Brown v. Bureau of Alcohol, Tobacco, Firearms and ExplosivesBrown v. Bureau of Alcohol, Tobacco, Firearms and Explosives
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants’ Motion to Dismiss and Plaintiffs’ Motion for Summary Judgment. ECF Nos. 23, 28. For the reasons that follow, Defendants’ Motion to Dismiss is DENIED and Plaintiffs’ Motion for Summary Judgment is GRANTED.
I. FACTUAL BACKGROUND
A. Undisputed Facts
This case requires the Court to assess the protected right of the people under the Second Amendment to the Constitution to keep and bear arms.
Plaintiffs Second Amendment Foundation (“SAF“)1 and West Virginia Citizens Defense League (“WVCDL“) are organizational plaintiffs. Id. ¶¶ 9-10. WVCDL “is [a] nonpartisan, nonprofit membership organization formed in 2008 with a purpose of preserving, expanding, and perpetuating the right to keep and bear arms in the State of West Virginia.” Id. ¶ 10. WVCDL includes adult members between the ages of eighteen years and twenty years who, absent the handgun ban, would purchase handguns and the associated ammunition. Id. Brown and Weekley are members of both organizational plaintiffs. Id. ¶¶ 7-8.
Plaintiffs assert claims against Defendants Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“); Steven Dettelbach, the Director of ATF; and Merrick Garland, Attorney General of the United States, alleging injuries-in-fact due to the statutory prohibition against 18-to-20-year-olds from purchasing handguns and handgun ammo. Id. ¶¶ 11-13. Brown and Weekley both attempted to purchase handguns from FFLs in and around June and July 2022. Id. ¶¶ 18-30. Each FFL refused the sales because they were under twenty-one years of age. Id.
B. Defendants’ Response
For purposes of Plaintiffs’ Rule 56 motion, the Court treats these facts as undisputed. Defendants filed a Response to Plaintiffs’ Statement of Undisputed Material Facts in Support of Plaintiffs’ Motion for Summary Judgment [ECF No. 34] pursuant to this District‘s Local Rule of Civil Procedure 7.02. However, Defendants’ submission does not create any genuine issues of material fact sufficient to preclude consideration of summary judgment. That Response lists eight (8) factual statements from Plaintiffs’ motion and, for six (6) of those, simply offers “Statement disputed. Defendants have no knowledge as to the truth of this statement.” ECF No. 34. Simply denying any knowledge about factual statements made in a sworn declaration does not carry a non-movant‘s burden under Rule 56. Another part of the response simply notes Defendants’ inability to verify factual assertions. Id. Although the Court is required to make all inferences in the light most favorable to the non-movant, Defendants’ burden in facing a Rule 56 motion is not insignificant. As Judge Bailey summarized,
[a]dditionally, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” [Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)]. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted). Although all justifiable inferences are to be drawn in favor of the non-movant, the non-moving party “cannot create a genuine issue of material fact through mere speculation of the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Anderson v. Profrac Mfg., LLC, No. 5:20-CV-227, 2022 WL 2902846, at *2 (N.D.W. Va. May 25, 2022) (Bailey, J.). Defendants do not even engage in speculation based on stacked inferences. They simply “dispute” Plaintiffs’ factual statement averring lack of knowledge to “verify.”
