Fifth Circuit Upholds 18-20 Year Old Gun Purchase Ban

NRA v. BATF. There is an impression that the Fifth Circuit is pro-gun, because it was the first to rule that the Second Amendment is an individual right. But it’s also worth noting that they upheld the PFA restrictions even though they offer the barest of due process protections. I will have more analysis of the opinion later, when I have time to read it.

UPDATE: Just giving a quick skim, it’s the same sad story. “We are very uncomfortable with this right, so we will go ahead and apply a low level of scrutiny to this which we will call intermediate, which, of course, is just perfect for upholding this statute.” The decision quotes heavily from Saul Cornell, the Joyce Funded scholar who attempted to undo the Standard Model of the Second Amendment.

UPDATE: Some discussion over at Volokh in the comments.

13 thoughts on “Fifth Circuit Upholds 18-20 Year Old Gun Purchase Ban”

  1. Just prepare yourselves for the eventuality that this is not granted cert. It’s not a priority case and SCOTUS could be very likely to let it fester looking for at least one more circuit to weigh in.

  2. Oh, let me repeat here something that I think is interesting.

    There was an interesting point laid into the decision by one of the decision’s authors (my money is on a young clerk…) who made sure to, in multiple locations, stress that all of the historical evidence supporting the 18-21 yr old purchase ban occurred when age of majority was 21.

    I think this may be significant.

    1. Which makes sense, if the age of majority was still 21. But its not really. They can vote. They go go to war. They can own handguns, rifles and shotguns. They can buy rifles and shotguns. I think that fact shows that its completely arbitrary that they can’t buy handguns, and it should not pass any test.

      1. Even then, they could be required to go off to war, but were not citizens. “Old enough to fight, old enough to vote” was a great bumper sticker, but “Too old to fight, too old to vote” isn’t quite so persuasive, is it?

        1. I’ve seen lots of 18 and 19-year-olds walking around Camp Lejeune and Fort Bragg with all manor of weaponry. The BATF should crack down.

          1. The law in question concerned sales by dealers — not issued weapons or privately purchased weapons. A ban on possession would probably not survive this same analysis.

      2. It’s equally arbitrary that one can’t be a Representative until age 25. (Oh, it’s in the Constitution, but it’s still arbitrary.)

        “Arbitrary” is not a problem, even for strict scrutiny, as long as they can show compelling interest and narrowest-tailoring, and that the grouping is relevant to the interest and tailoring.

        The former is a gimme in this case, and the latter is actually arguable in context; given precedent I don’t have any surprise that the Court found it acceptable.

        (Arbitrary meaning not logically required by a premise, mind you – one could nevertheless mount some pretty good defenses of either 18 or 21, which would be harder to justify for, say, 15 or 30. Or 10 and 45.

        Remember, the age of majority is itself completely arbitrary, using the same definitions.

        At the same time, it’s nearly universally accepted that one is necessary.

        So if we throw out everything arbitrary “because arbitrary”, we’d throw out the very age of majority itself.

        Should 16-year-olds be able to sign contracts? Buy pistols from gun dealers? Buy a bottle of whiskey?

        Maybe! But that just reinforces that 18 is as arbitrary as 21, and thus doesn’t remove the underlying question or let “arbitrary!” be an automatic disqualifier.

        Some arbitrariness is inevitable and probably necessary in legislation – and it need not be sufficiently unjust in itself to disqualify.

        In other words, there’s arbitrary and then there’s arbitrary.

        “People under 18” is arbitrary. So is “People with an A in their first name” – but the two forms of arbitrariness are radically different, and the former can be defended in many contexts as a valid and useful category the way the latter couldn’t be.)

  3. There is an impression that Texas is pro-gun as well. They’re not bad, but they’re certainly not the best. Let’s not forget that this was in Houston (home of Shelia Jackson-Lee).

    Perhaps the NRA should stick to lobbying legislators. I’m not impressed with their legal team. Something tells me that Alan Gura could’ve taken the same inputs and come out with a win.

    1. I won’t speak for Alan here, but given the way he litigates, I don’t think he would have litigated this issue this early, and when he did, it would be a hapless state or city which had a total 18-21 firearm possession ban.

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