, we look
to whether the law harmonizes with the historical traditions associated with the
Second Amendment guarantee. See Heller, 554 U.S. at 577–628 (interpreting
Second Amendment based on historical traditions); United States v.
Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“[H]istorical meaning enjoys a
privileged interpretive role in the Second Amendment context.”). Heller
illustrates that we may rely on a wide array of interpretive materials to conduct
a historical analysis. See 554 U.S. at 600–26 (relying on courts, legislators, and
scholars from before ratification through the late 19th century to interpret the
Second Amendment); see also United States v. Rene E., 583 F.3d 8, 13–16 (1st
Cir. 2009) (relying on wide-ranging materials, including late 19th- and early
20th-century cases, to uphold federal ban on juvenile handgun possession).8
If the challenged law burdens conduct that falls outside the Second
Amendment’s scope, then the law passes constitutional muster. See, e.g.,
Marzzarella, 614 F.3d at 89. If the law burdens conduct that falls within the
8
In exploring the “historical understanding of the scope of the right,” 554 U.S. at 625,
the Heller Court looked to a “variety of legal and other sources to determine the public
understanding of [the] legal text in the period after its enactment or ratification,” id. at 605
(emphasis omitted). These sources included “analogous arms-bearing rights,” id. at 600,
adopted by states “[b]etween 1789 and 1820,” id. at 602, and the interpretation of these
provisions by “19th-century courts and commentators,” id. at 603. The Heller Court also
looked to “[p]ost-Civil War [l]egislation,” reasoning that because “those born and educated in
the early 19th century faced a widespread effort to limit arms ownership by a large number
of citizens[,] their understanding of the origins and continuing significance of the Amendment
is instructive.” Id. at 614.
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No. 11-10959
Second Amendment’s scope, we then proceed to apply the appropriate level of
means-ends scrutiny. See id.
We agree with the prevailing view that the appropriate level of scrutiny
“depends on the nature of the conduct being regulated and the degree to which
the challenged law burdens the right.” See Chester, 628 F.3d at 682 (observing
that a “severe burden on the core Second Amendment right of armed self-defense
should require a strong justification,” but “less severe burdens on the right” and
“laws that do not implicate the central self-defense concern of the Second
Amendment[] may be more easily justified” (quotation and citation omitted));
accord Heller II, 670 F.3d at 1257 (“[A] regulation that imposes a substantial
burden upon the core right of self-defense protected by the Second Amendment
must have a strong justification, whereas a regulation that imposes a less
substantial burden should be proportionately easier to justify.”); Masciandaro,
638 F.3d at 470 (observing that the analysis turns on “the character of the
Second Amendment question presented”—that is, “the nature of a person’s
Second Amendment interest [and] the extent to which those interests are
burdened by government regulation”). A regulation that threatens a right at the
core of the Second Amendment—for example, the right of a law-abiding,
responsible adult to possess and use a handgun to defend his or her home and
family, see Heller, 554 U.S. at 635—triggers strict scrutiny. See Heller II, 670
F.3d at 1257; Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682. A less
severe regulation—a regulation that does not encroach on the core of the Second
Amendment—requires a less demanding means-ends showing. See Heller II, 670
F.3d at 1257; Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682. This more
lenient level of scrutiny could be called “intermediate” scrutiny, but regardless
of the label, this level requires the government to demonstrate a “reasonable fit”
between the challenged regulation and an “important” government objective.
See Marzzarella, 614 F.3d at 98; accord Chester, 628 F.3d at 683; see also
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Masciandaro, 638 F.3d at 471 (stating that intermediate scrutiny requires
government to demonstrate that the regulation is “reasonably adapted to a
substantial governmental interest”). This “intermediate” scrutiny test must be
more rigorous than rational basis review, which Heller held “could not be used
to evaluate the extent to which a legislature may regulate a specific, enumerated
right” such as “the right to keep and bear arms.” See 554 U.S. at 628 n.27; see
also id. (“If all that was required to overcome the right to keep and bear arms
was a rational basis, the Second Amendment would be redundant with the
separate constitutional prohibitions on irrational laws, and would have no
effect.”).
We admit that it is difficult to map Heller’s “longstanding,” id. at 626,
“presumptively lawful regulatory measures,” id. at 627 n.26, onto this two-step
framework. It is difficult to discern whether “longstanding prohibitions on the
possession of firearms by felons and the mentally ill, . . . or laws imposing
conditions and qualifications on the commercial sale of arms,” id. at 626–27, by
virtue of their presumptive validity, either (i) presumptively fail to burden
conduct protected by the Second Amendment, or (ii) presumptively trigger and
pass constitutional muster under a lenient level of scrutiny. See, e.g.,
Marzzarella, 614 F.3d at 91 (recognizing that the designation—longstanding,
presumptively lawful measure—is ambiguous). For now, we state that a
longstanding, presumptively lawful regulatory measure—whether or not it is
specified on Heller’s illustrative list—would likely fall outside the ambit of the
Second Amendment; that is, such a measure would likely be upheld at step one
of our framework. See Heller II, 670 F.3d at 1253 (“[A] regulation that is
‘longstanding,’ which necessarily means it has long been accepted by the public,
is not likely to burden a constitutional right; concomitantly the activities covered
by a longstanding regulation are presumptively not protected from regulation
14
No. 11-10959
by the Second Amendment.”).9 We further state that a longstanding measure
that harmonizes with the history and tradition of arms regulation in this
country would not threaten the core of the Second Amendment guarantee. Thus,
even if such a measure advanced to step two of our framework, it would trigger
our version of “intermediate” scrutiny. See Masciandaro, 638 F.3d at 470–71
(applying intermediate scrutiny to and upholding federal regulation banning
possession of loaded handgun in motor vehicle within a national park, and
reasoning that the “longstanding out-of-the-home/in-the-home distinction bears
directly on the level of scrutiny applicable”).
In addition, Heller demonstrates that a regulation can be deemed
“longstanding” even if it cannot boast a precise founding-era analogue. See
Skoien, 614 F.3d at 640–41 (“[W]e do take from Heller the message that
exclusions need not mirror limits that were on the books in 1791.”); cf. Heller II,
670 F.3d at 1253–54 (relying on early 20th-century state statutes to show that
D.C. handgun registration requirement was “longstanding” and did not “impinge
upon the right protected by the Second Amendment”). After all, Heller
considered firearm possession bans on felons and the mentally ill to be
longstanding, yet the current versions of these bans are of mid-20th century
vintage. See Booker, 644 F.3d at 23–24 (explaining that the federal felony
firearm possession ban, 18 U.S.C. § 922(g)(1), “bears little resemblance to laws
in effect at the time the Second Amendment was ratified,” as it was not enacted
until 1938, was not expanded to cover non-violent felonies until 1961, and was
not re-focused from receipt to possession until 1968); Skoien, 614 F.3d at 640–41
(explaining that 18 U.S.C. § 922(g)(4), which forbids firearm possession by a
9
The Heller Court assured that “nothing in [its] opinion should be taken to cast doubt
on” longstanding, presumptively lawful measures. 554 U.S. at 626. The Court also compared
its list of longstanding, presumptively lawful measures with the restriction on possessing
dangerous and unusual weapons, which conduct—the Court explained—fell outside the scope
of the Second Amendment right. Id. at 626–27.