II. PROCEDURAL HISTORY
On August 30, 2022, Brown, pro se, filed suit against the ATF, the Director, the Attorney General, and Patrick Morrisey, the West Virginia Attorney General. ECF No. 1. On the same date, summonses were issued to the initial defendants and notice of general guidelines for appearing pro se in federal court was given. ECF Nos. 3, 4. The next day, the case was referred to the Honorable Michael J. Aloi, United States Magistrate Judge, for written orders or reports and recommendations on dispositive matters and for decisions of any other matters that may arise. ECF No. 5;
On September 23, 2022, Brown‘s counsel filed a notice of appearance and moved for pro hac vice admission for a visiting attorney. ECF Nos. 8-10. On September 27, 2022, the First Amended Complaint for Declaratory Judgment and Injunctive Relief was filed on behalf of Brown, Weekley, SAF, and WVCDL, pleading allegations against Defendants ATF, Dettelbach, and Garland. ECF No. 11. The next day, summonses were issued to those defendants. ECF No. 12. Because Plaintiffs retained counsel; the Court vacated its referral order and terminated the referred status of the case. ECF No. 14. On December 12, 2022, Defendants, by counsel, filed Motion to Dismiss Plaintiffs’ First Amended Complaint. ECF Nos. 23, 24. Plaintiffs timely responded in opposition to Defendants’ motion and moved for summary judgment. ECF Nos. 25, 27, 28, 29. Defendants replied in support of their motion to dismiss and in opposition to Plaintiffs’ motion for summary judgment. ECF Nos. 30, 31, 33, 34, 35. Plaintiffs replied in support of their motion for summary judgment and in opposition to Defendants’ motion. ECF No. 36. Plaintiffs and Defendants have filed supplemental authority during the pendency of their motions. ECF Nos. 37, 38, 39. Thus, the motions are fully briefed and ripe for review.
III. LAW
A. Legal Standards
1. Motion to Dismiss
Under
Under
A court should dismiss a complaint if it does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 942, 952 (4th Cir. 1992).
2. Motion for Summary Judgment
Summary judgment, however, is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
B. Applicable Law
“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 Bruen, the Supreme Court “kep[t] with Heller” but “decline[d] to adopt that two-part approach,” finding it to be “one step too many.” Bruen, 142 S. Ct. at 2126-27. Bruen rejected any “means-end scrutiny” entirely. Id. at 2125-26. “Bruen effected a sea change in Second Amendment law.” Maryland Shall Issue, Inc. v. Moore, 2023 WL 8043827, at *2 (4th Cir. Nov. 21, 2023) (Richardson, J.). Bruen‘s holding is more rooted in textualism and originalism: if the “plain text [of the Second Amendment] covers an individual‘s conduct, [then] the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2125-26. “To justify its regulation, the government may not simply posit that the regulation promotes an important interest.” Id. To demonstrate the regulation of that conduct is within the bounds of the Second Amendment, “the government must demonstrate that the regulation is consistent with the Nation‘s historic tradition of firearm regulation. Only if a firearm regulation is consistent with the Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second
In Bruen, the Supreme Court emphasized that the petitioners were “two ordinary, law-abiding, adult citizens,” making them “part of ‘the people’ whom the Second Amendment protects.” Id. at 2119. “Like most rights, the right secured by the Second Amendment is not unlimited. 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 . . . .” Heller, 554 U.S. at 626.
“Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 142 S. Ct. at 2132 (internal citation omitted). Indeed, courts are instructed to use analogies to “historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” Id. (emphasis in original).
The Fourth Circuit recently summarized the task before this Court. The Supreme Court
supplied an analysis centered on the Second Amendment‘s text and history. [Bruen,] 142 S. Ct. at 2126-30. The Court explained that “when the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Id. at 2126. At that point, the challenged regulation is unconstitutional unless the government can show that “the regulation is consistent with this Nation‘s historical tradition of firearm regulation.” Id. Only then “may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.‘” Id. (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Maryland Shall Issue, Inc., 2023 WL 8043827, at *3.
With this context,
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.
are prohibited from selling or delivering handguns to person under the age of 21. However, a minor or juvenile is not prohibited by Federal law from possessing, owning, or learning the proper usage of firearms since any firearm that the parents or guardian desire the minor to have can be obtained by the parents or guardian.
ECF No. 24-1, Ex. A, Opinion of the Chief Counsel of ATF, No 23362 (Dec. 5, 1983) (hereinafter the “ATF Opinion Letter“).
IV. DISCUSSION
Because adults between eighteen and twenty years old are statutorily precluded by
Defendants filed the pending motion to dismiss pursuant to
Plaintiffs filed their motion for summary judgment and response in opposition to Defendants’ motion to dismiss, contending they have standing to sue and
A. Standing
The Court, of course, starts with jurisdiction particularly given Defendants advance a standing challenge to Plaintiffs’ claims. The judicial power vested by Article III of the Constitution extends only to “Cases” and “Controversies.”
