5th Circuit Won't Reconsider Under-21 Gun Sale Ban

By Robyn Hagan Cain on April 30, 2013 | Last updated on March 21, 2019

You don’t have to be 21 to get a gun; 18-to-20-year-olds can legally possess and use handguns. Parents or guardians may gift handguns to 18-to-20-year-olds. The under-21 set can even purchase handguns through unlicensed, private sales. Federal law, however, provides that you must be 21 to purchase a gun from a federally-licensed dealer.

In October, a Fifth Circuit Court of Appeals panel unanimously upheld the handgun purchase age restriction, noting that Congress “deliberately adopted a calibrated, compromise approach.” Tuesday, the Fifth Circuit voted against reconsidering that decision en banc.

It was a close vote.

The lawsuit at the center of this appeal pitted the National Rifle Association (NRA) and 18-to-20-year-old wannabe gun buyers against several federal agencies over the constitutionality of 18 U.S.C. §§ 922(b)(1) and (c)(1), as well as its regulations. The plaintiffs claimed that the law violated the Second Amendment and Fifth Amendment equal protection by barring law-abiding 18-to-20-year-old adults from purchasing handguns from federally licensed dealers.

The NRA claimed that the appellate panel's ruling in the case was inconsistent with the Supreme Court's 2008 D.C. v. Heller ruling, and petitioned for en banc rehearing. The Fifth Circuit denied rehearing this week by a one-vote margin.

Judge Edith Jones, in a dissental to that vote, criticizing the panel's "incredibly broad language" upholding the restrictions based on responsibility classifications.

The class is "irresponsible"; the second Amendment protects "law-abiding responsible adults"; the Second Amendment permits "categorical regulation of gun possession by classes of persons" irrespective of their being within the core zone of rights-holders; and finally "Congress could have sought to prohibit all persons under 21 from possession handguns -- or all guns, for that matter." If any of these phrases were used in connection with a First Amendment free speech claim, they would be odious. Free speech rights are not subject to tests of "responsible adults," speakers are not age-restricted, and class-based abridgement of speech is unthinkable today.

We doubt this will be the last you hear of this case. Keep an eye out for a cert petition in this matter in the Supreme Court.

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