15
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person who has been adjudicated to be mentally ill, was enacted in 1968);
Carlton F. W. Larson, Four Exceptions in Search of A Theory: District of
Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376–80
(2009) (showing that a strictly originalist argument for Heller’s
examples—including bans on firearm possession by felons and the mentally ill,
and laws imposing conditions on commercial arms sales—is difficult to make).
Having sketched our two-step analytical framework, we must emphasize
that we are persuaded to adopt this framework because it comports with the
language of Heller. As for step one, Heller itself suggests that the threshold
issue is whether the party is entitled to the Second Amendment’s protection. See
554 U.S. at 635 (“Assuming that Heller is not disqualified from the exercise of
Second Amendment rights, the District must permit him to register his handgun
. . . .”); see also id. at 626–27 (providing a non-exhaustive list of longstanding,
presumptively lawful regulatory measures). As for step two, by taking rational
basis review off the table, and by faulting a dissenting opinion for proposing an
interest-balancing inquiry rather than a traditional level of scrutiny, the Court’s
language suggests that intermediate and strict scrutiny are on the table. See
id. at 628 n.27; id. at 634 (“[Justice Breyer] proposes . . . none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but
rather a judge-empowering ‘interest-balancing inquiry’ . . . .” (emphasis added)
(quoting id. at 689 (Breyer, J., dissenting))). The Court’s use of the word
“rather” demonstrates that, in the Court’s view, the familiar scrutiny tests are
not equivalent to interest balancing. In rejecting Justice Breyer’s proposed
interest-balancing inquiry, we understand the Court to have distinguished that
inquiry from the traditional levels of scrutiny; we do not understand the Court
to have rejected all heightened scrutiny analysis. But see Heller II, 670 F.3d at1277–78 (Kavanaugh, J. , dissenting) (arguing that the Heller Court’s rejection
of Justice Breyer’s interest-balancing inquiry amounted to a rejection of all
16
No. 11-10959
balancing tests).10 At the very least, the Court did not expressly foreclose
intermediate or strict scrutiny, but instead left us room to maneuver in crafting
a framework.
Furthermore, we are persuaded to adopt the two-step framework outlined
above because First Amendment doctrine informs it. See Marzzarella, 614 F.3d
at 89 n.4 (looking toward the First Amendment for guidance in interpreting the
Second Amendment and observing that “Heller itself repeatedly invokes the
First Amendment in establishing principles governing the Second Amendment”).
First, First Amendment doctrine supports commencing our analysis with a
threshold inquiry into whether the Second Amendment protects the conduct at
issue. Similar to the first step of our Second Amendment framework, the first
step in analyzing a First Amendment challenge is to determine whether the
conduct (i.e., speech) in question is protected. See Ashcroft v. Free Speech Coal.,
535 U.S. 234, 245–46 (2002) (“The freedom of speech has its limits; it does not
embrace certain categories of speech, including defamation, incitement,
obscenity, and pornography produced with real children.”). Second, First
Amendment doctrine demonstrates that, even with respect to a fundamental
constitutional right, we can and should adjust the level of scrutiny according to
the severity of the challenged regulation. See Marzzarella, 614 F.3d at 96–97
(“[T]he right to free speech, an undeniably enumerated fundamental right, is
susceptible to several standards of scrutiny, depending upon the type of law
challenged and the type of speech at issue. We see no reason why the Second
Amendment would be any different.” (citation omitted)); Justice For All v.
Faulkner, 410 F.3d 760, 765–66 (5th Cir. 2005) (discussing different levels of
10
We are further convinced that intermediate and strict scrutiny are on the table by
the Court’s statement that the handgun ban in Heller would be unconstitutional “[u]nder any
of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights.”
Heller, 554 U.S. at 628–29. We reason that, had the Court so intended, it would have expressly
rejected application of any form of heightened scrutiny. See Heller II, 670 F.3d at 1265.
17
No. 11-10959
scrutiny for traditional, nonpublic, and designated fora); see also Bd. of Trs. of
the State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (applying intermediate
scrutiny to commercial speech in light of its “subordinate position in the scale of
First Amendment values”); Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (applying intermediate scrutiny to content-neutral time, place, and
manner restrictions on speech); Palmer ex rel. Palmer v. Waxahachie Indep. Sch.
Dist., 579 F.3d 502, 510–12 (5th Cir. 2009) (reviewing school dress codes under
intermediate scrutiny). Thus, even though the Second Amendment right is
fundamental, McDonald, 130 S. Ct. at 3042, we reject the contention that every
regulation impinging upon the Second Amendment right must trigger strict
scrutiny. See Heller II, 670 F.3d at 1256 (“The [Supreme] Court has not said,
however, and it does not logically follow, that strict scrutiny is called for
whenever a fundamental right is at stake.”); Chester, 628 F.3d at 682 (“We do
not apply strict scrutiny whenever a law impinges upon a right specifically
enumerated in the Bill of Rights.”); Adam Winkler, Scrutinizing the Second
Amendment, 105 Mich. L. Rev. 683, 697–98 (2007) (observing that “[i]t simply
is not true that every right deemed ‘fundamental’ triggers strict scrutiny,” and
that “[e]ven among those incorporated rights that do prompt strict scrutiny, such
as the freedom of speech and of religion, strict scrutiny is only occasionally
applied”). In harmony with well-developed principles that have guided our
interpretation of the First Amendment, we believe that a law impinging upon
the Second Amendment right must be reviewed under a properly tuned level of
scrutiny—i.e., a level that is proportionate to the severity of the burden that the
law imposes on the right.
B. Background of the Challenged Federal Laws
Before we apply the framework described above to the challenged federal
laws, we place them in context. Congress passed the Omnibus Crime Control
and Safe Streets Act of 1968 following a multi-year inquiry into violent crime
18
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that included “field investigation and public hearings.” S. Rep. No. 88-1340, at
1 (1964). According to the preamble to the Act, Congress had found “that there
is a widespread traffic in firearms moving in or otherwise affecting interstate or
foreign commerce, and that the existing Federal controls over such traffic do not
adequately enable the States to control this traffic within their own borders
through the exercise of their police power.” Pub. L. No. 90-351, § 901(a)(1), 82
Stat. 197, 225 (1968). The preamble further declares:
[T]he ease with which any person can acquire firearms other than
a rifle or shotgun (including criminals, juveniles without the
knowledge or consent of their parents or guardians, narcotics
addicts, mental defectives, armed groups who would supplant the
functions of duly constituted public authorities, and others whose
possession of such weapons is similarly contrary to the public
interest) is a significant factor in the prevalence of lawlessness and
violent crime in the United States.
Id. § 901(a)(2), 82 Stat. at 225; see also Huddleston v. United States, 415 U.S.
814, 824 (1974) (stating that the purpose of the 1968 Act was to curb crime by
keeping “firearms out of the hands of those not legally entitled to possess them
because of age, criminal background, or incompetency” (quoting S. Rep. No. 90-
1501, at 22 (1968))).
Moreover, in a section titled “Acquisition of firearms by juveniles and
minors,”11 the Senate Report accompanying the Act provides:
[T]he title would provide a uniform and effective means through the
United States for preventing the acquisition of the specified
firearms by persons under such ages. However, under the title, a
minor or juvenile would not be restricted from owning, or learning
the proper usage of the firearm, since any firearm which his parent
or guardian desired him to have could be obtained for the minor or
juvenile by the parent or guardian.
11
Throughout the Act and accompanying legislative materials, the term “minor” refers
to a person under the age of 21, while the term “juvenile” refers to a person under the age of
18. As explained infra, Section III.C.1, the age of majority at common law was 21, not 18. It
was not until the 1970s that States lowered the age of majority to 18 for most purposes.