“An association has associational standing when at least one of its ‘identified’ members ‘would otherwise have standing to sue in their own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.‘” Outdoor Amusement Bus. Ass‘n v. Dep‘t of Homeland Sec., 983 F.3d 671, 683 (4th Cir. 2020) (internal citation omitted). Defendants allege Plaintiffs lack standing because they have failed to demonstrate an injury-in-fact.
To establish an injury-in-fact, a plaintiff must “show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Spokeo, Inc. v. Robins, 578 U.S. 330, 332 (2016) (citing Lujan, 504 U.S. at 560). An injury is particularized if it “affect[s] the plaintiff in a personal and individual way,” and it is concrete if it is “‘de facto‘; that is, it must actually exist.” Id. at 339-40 (citations omitted).
Brown and Weekley contend they have suffered an injury-in-fact because they wish to purchase handguns and handgun ammunition from FFLs but are precluded by statute because of their ages. Brown and Weekley have each attempted to purchase handguns and associated ammunition from FFLs but have been turned away. ECF No. 28-3, Brown Decl.; ECF No. 28-2, Weekley Decl. Defendants argue Brown and Weekley have not suffered an injury at all because federal statutes and regulations do not preclude 18-, 19-, and 20-year-olds from possessing handguns and handgun ammunition, so long as Plaintiffs’ parents or guardians purchase them from FFLs as a bona fide gift. ECF No. 24.
Defendants generally miss the point and Plaintiffs’ injury is clear. Plaintiffs do not dispute that 18-to-20-year-olds who are law-abiding adults and not otherwise banned from firearm possession are not prohibited from possessing handguns. Brown and Weekley‘s injury prompting the filing of this suit is that they cannot purchase handguns and handgun ammunition from FFLs as a result of the age-based ban.
Defendants’ specific arguments are likewise unavailing. First, the suggestion Plaintiffs suffer no injury because a parent or guardian can simply purchase the gun and give it to an 18- to 20-year-old overly minimizes Plaintiffs’ plight. Deprivation of a constitutional right is a deprivation and, necessarily, an injury in fact, no matter if an “easy” and lawful work-around exists. Moreover, the Supreme Court of the United States previously rejected the Government‘s reasoning in a
Brown and Weekley‘s injury, therefore, is not solved by the ability to receive a gift of a handgun from a parent or guardian. See Fraser v. ATF, 2023 WL 3355339 (E.D. Va. 2023) (holding 18-to-20-year-olds have standing to challenge the age-based handgun ban and the statutory age prohibition violates the Second Amendment); see also Nat. Rifle Ass‘n of Am., Inc. v. ATF, 700 F.3d 185, 191-92 (5th Cir. 2012) (“by prohibiting FFLs from selling guns 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.“).
The Government‘s suggestion erroneously draws too large a distinction between the right to possess and the right to purchase a firearm. Although the Second Amendment does not expressly protect the right to “purchase” firearms, that right must exist by implication if the right to “keep and bear arms” is to have its full meaning and effect. “Commonsense and logic tell us that, unless one is a maker of guns, the right to ‘keep‘/have a gun necessarily means that one must purchase it, steal it, be given it by another, or find one that another has lost.” Fraser, 2023 WL 5617899, at *7.
Judge Payne‘s analysis in Fraser proved prescient. Unlike him, the Court now has the benefit of the Fourth Circuit‘s decision in Maryland Shall Issue, Inc. v. Moore.3 There, in the context of determining whether purchasing a firearm falls within the scope of the Second Amendment‘s protection, see infra, the Fourth Circuit found the issue “not complicated.” Id. at *4. “If you do not already own a handgun, then the only way to ‘keep’ or ‘bear’ one is to get one, either through sale, rental, or gift.” Id. (emphasis in original). The Fourth Circuit also dismissed the suggestion that the 30-day waiting period at issue there under Maryland law was not a sufficient deprivation to run afoul of the Second Amendment. Discussing the Founders’ use of “infringed” in the Amendment‘s text, the court left the issue undecided but noted the “Second Amendment‘s scrutiny is not exclusively reserved for laws that wholly or effectively prohibit firearm possession.” Id. at *5 n.8.4
This Court, therefore, has no hesitation concluding Plaintiffs’ have sufficiently pled and demonstrated an injury-in-fact. The ban
Because the individual plaintiffs have established Article III standing, and they are members of WVCDL, WVCDL has standing. Outdoor Amusement Bus. Ass‘n, 983 F.3d at 683; see also Firearms Policy Coalition, Inc. et al. v. McCraw, 623 F. Supp.3d 740, 746-47 (N.D. Tex. 2022). Because Plaintiffs have standing to bring suit, Defendants’ Rule 12(b)(1) motion is DENIED on this ground.