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The clandestine acquisition of firearms by juveniles and minors is
a most serious problem facing law enforcement and the citizens of
this country. The controls proposed in the title are designed to meet
this problem and to substantially curtail it.
S. Rep. No. 90-1097, at 79 (1968).
Congress’s investigation confirmed a “causal relationship between the easy
availability of firearms other than a rifle or a shotgun and . . . youthful criminal
behavior.” Pub. L. No. 90-351, § 901(a)(6), 82 Stat. at 225–26; see also Federal
Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinquency
of the Sen. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon
S. Cohen) (“The greatest growth of crime today is in the area of young people
. . . . The easy availability of weapons makes their tendency toward wild, and
sometimes irrational behavior that much more violent, that much more
deadly.”). Having found that concealable firearms had been “widely sold by
federally licensed importers and dealers to emotionally immature, or thrill-bent
juveniles and minors prone to criminal behavior,” Pub. L. No. 90-351, § 901(a)(6),
82 Stat. at 226, Congress concluded that “only through adequate Federal control
over interstate and foreign commerce in these weapons, and over all persons
engaging in the business of importing, manufacturing, or dealing in them, can
this grave problem be properly dealt with, and effective State and local
regulation of this traffic be made possible,” id. § 901(a)(3), 82 Stat. at 225.
The legislative record makes clear that Congress’s purpose in preventing
persons under 21—including 18-to-20-year-olds—from purchasing handguns
from FFLs was to curb violent crime. Essentially, then, the federal laws at issue
are safety-driven, age-based categorical restrictions on handgun access.
C. Whether the Challenged Federal Laws Burden Conduct Protected
by the Second Amendment
Having placed the challenged federal laws in their proper context, we now
consider whether the laws—which combine to prevent 18-to-20-year-olds from
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No. 11-10959
purchasing handguns from FFLs—burden conduct that is protected by the
Second Amendment.
1. Founding-Era Attitudes
As the Supreme Court recognized in Heller, the right to keep and bear
arms has never been unlimited. 554 U.S. at 626; see also Robertson v. Baldwin,
165 U.S. 275, 281 (1897) (observing that the right to keep and bear arms, like
other rights “inherited from our English ancestors” and protected by the Bill of
Rights, has “from time immemorial, been subject to certain well-recognized
exceptions, arising from the necessities of the case”). Since even before the
Revolution, gun use and gun control have been inextricably intertwined. The
historical record shows that gun safety regulation was commonplace in the
colonies, and around the time of the founding, a variety of gun safety regulations
were on the books; these included safety laws regulating the storage of gun
powder, laws keeping track of who in the community had guns, laws
administering gun use in the context of militia service (including laws requiring
militia members to attend “musters,” public gatherings where officials would
inspect and account for guns), laws prohibiting the use of firearms on certain
occasions and in certain places, and laws disarming certain groups and
restricting sales to certain groups. See Adam Winkler, Gunfight: The Battle over
the Right to Bear Arms in America 113–18 (2011); Saul Cornell & Nathan
DeDino, A Well Regulated Right: The Early American Origins of Gun Control,
73 Fordham L. Rev. 487, 502–13 (2004). It appears that when the fledgling
republic adopted the Second Amendment, an expectation of sensible gun safety
regulation was woven into the tapestry of the guarantee.
Noteworthy among these revolutionary and founding-era gun regulations
are those that targeted particular groups for public safety reasons. For example,
several jurisdictions passed laws that confiscated weapons owned by persons
who refused to swear an oath of allegiance to the state or to the nation. See
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Cornell & DeDino, 73 Fordham L. Rev. at 507–08. Although these Loyalists
were neither criminals nor traitors, American legislators had determined that
permitting these persons to keep and bear arms posed a potential danger. Id.
(“The law demonstrates that in a well regulated society, the state could disarm
those it deemed likely to disrupt society.”); see also Winkler, Gunfight, at 116
(concluding that “[t]he founders didn’t think government should have the power
to take away everyone’s guns, but they were perfectly willing to confiscate
weapons from anyone deemed untrustworthy,” a group that included law-abiding
slaves, free blacks, and Loyalists); Don B. Kates & Clayton E. Cramer, Second
Amendment Limitations and Criminological Considerations, 60 Hastings L.J.
1339, 1360 (2009) (“[F]rom time immemorial, various jurisdictions recognizing
a right to arms have nevertheless taken the step of forbidding suspect groups
from having arms. American legislators at the time of the Bill of Rights seem
to have been aware of this tradition . . . .” (footnote omitted)).
In the view of at least some members of the founding generation,
disarming select groups for the sake of public safety was compatible with the
right to arms specifically and with the idea of liberty generally. See Saul
Cornell, Commonplace or Anachronism: The Standard Model, the Second
Amendment, and the Problem of History in Contemporary Constitutional Theory,
16 Const. Comment. 221, 231–36 (1999) (discussing Pennsylvania Anti-
Federalists’ support for a high level of gun regulation). Shortly after the
Pennsylvania ratifying convention for the original Constitution, for example, the
Anti-Federalist minority recommended the following amendment: “That the
people have a right to bear arms for the defense of themselves and their own
state, or the United States . . . and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or real danger of public
injury from individuals.” Id. at 233 (emphasis added) (quoting The Address and
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Reasons of Dissent of the Minority, in The Documentary History of the
Ratification of the Constitution 588, 617–24 (St. Historical Soc’y of Wis., 1976)).12
These categorical restrictions may have been animated by a classical
republican notion that only those with adequate civic “virtue” could claim the
right to arms. Scholars have proposed that at the time of the founding, “the
right to arms was inextricably and multifariously linked to that of civic virtu
(i.e., the virtuous citizenry),” and that “[o]ne implication of this emphasis on the
virtuous citizen is that the right to arms does not preclude laws disarming the
unvirtuous citizens (i.e., criminals) or those who, like children or the mentally
imbalanced, are deemed incapable of virtue.” Kates & Cramer, 60 Hastings L.J.
at 1359–60.13 This theory suggests that the Founders would have supported
limiting or banning “the ownership of firearms by minors, felons, and the
mentally impaired.” See Don B. Kates, Second Amendment, in 4 Encyclopedia
of the American Constitution 1640 (Leonard W. Levy et al. eds., 1986) (emphasis
added); see also United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001)
(inferring from scholarly sources that “it is clear that felons, infants and those
of unsound mind may be prohibited from possessing firearms” (emphasis
added)).
12
Additionally, William Rawle—“a prominent lawyer who had been a member of the
Pennsylvania Assembly that ratified the Bill of Rights,” Heller, 554 U.S. at 607—maintained
that although the Second Amendment restrained the power of Congress to “disarm the people,”
the right to keep and bear arms nonetheless “ought not, . . . in any government, to be abused
to the disturbance of the public peace.” William Rawle, A View of the Constitution of the United
States of America 125–26 (William S. Hein & Co. 2003) (2d ed. 1829).
13
See also Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 Law &
Contemp. Probs. 125, 130 (Winter 1986) (“[T]he philosophers of republicanism were not blind
to the desirability of disarming certain elements within their society . . . . Arms were ‘never
lodg’d in the hand of any who had not an Interest in preserving the publick Peace . . . .’”
(quoting J. Trenchard & W. Moyle, An Argument Shewing, That a Standing Army Is
Inconsistent with a Free Government, And Absolutely Destructive to the Constitution of the
English Monarchy (London 1697)).