B. Plaintiffs’ Constitutional Challenge to 18 U.S.C. § 922(b)(1) and 18 U.S.C. § 922(c)(1)
1. The act of purchasing a firearm is protected by the Second Amendment.
First, the Court must determine whether the act of purchasing a firearm is within the Second Amendment‘s “right to keep and bear arms.” See Bruen, 142 S. Ct. at 2126; see also Maryland Shall Issue, Inc., 2023 WL 8043827, at *5 (“So [Plaintiffs] just need to show that the law regulates a course of conduct that falls within the Amendment‘s plain text, i.e., their ability ‘to possess and carry weapons in case of confrontation.‘” (quoting Heller, 554 U.S. at 592)). If it does, “the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2126. Plaintiffs maintain “[t]he right to keep arms necessarily implies there is a right to acquire arms.” ECF No. 29 at 12.
It appears the Fourth Circuit now agrees. Again, in Maryland Shall Issue, Inc., Judge Richardson observed:
To start, you might note that the Amendment‘s text protects only the right to “keep and bear” arms.
U.S. Const. amend. II . But, on its face, the challenged law says nothing about whether Plaintiffs may “keep” or “bear” handguns. It only restricts Plaintiffs’ ability to “purchase, rent, or receive” them. § 5-117.1(c). How, then, does the law regulate the right to keep and bear arms?The answer is not complicated. If you do not already own a handgun, then the only way to “keep” or “bear” one is to get one, either through sale, rental, or gift. And the
challenged law cuts off all three avenues—at least, for those who do not comply with its terms.
Maryland Shall Issue, Inc., 2023 WL 8043827, at *4 (emphasis in original). The Court notes that Maryland Shall Issue, Inc. “appears” to answer the question presented here as that case focused more on the perceived tension between temporary or permanent bans on possession or acquisition of firearms. Thus, the Court continues its analysis of this question which leads to the same conclusion required under Judge Richardson‘s recent opinion.
At the first step, Bruen requires a court to conduct a “textual analysis” that is “focused on the ‘normal and ordinary’ meaning of the Second Amendment‘s language.” Id. at 2127 (quoting Heller, 554 U.S. at 576-77); see also Maryland Shall Issue, Inc., 2023 WL 8043827, at *3 (“The first question Bruen asks is whether Plaintiffs’ proposed course of conduct is protected by the Second Amendment‘s plain text.” (citation omitted)). This inquiry into the “normal meaning” of the “words and phrases used” is backward looking, focused on what those words meant in 1791 when the
Being a functional prohibition on handgun buyers, the statutes at issue “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
The
Second Amendment accords protection of “the right of the people to keep and bear Arms,” by providing that the right “shall not be infringed.”U.S. Const. Amend. II (emphasis added). TheSecond Amendment is unique in its use of “infringed” for the word does not appear anywhere else in theConstitution . Despite its uniqueness, the term “infringed” has received little attention by scholars or courts. However, Heller took the view that “infringed” “implicitly recognizes the pre-existence of the right.” 554 U.S. at 592. As articulated in Heller, theSecond Amendment does not serve to grant a right but rather preserves a right that the people already possessed. Therefore, to “keep and bear” serves to identify the right protected, not to define the right in the first instance.