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Notably, the term “minor” or “infant”—as those terms were historically
understood—applied to persons under the age of 21, not only to persons under
the age of 18. The age of majority at common law was 21, and it was not until
the 1970s that States enacted legislation to lower the age of majority to 18. See,
e.g., Black’s Law Dictionary 847 (9th ed. 2009) (“An infant in the eyes of the law
is a person under the age of twenty-one years, and at that period . . . he or she
is said to attain majority . . . .” (quoting John Indermaur, Principles of the
Common Law 195 (Edmund H. Bennett ed., 1st Am. ed. 1878))); id. (“The
common-law rule provided that a person was an infant until he reached the age
of twenty-one. The rule continues at the present time, though by statute in some
jurisdictions the age may be lower.” (quoting John Edward Murray Jr., Murray
on Contracts § 12, at 18 (2d ed. 1974))); see generally Larry D. Barnett, The Roots
of Law, 15 Am. U. J. Gender Soc. Pol’y & L. 613, 681–86 (2007). If a
representative citizen of the founding era conceived of a “minor” as an individual
who was unworthy of the Second Amendment guarantee, and conceived of 18-to-
20-year-olds as “minors,” then it stands to reason that the citizen would have
supported restricting an 18-to-20-year-old’s right to keep and bear arms.
2. Nineteenth-Century Legislators, Courts, and Commentators
Arms-control legislation intensified through the 1800s, see Cornell &
DeDino, 73 Fordham L. Rev. at 512–13, and by the end of the 19th century,
nineteen States and the District of Columbia had enacted laws expressly
restricting the ability of persons under 21 to purchase or use particular firearms,
or restricting the ability of “minors” to purchase or use particular firearms while
the state age of majority was set at age 21.14 See, e.g., State v. Quail, 92 A. 859,
14
1856 Ala. Acts 17; 16 Del. Laws 716 (1881); 27 Stat. 116–17 (1892) (District of
Columbia); 1876 Ga. Laws 112; 1881 Ill. Laws 73; 1875 Ind. Acts 86; 1884 Iowa Acts 86; 1883
Kan. Sess. Laws 159; 1873 Ky. Acts 359; 1890 La. Acts 39; 1882 Md. Laws 656; 1878 Miss.
Laws 175–76; Mo. Rev. Stat. § 1274 (1879); 1885 Nev. Stat. 51; 1893 N.C. Sess. Laws 468–69;
1856 Tenn. Pub. Acts 92; 1897 Tex. Gen. Laws 221–22; 1882 W. Va. Acts 421–22; 1883 Wis.
24No. 11-10959
859 (Del. 1914) (discussing indictment for “knowingly sell[ing] a deadly weapon
to a minor other than an ordinary pocket knife”); State v. Allen, 94 Ind. 441(1884) (discussing prosecution for “unlawfully barter[ing] and trad[ing] to
Wesley Powles, who was then and there a minor under the age of twenty-one
years, a certain deadly and dangerous weapon, to wit: a pistol, commonly called
a revolver, which could be worn or carried concealed about the person”);
Tankersly v. Commonwealth, 9 S.W. 702, 702 (Ky. 1888) (discussing indictment
for selling a deadly weapon to a minor); see also Rene E., 583 F.3d at 14 (“During
this period and soon after, a number of states enacted similar statutes
prohibiting the transfer of deadly weapons—often expressly handguns—to
juveniles.”). By the early 20th century, three more States restricted the
purchase or use of particular firearms by persons under 21.15 By 1923, therefore,
twenty-two States and the District of Columbia had made 21 the minimum age
for the purchase or use of particular firearms.16
Meanwhile, “19th-century courts and commentators,” Heller, 554 U.S. at
603, maintained that age-based restrictions on the purchase of
firearms—including restrictions on the ability of persons under 21 to purchase
Sess. Laws 290; 1890 Wyo. Sess. Laws 1253. Alabama, Georgia, Indiana, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, North Carolina, Tennessee, Texas, and Wyoming had Second
Amendment analogues in their respective constitutions at the time they enacted these
regulations.
15
Okla. Stat. ch. 25, art. 47 §§ 1-3 (1890) (though not admitted as State until 1907);
1923 N.H. Laws 138, 139; 1923 S.C. Acts 207, 221. Oklahoma and South Carolina have
Second Amendment analogues in their respective constitutions.
16
From the mid-19th century through the early 20th century, twenty-one other States
imposed age qualifications on the purchase or use of certain firearms. As one early 20th
century commentator wrote of the state legislation: “The acts are quite consistent in refusing
to allow the issue of licenses to young persons or criminals, and in punishing persons who sell
or put into possession of the forbidden classes the forbidden weapons.” J. P. Chamberlain,
Legislatures and the Pistol Problem, 11 A.B.A. J. 596, 598 (1925).
Today—as mentioned supra, Section I.B.—all fifty States (and the District of Columbia)
have imposed minimum-age qualifications on the use or purchase of particular firearms.
Thirty-five States have Second Amendment analogues in their respective constitutions.
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No. 11-10959
firearms—comported with the Second Amendment guarantee. To illustrate,
Thomas Cooley—a “judge and professor” “who wrote a massively popular 1868
Treatise on Constitutional Limitations,” Heller, 554 U.S. at 616—agreed that
“the State may prohibit the sale of arms to minors” pursuant to the State’s police
power. Thomas M. Cooley, Treatise on Constitutional Limitations 740 n.4 (5th
ed. 1883) (citing State v. Calicutt, 69 Tenn. 714 (1878)). Cooley recognized the
validity of imposing age qualifications on arm sales, despite his acknowledgment
that the “federal and State constitutions provide that the right of the people to
bear arms shall not be infringed.” Id. at 429.
In the 1878 case that Cooley referenced, the Tennessee Supreme Court
upheld a conviction under a state law making it a misdemeanor to sell, give, or
loan a pistol to a minor, Calicutt, 69 Tenn. at 714–15, when the age of majority
was set at 21. The defendant argued that the law violated the state’s Second
Amendment analogue, reasoning that because “every citizen who is subject to
military duty has the right ‘to keep and bear arms,’ . . . this right necessarily
implies the right to buy or otherwise acquire, and the right in others to give, sell,
or loan to him.” Id. at 716. In rejecting the defendant’s challenge, the court
explained that the “wise and salutary” legislation was passed to “prevent crime”
and suppress “the pernicious and dangerous practice of carrying arms,” and was
not “intended to affect, and [did] not in fact abridge,” the right to keep and bear
arms. Id. at 715–17. Likewise, in Coleman v. State, 32 Al. 581, 582–83 (1858),
the Alabama Supreme Court upheld a conviction for violating a state law
making it a misdemeanor to sell, give, or lend a pistol to a male minor, when the
age of majority was set at 21.
3. Conclusion
We have summarized considerable evidence that burdening the conduct
at issue—the ability of 18-to-20-year-olds to purchase handguns from FFLs—is
consistent with a longstanding, historical tradition, which suggests that the
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conduct at issue falls outside the Second Amendment’s protection. At a high
level of generality, the present ban is consistent with a longstanding tradition
of targeting select groups’ ability to access and to use arms for the sake of public
safety. See Winkler, Gunfight, at 116; Cornell & DeDino, 73 Fordham L. Rev.
at 507–08. More specifically, the present ban appears consistent with a
longstanding tradition of age- and safety-based restrictions on the ability to
access arms. In conformity with founding-era thinking, and in conformity with
the views of various 19th-century legislators and courts, Congress restricted the
ability of minors under 21 to purchase handguns because Congress found that
they tend to be relatively immature and that denying them easy access to
handguns would deter violent crime. Compare Kates & Cramer, 60 Hastings
L.J. at 1360 (reflecting founding-era attitude that minors were inadequately
virtuous to keep and bear arms), and Calicutt, 69 Tenn. at 716–17 (referring to
prohibition on firearm sales to minors as “wise and salutary” legislation
designed to “prevent crime”), with Pub. L. No. 90-351, § 901(a)(6), 82 Stat. 197,
226 (1968) (reflecting concern that handguns had been “widely sold by [FFLs] to
emotionally immature, or thrill-bent juveniles and minors prone to criminal
behavior”).
This reasoning finds support in United States v. Rene E., in which the
First Circuit canvassed sources similar to ours and upheld the constitutionality
of 18 U.S.C. § 922(x), which prohibits persons under age 18 from possessing
handguns and prohibits transfers of handguns to such persons, with exceptions.
583 F.3d at 16. The court inferred that “[t]here is some evidence that the
founding generation would have shared the view that public-safety-based
limitations of juvenile possession of firearms were consistent with the right to
keep and bear arms,” and that “[i]n this sense, the federal ban on juvenile
possession of handguns is part of a longstanding practice of prohibiting certain
classes of individuals from possessing firearms—those whose possession poses
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a particular danger to the public.” Id. at 15. The court rested its holding that
the statute was constitutional on “the existence of a longstanding tradition of
prohibiting juveniles from both receiving and possessing handguns.” Id. at 12.
However, because the line between childhood and adulthood was historically 21,
not 18, the First Circuit’s conclusion that there is a “longstanding tradition” of
preventing persons under 18 from “receiving” handguns applies with just as
much force to persons under 21.
To be sure, we are unable to divine the Founders’ specific views on
whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second
Amendment guarantee. The Founders may not even have shared a collective
view on such a subtle and fine-grained distinction. The important point is that
there is considerable historical evidence of age- and safety-based restrictions on
the ability to access arms. Modern restrictions on the ability of persons under
21 to purchase handguns—and the ability of persons under 18 to possess
handguns—seem, to us, to be firmly historically rooted.
Nonetheless, we face institutional challenges in conducting a definitive
review of the relevant historical record. Although we are inclined to uphold the
challenged federal laws at step one of our analytical framework, in an abundance
of caution, we proceed to step two. We ultimately conclude that the challenged
federal laws pass constitutional muster even if they implicate the Second
Amendment guarantee.17
17
Before we scrutinize the challenged federal laws, however, we address one final scope
issue: Appellants’ contention that a right to purchase firearms from FFLs must vest at age 18.
Appellants offer two arguments in favor of this contention. We reject both.
Appellants first argue that 18-to-20-year-olds have a Second Amendment right to
purchase firearms from FFLs because, at the time of the founding, 18-to-20-year-olds were
assigned to serve in the militia and militia duty necessarily implies the right to purchase
firearms. The 1792 Militia Act provided that “each and every free able-bodied white male
citizen of the respective States, resident therein, who is or shall be of the age of eighteen years,
and under the age of forty-five years (except as is herein after excepted) shall severally and
respectively be enrolled in the militia.” Militia Act § 1, 1 Stat. 271. But Appellants’ militia-
based attack on the federal laws at bar is unavailing. First, the right to arms is not co-
28
No. 11-10959
D. Whether to Apply a More or Less Demanding Level of Scrutiny
Assuming that the challenged federal laws burden conduct within the
scope of the Second Amendment, we must evaluate the laws under a suitable
standard of constitutional scrutiny. A law that burdens the core of the Second
Amendment guarantee—for example, “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home,” Heller, 554 U.S. at
635—would trigger strict scrutiny, while a less severe law would be
proportionately easier to justify. See Heller II, 670 F.3d at 1257; Masciandaro,
638 F.3d at 470; Chester, 628 F.3d at 682. The latter, “intermediate” standard
extensive with the duty to serve in the militia. See Heller, 554 U .S. at 589–94 (decoupling
the former from the latter). Second, if the right to arms and the duty to serve in the militia
were linked in the manner that Appellants declare, then Appellants’ argument proves too
much. In some colonies, able-bodied sixteen-year-olds were obligated to serve in the militia,
and yet, Appellants assure us that they are not challenging restrictions on handgun possession
by or sales to persons under age 18. E.g., Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 62(assigning to militia “every able bodied male person [with exceptions] from sixteen years of age
to fifty”). Third, in some colonies and States, the minimum age of militia service either dipped
below age 18 or crept to age 21, depending on legislative need. Compare An Act for the Better
Regulating [of] the Militia, ch. 20, §§1, 4, 1777 N.J. Acts 26 (setting minimum age at 16 in
1777), with An Act to embody, for a limited Time, One Thousand of the Militia of this State,
for the Defence of the Frontiers thereof, ch. 24, §§ 3-4, 1779 N.J. Acts 58, 58-69 (setting
minimum age at 21, but reserving right to accept age 16-21, in 1779). Such fluctuation
undermines Appellants’ militia-based claim that the right to purchase arms must fully vest
precisely at age 18—not earlier or later. Indeed, the 1792 Militia Act gave States discretion
to impose age qualifications on service, and several States chose to enroll only persons age 21
or over, or required parental consent for persons under 21. E.g., An Act to regulate the Militia,
§ 2, 1843 Ohio Acts 53, 53 (setting minimum age at 21). And this is all not to mention the
anachronism at play: we no longer have a founding-era-style militia.
Appellants also argue that a Second Amendment right to purchase firearms from FFLs
vests at age 18 because the age of majority is now 18. True, in the 1970s, States lowered the
age of majority for most purposes from 21 to 18. But “majority or minority is a status,” not a
“fixed or vested right.” Jeffrey F. Ghent, Statutory Change of Age of Majority as Affecting Pre-
existing Status or Rights, 75 A.L.R. 3d 228 § 3 (1977). The terms “majority” and “minority”
lack content without reference to the right at issue. Seventeen-year-olds may not vote or serve
in the military, while 18-year-olds may. Twenty-year-olds may not purchase alcohol (by state
statute), purchase lottery tickets in some States (e.g., Ariz. Rev. Stat. § 5-515(a)), purchase
handguns in some States (by state statute), or purchase handguns from FFLs (by federal
statute)—while 21-year-olds may. Neither the Twenty-Sixth Amendment nor state law setting
the age of majority at 18 compels Congress or the States to select 18 as the minimum age to
purchase alcohol, lottery tickets, or handguns.
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No. 11-10959
of scrutiny requires the government to show a reasonable fit between the law
and an important government objective.
Unquestionably, the challenged federal laws trigger nothing more than
“intermediate” scrutiny. We have demonstrated that this federal scheme is not
a salient outlier in the historical landscape of gun control. And unlike the D.C.
ban in Heller, this ban does not disarm an entire community, but instead
prohibits commercial handgun sales to 18-to-20-year-olds—a discrete category.
The narrow ambit of the ban’s target militates against strict scrutiny.
Indeed, Heller’s observation that longstanding prohibitions on firearm
possession by felons and the mentally ill are presumptively valid, 554 U.S. at
626, 627 n.26, entails that the Second Amendment permits “categorical
regulation of gun possession by classes of persons.” Booker, 644 F.3d at 23; see
also Skoien, 614 F.3d at 640, 641 (inferring from Heller that “statutory
prohibitions on the possession of weapons by some persons are proper” and
noting that “[c]ategorical limits on the possession of firearms would not be a
constitutional anomaly”). Like the federal bans targeting felons and the
mentally ill, the federal laws targeting minors under 21 are an outgrowth of an
American tradition of regulating certain groups’ access to arms for the sake of
public safety. Compare Kates & Cramer, 60 Hastings L.J. at 1360 (arguing that
the founding generation sought to disarm the unvirtuous, including minor
children, felons, and the mentally ill), with S. Rep. No. 90-1501, at 22 (1968)
(stating that the purpose of the 1968 Act was to curb crime by keeping “firearms
out of the hands of those not legally entitled to possess them because of age,
criminal background or incompetency”). To the extent that the ban on handgun
sales to minors under 21 is analogous to longstanding, presumptively lawful
bans on possession by felons and the mentally ill, see Heller, 554 U.S. at 626, 627
n.26, the ban at bar should trigger an “intermediate” level of scrutiny. Cf.
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No. 11-10959
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009) (“Restrictions on speech
based on its content are ‘presumptively invalid’ and subject to strict scrutiny.”).
Moreover, as with felons and the mentally ill, categorically restricting the
presumptive Second Amendment rights of 18-to-20-year-olds does not violate the
central concern of the Second Amendment. The Second Amendment, at its core,
protects “law-abiding, responsible” citizens. See Heller, 554 U.S. at 635(emphasis added). Congress found that persons under 21 tend to be relatively
irresponsible and can be prone to violent crime, especially when they have easy
access to handguns. See Pub. L. No. 90-351, § 901(a)(6), 82 Stat. at 197, 225
(1968) (referring to “emotionally immature, or thrill-bent juveniles and minors
prone to criminal behavior”); cf. Chester, 628 F.3d at 682–83 (applying
intermediate scrutiny to 18 U.S.C. § 922(g)(9), the federal domestic-violence-
misdemeanant firearm possession ban, and holding that misdemeanant-
plaintiff’s claimed “right to possess a firearm in his home for the purpose of
self-defense” was “not within the core right identified in Heller—the right of a
law-abiding, responsible citizen to possess and carry a weapon for self-defense”).
Granted, 18-to-20-year-olds may have a stronger claim to the Second
Amendment guarantee than convicted felons and domestic-violence
misdemeanants have. Culpable criminal conduct has not put 18-to-20-year-olds
in the cross-hairs of the ban at bar. Still, unlike bans on felons, the mentally ill,
and domestic-violence misdemeanants, this ban does not severely burden the
presumptive Second Amendment rights of the targeted class’s members. While
the former bans extinguish the Second Amendment rights of the class members
by totally preventing them from possessing firearms, this ban is not so extreme.
First, these federal laws do not severely burden the Second Amendment
rights of 18-to-20-year-olds because they impose an age qualification on
commercial firearm sales: FFLs may not sell handguns to persons under the age
of 21. Far from a total prohibition on handgun possession and use, these laws
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No. 11-10959
resemble “laws imposing conditions and qualifications on the commercial sale
of arms,” which Heller deemed “presumptively lawful.” See 554 U.S. at 626–27
& n.26. It is not clear that the Court had an age qualification in mind when it
penned that sentence, but to the extent that these laws resemble presumptively
lawful regulatory measures, they must not trigger strict scrutiny.
Second, these laws do not strike the core of the Second Amendment
because they do not prevent 18-to-20-year-olds from possessing and using
handguns “in defense of hearth and home.” See id. at 628–30, 635; cf. Heller II,
670 F.3d at 1255–58 (applying intermediate scrutiny to D.C. registration
requirements that “make it considerably more difficult for a person lawfully to
acquire and keep a firearm, including a handgun, for the purpose of self-defense
in the home—the ‘core lawful purpose’ protected by the Second Amendment,” but
that do not “prevent[] an individual from possessing a firearm in his home or
elsewhere, whether for self-defense or hunting, or any other lawful purpose”).
Under this federal regulatory scheme, 18-to-20-year-olds may possess and use
handguns for self-defense, hunting, or any other lawful purpose; they may
acquire handguns from responsible parents or guardians; and they may possess,
use, and purchase long-guns. Accordingly, the scheme is sufficiently bounded
to avoid strict scrutiny.
Third, these laws demand only an “intermediate” level of scrutiny because
they regulate commercial sales through an age qualification with temporary
effect. Any 18-to-20-year-old subject to the ban will soon grow up and out of its
reach. It is useful to compare this case with United States v. Yancey, in which
the Seventh Circuit held that 18 U.S.C. § 922(g)(3), the illegal-drug-user firearm
possession ban, was “far less onerous” than the firearm-possession bans on
felons and the mentally ill because “unlike those who have been convicted of a
felony or committed to a mental institution and so face a lifetime ban, an
unlawful drug user like [the defendant] could regain his right to possess a
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No. 11-10959
firearm simply by ending his drug abuse.” 621 F.3d 681, 686–87 (7th Cir. 2010).
Similar logic applies here. The temporary nature of the burden reduces its
severity. Consequently, we hold that these laws deserve what we have dubbed
an “intermediate” level of scrutiny.
E. Whether These Laws Survive “Intermediate” Scrutiny
In applying “intermediate” scrutiny, we determine whether there is a
reasonable fit between the law and an important government objective; that is,
the government must show that the law is reasonably adapted to an important
government interest. See Marzzarella, 614 F.3d at 98; accord Chester, 628 F.3d
at 683; see also Masciandaro, 638 F.3d at 470. We conclude that the challenged
ban passes constitutional muster under “intermediate” scrutiny.
The government has put forth evidence that, through the 1968 Act,
Congress sought to manage an important public safety problem: the ease with
which young persons—including 18-to-20-year-olds—were getting their hands
on handguns through FFLs. As discussed supra, Section III.B, Congress
conducted a multi-year investigation that revealed a causal relationship between
the easy availability of firearms to young people under 21 and the rise in crime.
See Pub. L. No. 90-351, § 901(a)(6), 82 Stat. 197, 225–26 (1968) (identifying a
“causal relationship between the easy availability of firearms other than a rifle
or shotgun and juvenile and youthful criminal behavior”); id. § 901(a)(2), 82 Stat.
at 225 (identifying “ease with which” young persons could “acquire firearms
other than a rifle or shotgun” as a “significant factor in the prevalence of
lawlessness and violent crime in the United States”). Indeed, at a hearing held
in connection with Congress’s inquiry, a law enforcement official reported, “The
greatest growth of crime today is in the area of young people, juveniles, and
young adults. The easy availability of weapons makes their tendency toward
wild, and sometimes irrational behavior that much more violent, that much
more deadly.” Federal Firearms Act: Hearings Before the Subcomm. to
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Investigate Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th Cong.
57 (1967) (testimony of Sheldon S. Cohen).
The legislative record illustrates that Congress was concerned not only
with “juveniles” under the age of 18, but also with “minors” under the age of 21.
See S. Rep. No. 90-1097, at 79 (1968) (“The clandestine acquisition of firearms
by juveniles and minors is a most serious problem facing law enforcement and
the citizens of this country.”) Congress’s investigation had shown that “juveniles
account for some 49 percent of the arrests for serious crimes in the United
States,” while “minors account for 64 percent of the total arrests in this
category.” S. Rep. No. 90-1097, at 77. Specifically, “minors under the age of 21
years accounted for 35 percent of the arrests for the serious crimes of violence
including murder, rape, robbery, and aggravated assault,” and 21 percent of the
arrests for murder. See 114 Cong. Rec. 12279, 12309 (1968) (statement of Sen.
Thomas J. Dodd, Chairman, Sen. Subcomm. on Juvenile Delinquency).
The legislative record also demonstrates that Congress was particularly
concerned with the FFL’s role in the crime problem. The investigation had
revealed that FFLs constituted the central conduit of handgun traffic to young
persons. See Federal Firearms Act: Hearings Before the Subcomm. to Investigate
Juvenile Delinquency of the Sen. Comm. on the Judiciary, 89th Cong. 67 (1965)
(testimony of Sheldon S. Cohen) (“The vast majority, in fact, almost all of these
firearms, are put into the hands of juveniles by importers, manufacturers, and
dealers who operate under licenses issued by the Federal Government . . . . The
way to end this dangerous practice is to stop these federal licensees from selling
firearms to juveniles and this is one of the major things that [the proposed
legislation] would do.”); Pub. L. No. 90-351, § 901(a)(6), 82 Stat. at 226 (finding
that concealable firearms had been “widely sold by federally licensed importers
and dealers to emotionally immature, or thrill-bent juveniles and minors prone
to criminal behavior”); id. § 901(a)(3), 82 Stat. at 225 (concluding that “only
34
No. 11-10959
through adequate Federal control over interstate and foreign commerce in these
weapons, and over all persons engaging in the business of importing,
manufacturing, or dealing in them, can this grave problem be properly dealt
with, and effective State and local regulation of this traffic be made possible”).18
Additionally, the legislative record reflects Congress’s concern with the
“particular type of weapon that is predominantly used by the criminal” and that
is “principally used in the commission of serious crime”—i.e., the “handgun.”
S. Rep. No. 89-1866, at 4–7 (1966). The handgun’s size made it easy to carry and
conceal, which in turn made it susceptible to “clandestine acquisition,” S. Rep.
No. 90-1097, at 79, and “criminal use,” S. Rep. No. 89-1866, at 4.
Overall, the government has marshaled evidence showing that Congress
was focused on a particular problem: young persons under 21, who are immature
and prone to violence, easily accessing handguns, which facilitate violent crime,
primarily by way of FFLs. Accordingly, Congress restricted the ability of young
persons under 21 to purchase handguns from FFLs. See 18 U.S.C § 922(b)(1).
We find that the government has satisfied its burden of showing a
reasonable means-ends fit between the challenged federal laws and an important
government interest. First, curbing violent crime perpetrated by young persons
under 21—by preventing such persons from acquiring handguns from
FFLs—constitutes an important government objective. See, e.g., Schall v.
Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and compelling state interest’
in protecting the community from crime cannot be doubted.”).
18
See also Huddleston, 415 U.S. at 825 (“From this outline of the Act, it is apparent that
the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the
Act directly controls access to weapons by users. Firearms are channeled through dealers to
eliminate the mail order and the generally widespread commerce in them, and to insure that,
in the course of sales or other dispositions by these dealers, weapons could not be obtained by
individuals whose possession of them would be contrary to the public interest.”); United States
v. Rybar, 103 F.3d 273, 280 (3d Cir. 1996) (“[T]he Omnibus Act channelled [sic] all interstate
traffic through licensees and prohibited licensees from transferring them to persons under 21
or living out-of-state.”).
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No. 11-10959
Second, Congress selected means that were reasonably adapted to
achieving that objective. Congress found that the ease with which young
persons under 21 could access handguns—as opposed to other guns—was
contributing to violent crime, and also found that FFLs—as opposed to other
sources—constituted the central conduit of handgun traffic to young persons
under 21. Congress, in turn, reasonably tailored a solution to the particular
problem: Congress restricted the ability of persons under 21 to purchase
handguns from FFLs, while allowing (i) 18-to-20-year-old persons to purchase
long-guns, (ii) persons under 21 to acquire handguns from parents or guardians,
and (iii) persons under 21 to possess handguns and long-guns. See 18 U.S.C.
§ 922(b)(1), (c)(1); see also supra, Section I.B.19
Alternatively, Congress could have sought to prohibit all persons under 21
from possessing handguns—or all guns, for that matter. But Congress
deliberately adopted a calibrated, compromise approach. See 114 Cong. Rec. at
12309 (Sen. Dodd) (“At the most [the relevant provisions] could cause minor
inconveniences to certain youngsters . . . by requiring that a parent or guardian
over 21 years of age make a handgun purchase for any person under 21.”); see
also S. Rep. 90-1097, at 79 (stating that “a minor or juvenile would not be
restricted from owning, or learning the proper usage of [a] firearm, since any
firearm which his parent or guardian desired him to have could be obtained for
the minor by the parent or guardian”); accord S. Rep. No. 89-1866, at 58.
Since 1968, the means-ends fit between the ban and its objective has
retained its reasonableness. The threat posed by 18-to-20-year-olds with easy
access to handguns endures. In 1999, for example, one senator noted:
19
As discussed, it was not until 1994 that Congress prohibited persons under 18 from
possessing handguns and prohibited transfers of handguns to them, with exceptions. See Pub.
L. No. 103-322, § 110201, 108 Stat. 1796, 2010 (1994) (adding 18 U.S.C. § 922(x)).
36
No. 11-10959
Firearms trace data collected as part of the Youth Crime Gun
Interdiction Initiative (YCGII) paint a disturbing picture of crime
gun activity by persons under 21. In the most recent YCGII Trace
Analysis Report, the age of the possessor was known for 32,653, or
42.8 percent, of the 72,260 crime guns traced. Of these 32,563 guns,
approximately 4,840, or 14.8 percent, were recovered from 18-20
year-olds. Indeed, the most frequent age of crime gun possession
was 19 years of age, and the second most frequent was 18 years of
age.
At the same time, according to the 1997 Uniform Crime Reports, the
most frequent age arrested for murder was 18 years of age, and the
second most frequent was 19 years of age. Those aged 18-20
accounted for 22 percent of all arrest[s] for murder in 1997.
145 Cong. Rec. 7503 (1999) (statement of Sen. Charles Schumer); see also 145
Cong. Rec. 18119 (1999) (“Studies show that one in four gun murders are
committed by people aged 18 to 20.”) (statement of Rep. Grace Napolitano).
Furthermore, a 1999 report by the U.S. Department of Treasury and the
U.S. Department of Justice found that “[i]n 1997, 18, 19 and 20 year olds ranked
first, second, and third in the number of gun homicides committed”:
Of all gun homicides where an offender was identified, 24 percent
were committed by 18 to 20 year olds. This is consistent with the
historical pattern of gun homicides over the past ten years.
Among murderers, 18 to 20 year olds were more likely to use a
firearm than adults 21 and over. More specifically, in 1997, 74
percent of the homicides committed by 18 to 20 year old offenders
involved firearms. In contrast, only 61 percent of homicides
committed by offenders 21 or over involved firearms. The under-21
offender age groups showed a significant shift toward the use of
firearms in committing homicides by the mid-1980’s. By the 1990’s,
these offender groups were using firearms to commit homicides
more than 70 percent of the time. Although the proportion of 18 to
20 year olds who use firearms to commit homicides has declined
since the1994 peak, it remains higher than levels recorded before
1990. Similarly, in non-lethal crimes, including assault, rape, and
robbery, 18 to 20 year old offenders were more likely to use guns
than both younger and older offender age groups. For non-lethal
crimes of violence from 1992 to 1997, in cases where the weapon and
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No. 11-10959
age of offender were identified, 15 percent of 18 to 20 year old
offenders used a firearm, in contrast to 10 percent of adult
offenders, and 5 percent of offenders 17 and under.