The definition of “infringe” further supports the conclusion that the pre-existing right includes a right to purchase. “Infringe” is defined in modern dictionaries as “to encroach upon in a way that violates law or the rights of another.” “Infringe,” Merriam-Webster.com. “Encroach,” in turn, has two definitions: “to enter by gradual steps or by stealth into the possessions or rights of another” and “to advance beyond the usual or proper limits.” “Encroach,” Merriam-Webster.com. Those words have possessed the same meaning since the sixteenth century and the Founders would have understood them in the same way. Not simply protecting the heartland of the preserved right, the Second Amendment protects the environs surrounding it to prevent any encroachment on the core protections. Thus, by virtue of the word “infringed,” theSecond Amendment‘s protective textual embrace includes the conduct necessary to exercise the right (“to keep and bear“) and that, as explained above, includes the right to purchase arms so that one can keep and bear them.
The Court‘s conclusion here is in line with decisions of multiple federal courts of appeal6 which, when ascertaining the textual reach of the
McCraw, 623 F. Supp.3d 740; and, Worth v. Harrington, No. 21-CV-1348, 2023 WL 2745673 (D. Minn. March 31, 2023). As the Northern District of Illinois concluded, “the ban on guns sales and transfers prevents [individuals] from fulfilling . . . the most fundamental pre-requisite of legal gun ownership—that of simple acquisition.” Ill. Ass‘n of Firearms Retailers, 961 F.Supp.2d at 938.
Because “the substance of the challenged laws dictates that they are a functional prohibition on buyers,” Hirschfeld, 5 F.4th at 417, vacated by 14 F.4th 322 (4th Cir. 2021), and the act of purchasing a handgun is within the bounds of the
2. 18-to-20-year-old law abiding citizens are part of “the people” whom the Second Amendment protects.
Next the Court analyzes whether, under the
Initially, and as Bruen requires, the Court starts with the actual text of the
Although the Supreme Court “has not precisely defined” the meaning of “the people” in the
“the people” protected by the
Fourth Amendment , and by theFirst andSecond Amendments , . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Specific to the
Other constitutional provisions lend credence to a broad interpretation of the phrase “the people.” The
Therefore, because neither the
Beyond the
The Court likewise considers the Fourth Circuit‘s guidance7 on this question.
First, nothing in the text of the
Second Amendment limits its application by age. Second, the most analogous rights to theSecond Amendment , those in theFirst andFourth Amendments , similarly contain no age limits. Third, most other constitutional
Notably, since Hirschfeld, the Fourth Circuit marked the significance of the “the people” prong of Bruen‘s analysis. Leaving the specific contours of that definition to another day because the parties had stipulated to it, the Maryland Shall Issue, Inc. court observed “[t]his is not necessarily to say that ‘the people’ is limited to ‘ordinary, law-abiding, adult citizens.’ Post-Bruen, several courts have held that ‘the people’ refers to all Americans, and is not limited to ordinary, law-abiding adult citizens.” Maryland Shall Issue, Inc., 2023 WL 8043827, at *4 n.5 (citing as an example United States v. Silvers, No. 5:18-cr-50-BJB, 2023 WL 3232605, at *5-6 (W.D. Ky. May 3, 2023)).
rights are not age limited. And fourth, the few rights that may not apply to those under 18 or that change by age are not analogous to the
Second Amendment , and most of those rights become applicable at age 18, not 21.
Hirschfeld, 5 F.4th at 421, vacated by 14 F.4th 322. Indeed, the Fourth Circuit found the statutorily prohibited age group of 18-to-20-year-olds are part of “the people” included in the
Considering this analysis, the Court concludes 18-to-20-year-old law abiding citizens are part of “the people” who the
3. The Government cannot meet its burden to show 18 U.S.C. §§ 922(b)(1) or 922(c)(1) are consistent with our Nation‘s historical tradition of firearm regulation.
If the normal and ordinary meaning of the
This necessarily requires the “reasoning by analogy” contemplated by the Bruen Court. Bruen, 142 S. Ct. at 2132. The Government must identify historical firearm regulations that are consistent with the modern, challenged regulation, and courts must decide whether a “historical regulation is a proper analogue” through “a determination of whether the two regulations are ‘relevantly similar.‘” Id. (quoting C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 774 (1993)). Courts applying Bruen must
In the Defendants’ attempt to “justify [the Government‘s] regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation,” they cite to William Blackstone commentaries and other “longstanding” state laws prohibiting sales of firearms to persons under 21. ECF No. 24 at 14. Notably, Defendants argue that, historically, a person‘s age of 21 is the age of majority. Id.; see also ECF No. 24-2, Ex. B. Our Nation‘s history, however, points to a different conclusion.