U.S. Dep’t of the Treasury & U.S. Dep’t of Justice, Gun Crime in the Age Group
18–20, at 2 (June 1999) (citations ommitted); see also id. at 3 (“Handguns
comprised 85 percent of the crime guns known to be recovered from 18 to 20 year
olds” in twenty-seven cities participating in the study).
Recent data confirm that preventing handguns from easily falling into the
hands of 18-to-20-year-olds remains critical to public safety. An FBI Uniform
Crime Report for 2009 shows that persons aged 19, 18, and 20 accounted for the
first, second, and third highest percentages of arrests, respectively, for any age
up to age 24 (after which data are reported by age group). U.S. Dep’t of Justice
& Fed. Bureau of Investigation, Crime in the United States 2009, Table 38:
A r r e s t s b y A g e ( S e p t . 2 0 1 0 ) ,
http://www2.fbi.gov/ucr/cius2009/data/table_38.html (last visited Oct. 18, 2012)
(“2009 CIUS Report”) (reflecting: age 18 (4.8%); age 19 (5.0%); and age 20 (4.6%).
In 2009, 18-to-20-year-olds accounted for over 19% of all murder and
non-negligent manslaughter arrests, 14% of all arrests for forcible rape, almost
24% of all robbery arrests, and 12% of all aggravated assault arrests, see id.,even though they comprised only about 4.3% of the population.20, 21
20
The government in its summary judgment brief calculated the population figure by
dividing the total estimated population in December 2009 for ages 18,19, and 20 (4,344,942
+ 4,484,666 + 4,415,714) by the total estimated population for all ages in that month
(308,200,409). See U.S. Census Bureau, Dep’t of Commerce, Population Estimates: National
Population Estimates for the 2000s (June 2010),
http://www.census.gov/popest/data/national/asrh/2009/2009-nat-res.html (last visited Oct. 18,
2012); see also U.S. Census Bureau, Dep’t of Commerce, Statistical Abstract of the United
States: 2012, Table 11: Resident Population by Race, Hispanic Origin, and Single Years of Age:
2009 (131 ed. 2012), http://www.census.gov/compendia/statab/2012/tables/12s0011.pdf (last
visited Oct. 18, 2012) (estimating the total population—as of July 1, 2009—as 307,007,000,
and the population of persons aged 18, 19, and 20 as 4,389,000, 4,484,000, and 4,340,000,
respectively, which yields a 4.3% population figure for 18-to-20-year olds).
The 2009 CIUS Report was not an aberration. Similar to the 2009 report, the 2010
CIUS Report shows that 18-, 19-, and 20-year-olds accounted for the three highest percentages
38
No. 11-10959
Nonetheless, Appellants counter that the emergence of unlicensed, private
gun owners who are selling handguns to young adults undermines the
reasonableness of the fit between the federal scheme and its objective. We
decline Appellants’ invitation to strike down these laws, under intermediate
scrutiny, on the ground that they do not completely prevent young adults from
accessing handguns and committing violent crimes. It is well-settled that “a
statute is not invalid under the Constitution because it might have gone farther
than it did, that a legislature need not strike at all evils at the same time, and
that reform may take one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind.” Buckley v. Valeo, 424
U.S. 1, 105 (1976) (citations and internal quotation marks omitted). Congress
designed its scheme to solve a particular problem: violent crime associated with
the trafficking of handguns from FFLs to young adults. Because Congress’s
of arrests for any age up to 24 (after which data are reported by age group); and, like the 2009
report, the 2010 report shows that 18-to-20-year-olds accounted for a disproportionately high
percentage of arrests for violent crimes. See U.S. Dep’t of Justice & Fed. Bureau of
Investigation, Crime in the United States 2010, Table 38: Arrests by Age (Sept. 2011),
http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10tb
l39.xls (last visited Oct. 10, 2012) (reflecting: age 18 (4.6%); age 19 (4.9%); age 20 (4.7%)).
21
We add that Congress’s finding that minors under 21 are prone to violent crime,
especially with guns-in-hand, is entitled to some deference. “Congress is far better equipped
than the judiciary” to make “predictive judgments” and “amass and evaluate the vast amounts
of data” bearing upon “complex” and “dynamic” issues. See Turner Broad. Sys. Inc. v. FCC, 512
U.S. 622, 665–66 (1994) (internal quotation marks omitted).
Furthermore, even putting aside deference, modern scientific research supports the
commonsense notion that 18-to-20-year-olds tend to be more impulsive than young adults aged
21 and over. See, e.g., Brief for the Am. Med. Ass’n et al. as Amici Curiae in Support of Neither
Party, Miller v. Alabama, 132 S. Ct. 2455 (2012) (Nos. 10-9646, 10-9647), 2012 WL 121237,
at 19–20 (“The brain’s frontal lobes are still structurally immature well into late adolescence,
and the prefrontal cortex is ‘one of the last brain regions to mature.’ This, in turn, means that
‘response inhibition, emotional regulation, planning and organization . . . continue to develop
between adolescence and young adulthood.’” (citations omitted)); Lawrence Steinberg et al.,
Age Differences in Future Orientation and Delay Discounting, 80 Child Dev. 28, 40–41 (2009)
(“[C]hanges in impulse control and planning are mediated by a ‘cognitive control’
network . . . which matures more gradually and over a longer period of time, into early
adulthood.”).
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No. 11-10959
intended scheme reasonably fits that objective, the ban at bar survives
“intermediate” scrutiny.
* * *
We therefore hold that the challenged federal laws are constitutional
under the Second Amendment. Heller does not cast doubt on them.
IV. Equal Protection Claim
We also reject Appellants’ contention that the ban violates the equal
protection component of the Fifth Amendment. “[E]qual protection analysis
requires strict scrutiny of a legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental right or operates to
the peculiar advantage of a suspect class.” Mass. Bd. of Ret. v. Murgia, 427 U.S.
307, 312 (1976). First, we have demonstrated that the challenged laws do not
impermissibly interfere with Second Amendment rights. Second, “age is not a
suspect classification.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000).
Unlike race- or gender-based classifications, which require a “tighter fit
between the discriminatory means and the legitimate ends they serve,” the
government may “discriminate on the basis of age without offending” the
constitutional guarantee of equal protection “if the age classification in question
is rationally related to a legitimate state interest.” Id. at 83–84. “[W]hen
conducting rational basis review,” a court “will not overturn” the legislation
“unless the varying treatment of different groups or persons is so unrelated to
the achievement of any combination of legitimate purposes that we can only
conclude that the government’s actions were irrational.” Id. at 84 (internal
quotation marks and alterations omitted). “[B]ecause an age classification is
presumptively rational, the individual challenging its constitutionality bears the
burden of proving the facts on which the classification is apparently based could
not reasonably be conceived to be true by the governmental decisionmaker.” Id.
at 84 (internal quotation marks omitted).
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No. 11-10959
For the same reasons that the challenged laws are reasonably adapted to
an important state interest, see supra Section III.E, the laws are rationally
related to a legitimate state interest. Appellants have failed to show that
Congress irrationally imposed age qualifications on commercial arms sales.
AFFIRMED.
41