Defendants spend time collecting state laws proscribing age barriers to the possession and purchase of firearms between the years of 1856 and 1933. ECF No. 24-2, Ex. B. However, “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634-35; see also Bruen, 142 S. Ct. at 2137 (“the scope of the protection applicable to the Federal Government . . . is pegged to the public understanding of the right when the
At the time of the ratification of the
In 1792, the United States Congress “specified 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.‘” Heller, 554 U.S. at 596 (quoting
[t]he
Militia Act further required every member of the militia to “provide himself with a good musket or firelock . . . or with a good rifle.” Id. Over the next few years, every state revised its existing militia laws to conform with the federal statute. In each of these state statutes, the states adopted a militia age of 18 and required militiamen to arm themselves.
Fraser, 2023 WL 3355339, at *17 (quoting
Following briefing, the Government filed a Notice of Supplemental Authority [ECF No. 37] on March 9, 2023, alerting the Court to the Eleventh Circuit‘s decision issued that same day in National Rifle Association v. Bondi, 61 F.4th 1317 (11th Cir. 2023). There, the Eleventh Circuit found a Florida statute limiting the ability of 18-to-20-year-olds to purchase firearms did not violate the
Regardless, the Bondi decision was vacated on July 14, 2023, when the Eleventh Circuit granted a petition for rehearing and decided to rehear the case en banc. 72 F.4th 1346 (Mem.) (11th Cir. 2023). Thus, the authority to which Defendants point the Court is no longer “authority.” To date, Defendants have inexplicably failed to update or withdraw their Notice of Supplemental Authority despite the fact that the Eleventh Circuit opinion—published over fourth months ago—vacates the Bondi panel‘s opinion and dedicates significant time in their papers discounting the Fourth Circuit‘s Hirschfeld opinion for the same reason.
The core issue the Court must answer under Bruen remains whether our Nation‘s history and tradition contains “analogous” restrictions on the ability of 18-to-20-year-olds to purchase firearms. Bruen, 142 S. Ct. at 2133. Defendants have not presented any evidence of age-based restrictions on the purchase or sale of firearms from before or at the Founding or during the Early Republic. Defendants have likewise failed to offer evidence of similar regulation between then and 1791 or in a relevant timeframe thereafter. For that reason alone, Defendants have failed to meet the burden imposed by Bruen. The Court once again finds Judge Payne‘s reasoning highly persuasive.
Finally, the lack of analogous evidence of Founding-era regulations demonstrates
that the statutes and regulations at issue are inconsistent with the Second Amendment . Since time immemorial, teenagers have been, well, teenagers. The “general societal problem” of teenage impetuousness and rashness far proceeded the Founding. Bruen, 142 S.Ct. at 2131. Yet, that fact notwithstanding, the Government has not demonstrated that the Founders dealt with this problem in a “distinctly similar” way to the statutes and regulations at issue. Id. The lack of analogous regulations permits a finding that the Founders considered age-based regulations on the purchase of firearms to circumscribe the right to keep and bear arms confirmed by theSecond Amendment .
Fraser, 2023 WL 3355339, at *21. More succinctly stated, “[w]hile some gun regulations existed at the Founding, there were no regulations restricting minors’ ability to possess or purchase weapons until two states adopted such laws in 1856.” Hirschfeld, 5 F.4th at 437.10
In summary, because Plaintiffs’ conduct—the purchase of handguns—“fall[s] [within] the
V. CONCLUSION
For the reasons discussed, the Court DENIES Defendant‘s Motion to Dismiss [ECF No. 23] and GRANTS Plaintiffs’ Motion for Summary Judgment [ECF No. 28]. Defendants are ENJOINED from
enforcing
Pursuant to
It is so ORDERED.
Pursuant to
DATED: December 1, 2023
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA