JOSHUA CLAY MCCOY; TYLER DALTON MCGRATH; IAN FLETCHER SHACKLEY; JUSTIN TIMOTHY FRASER, on behalf of themselves and all others similarly situated as a Class v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; STEVEN DETTELBACH, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; PAMELA JO BONDI, in her official capacity as Attorney General of the United States
No. 23-2085
United States Court of Appeals for the Fourth Circuit
June 18, 2025
PUBLISHED. Argued: January 30, 2025.
GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; BRADY CENTER TO PREVENT GUN VIOLENCE; ILLINOIS; ARIZONA; CALIFORNIA; COLORADO; CONNECTICUT; DELAWARE; DISTRICT OF COLUMBIA; HAWAII; MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA; NEVADA; NEW JERSEY; NEW YORK; NORTH CAROLINA; OREGON; PENNSYLVANIA; RHODE ISLAND; VERMONT; WASHINGTON, Amici Supporting Appellants.
Before WILKINSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Reversed and remanded with directions to
ARGUED: Courtney Lynn Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Elliott Michael Harding, HARDING COUNSEL, PLLC, Charlottesville, Virginia, for Appellees. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Mark B. Stern, Michael S. Raab, Abby C. Wright, Steven H. Hazel, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellants. Beatriz L. Albornoz, SULLIVAN & CROMWELL LLP, Washington, D.C., for Amici Giffords Law Center to Prevent Gun Violence and Brady Center to Prevent Gun Violence. Esther Sanchez-Gomez, Kelly Percival, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, San Francisco, California; Robert A. Sacks, Leonid Traps, Sophie A. Kivett, New York, New York, Elizabeth A. Rose, Madeline B. Jenks, Cason J.B. Reily, SULLIVAN & CROMWELL LLP, Washington, D.C., for Amicus Giffords Law Center to Prevent Gun Violence. Douglas N. Letter, Shira Lauren Feldman, BRADY CENTER TO PREVENT GUN VIOLENCE, Washington, D.C., for Amicus Brady Center to Prevent Gun Violence. Kwame Raoul, Attorney General, Jane Elinor Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus State of Illinois. Kris Mayes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona. Rob Bonta, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, Sacramento, California, for Amicus State of California. Philip J. Weiser, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF COLORADO, Denver, Colorado, for Amicus State of Colorado. Kathleen Jennings, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE, Wilmington, Delaware, for Amicus State of Delaware. Anne E. Lopez, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAI‘I, Honolulu, Hawai‘i, for Amicus State of Hawai‘i. Andrea Joy Campbell, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts. Keith Ellison, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MINNESOTA, St. Paul, Minnesota, for Amicus State of Minnesota. Matthew J. Platkin, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, Trenton, New Jersey, for Amicus State of New Jersey. William Tong, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Brian L. Schwalb, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Washington, D.C., for Amicus District of Columbia. Anthony G. Brown, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of Maryland. Dana Nessel, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Aaron D. Ford, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEVADA, Carson City, Nevada, for Amicus State of Nevada. Letitia James, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, New York, New York, for Amicus State of New York. Josh Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Amicus State of North Carolina. Michelle A. Henry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF PENNSYLVANIA, Harrisburg, Pennsylvania, for Amicus Commonwealth of Pennsylvania. Charity R. Clark, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont, for Amicus State of Vermont. Ellen F. Rosenblum, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon, for Amicus State of Oregon. Peter F. Neronha, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF RHODE ISLAND, Providence, Rhode Island, for Amicus State of Rhode Island. Robert W. Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington, for Amicus State of Washington.
WILKINSON, Circuit Judge:
We hold that it does not. From English common law to America‘s founding and beyond, our regulatory tradition has permitted restrictions on the sale of firearms to individuals under the age of 21. Section
I.
A.
Federal law prohibits any person from “engag[ing] in the business of importing, manufacturing, or dealing in firearms” without a Federal Firearms License.
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.
When it comes to 18- to 20-year-olds,
Section
Second, the provision regulates only the commercial sale of firearms. It applies only to FFLs, who are sellers “engage[d] in the business of . . . dealing in firearms.”
Third, when it comes to 18- to 20-year-olds,
B.
Appellees are four 18- to 20-year-olds who wish to buy a handgun from an FFL but cannot because of
The district court granted appellees’ motion for summary judgment. Applying the text, history, and tradition test outlined in New York State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022), the court first determined that “the Second Amendment‘s protections apply to 18-to-20-year-olds” and that “the right to purchase a gun falls within the Second Amendment‘s plain text.” Fraser v. ATF, 672 F. Supp. 3d 118, 130, 136 (E.D. Va. 2023). It then concluded that the government failed to demonstrate a relevant tradition of firearm regulation that could support the constitutionality of
The government timely appealed. It argues that the district court erred in concluding that
II.
The Second Amendment reads: “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.”
At step one, we must determine whether “the Second Amendment‘s plain text covers [the] individual‘s conduct.” Bruen, 597 U.S. at 17. If it does, “the Constitution presumptively protects that conduct” and we must proceed to step two. Id.
At step two, the burden shifts to the government to “demonstrate that the [challenged] regulation is consistent with this Nation‘s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation‘s historical tradition may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.‘” Bruen, 597 U.S. at 17 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Determining whether the challenged regulation comports with our country‘s regulatory tradition involves “analogical reasoning.” Bruen, 597 U.S. at 28. The key question is “whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” United States v. Rahimi, 602 U.S. 680, 692 (2024) (quoting Bruen, 597 U.S. at 29). “How and why the regulations burden” Second Amendment rights are “central to this inquiry.” Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692. Put differently, we must ask whether the “modern and historical regulations impose a comparable burden” on the right and whether “that burden is comparably justified.” Bruen, 597 U.S. at 29.
Importantly, the challenged law need not “precisely match its historical precursors.” Rahimi, 602 U.S. at 692. As the Supreme Court has explained, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” not applications of those principles found in particular laws. Id. (emphasis added); see also id. at 740 (Barrett, J., concurring) (“‘Analogical reasoning’ under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold.“). That is why the government must distill a relevant principle from a “historical analogue,” but it need not unearth a “dead ringer” or “historical twin.” Bruen, 597 U.S. at 30.
When discerning a relevant principle from our regulatory tradition, we are mindful that “not all history is created equal.” Bruen, 597 U.S. at 34. “‘Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791.” Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008)). A regulatory practice from around that date, therefore, is more likely to be consistent with the principles of the Second Amendment than a practice that existed long before or emerged long after the Amendment‘s ratification. See id. at 34–36.
That is not to say that pre- or post-enactment history is without value. If a founding-era practice stemmed from a “long, unbroken line of common-law precedent,” that is strong evidence that the practice was part of a deeply rooted tradition and thus a “part of our law.” Bruen, 597 U.S. at 35. Likewise, a founding-era practice that gave rise to an enduring tradition is more likely to reflect the widespread understanding of the founding generation than a practice that was short-lived and may have been an outlier. See id. at 37, 66 n.28.
III.
Starting with Bruen‘s first step, we look to the text of the Second Amendment. As Heller made clear, handguns are “Arms” because they are “the quintessential self-defense weapon.” Heller, 554 U.S. at 629. And the parties do not dispute that appellees’ intended action—purchasing a handgun for lawful purposes—is part of the “conduct” protected by the Amendment. Bruen, 597 U.S. at 31–32. The parties do seem to dispute, however, whether individuals between the ages of 18 and 20 are part of “the people” protected by the Second Amendment. Like the Eleventh Circuit, we assume without deciding that appellees are part of “the people” and are therefore covered by the Amendment‘s text. See NRA v. Bondi, 2025 WL 815734, at *15 (11th Cir. Mar. 14, 2025) (en banc).
IV.
Turning to the narrower focus of step two, we conclude that the burden
A.
At English common law, a person under the age of 21 was considered an “infant” for purposes of contracting, and infants were not bound by their contracts. See EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF ENGLAND 171–72 (1628). As Blackstone put it in his influential eighteenth-century treatise, “an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *453.
The common law understanding of contracting was broad. Like today, contracts could be “express or implied.” 2 BLACKSTONE, supra, at *443. They could also be “executed,” as when two parties make an exchange “immediately,” or “executory,” as when two parties agree to make an exchange later. Id.; see also 1 SAMUEL COMYN, A TREATISE OF THE LAW RELATIVE TO CONTRACTS AND AGREEMENTS NOT UNDER SEAL 151 (1809).
Like many common law principles, the infancy doctrine made its way across the Atlantic, and early American courts routinely applied it. See, e.g., Pool v. Pratt, 1 D. Chip. 253, 253 (Vt. 1814) (“It is an ancient doctrine, as old as the common law, that an infant shall not, in general be bound by his contract; he is under an incapacity to bind himself by his contract.“); Collins’ Lessee v. Rigua, 2 Del. Cas. 78, 79 (Com. Pl. 1797); Evans v. Terry, 3 S.C.L. (1 Brev.) 80, 80 n.b1 (Const. Ct. App. 1802); Johnson v. Van Doren, 2 N.J.L. 372, 373 (N.J. 1808); Beeler v. Young, 4 Ky. (1 Bibb.) 519, 520 (1809); Commonwealth v. Murray, 4 Binn. 487, 491 (Pa. 1812). Indeed, by the time of the founding, an infant‘s inability to contract was a well understood and engrained principle of American law. See 1 ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 215 (1795) (noting that contracts with infants are generally unenforceable); 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 191 (1827) (stating that “until the infant has attained the age of twenty-one
The infancy doctrine imposed a severe burden on a minor‘s ability to purchase goods, including firearms, during the founding era. Eighteenth-century America was a credit economy. From the “account books as survive, it is evident that very little cash changed hands,” “purchasers who paid in cash were rare,” and because of the “shortage of a circulating medium,” “credit rather than cash payment was the rule everywhere.” CARL BRIDENBAUGH, THE COLONIAL CRAFTSMAN 153–54 (1961). Under a practice known as “book credit,” merchants recorded promises of future payment from their customers in account books. David T. Flynn, Credit in the Colonial American Economy, ECON. HIST. ASS‘N (2008). And since infants could “not be held liable for failing to uphold their side of a contract over goods,” extending credit to minors was a “considerable risk.” HOLLY BREWER, BY BIRTH OR CONSENT: CHILDREN, LAW, AND THE ANGLO-AMERICAN REVOLUTION IN AUTHORITY 265 (2005). Put simply, “whoever entered into a contract with an infant could lose substantial amounts of money” because courts refused to hold minors accountable for payment. Id. at 270; see also, e.g., Counts v. Bates, 16 S.C.L. (Harp.) 464, 467 (Const. Ct. App. 1824) (holding that infant can keep a horse without paying credit amount owed). That “high risk made infants effectively unable to” purchase goods on credit. See BREWER, supra, at 270.
Nor could minors rely on buying a firearm with cash. First, coin was scarce during the founding era. See BRIDENBAUGH, supra, at 153–54. In addition, infants “lacked disposable income” because “they either worked for their parents for no wages, or any wages earned belonged to their parents.” Bondi, 2025 WL 815734, at *7 (citing Robert J. Spitzer, Historical Weapons Restrictions on Minors, 76 RUTGERS U. L.R. 101, 108 (2024); 1 BLACKSTONE, supra, at *453). Furthermore, even if an infant had enough coin to buy a gun, merchants would have been unwilling to sell because they bore the risk that the minor would rescind the transaction and be entitled to a full refund under the infancy contract doctrine. See, e.g., Riley v. Mallory, 33 Conn. 201 (1866) (holding that seller of a firearm was required to give a full refund to minor who insisted on returning used gun).
In arguing that the infancy doctrine did not apply to purchases of firearms, appellees point us to the “necessaries” exception. See Oral Arg. at 35:34. It is true that at English common law an infant could be bound by a contract for necessaries. But by the time of the founding, courts “began to view necessaries in very narrow terms.” BREWER, supra, at 266. If an “infant live[d] with his father or guardian,” for example, he could not “bind himself even for necessaries.” 2 KENT, supra, at 196. And even where the necessaries exception did apply, it covered “victuals, clothing, medical aid, and ‘good teaching or instruction.‘” Id. There is no evidence that the exception was ever extended to firearms. Indeed, at least one court explicitly held that it did not apply to “pistols.” Saunders Glover & Co. v. Ott‘s Adm‘r, 12 S.C.L. (1 McCord) 572, 572 (Const. Ct. App. 1822).
Appellees next argue that “infancy” in contract doctrine was tethered not to the age of 21 but to a generally applicable “age of majority” that changes over time. Appellees derive this general age of majority by considering the critical mass of age restrictions for important civic activities, such as the age to vote and to serve on juries. They then observe that while at the founding the age threshold for these civic activities was 21, today it is 18. From this appellees conclude that, even if our Nation‘s
The problem is that “infancy” in contract law was not tied to a dynamic, generally applicable age of majority. The definition of an “infant” at common law varied with the nature of the activity. See SAMUEL CARTER, THE INFANTS LAWYER: OR, THE LAW (ANCIENT AND MODERN) RELATING TO INFANTS 44 (2d ed. 1712) (describing “the Several Ages of Infants in the Law“). For example, the age of consent to marry ranged from twelve to fourteen and the age of criminal responsibility was fourteen. Id. at 45, 47. Sometimes the age of infancy even varied within an area of law. An individual could execute a will “as to Goods and Chattels” at eighteen “but not as to Lands” until he was twenty one. Id. at 49. For contracting it was determined that a person was “an infant till the age of 21 years” because such individuals lacked “judgment and discretion in their contracts and transactions with others” and it was therefore necessary to protect them from “persons of more years and experience.” 1 COMYN, supra, at 148.
In sum, the infancy doctrine demonstrates that there was an early American tradition of burdening the ability of 18- to 20-year-olds to purchase goods, including firearms. We now hold that
With respect to “how,” the infancy doctrine and
To be sure, the risk sellers face under
As for “why,”
Because
B.
The district court held, and appellees here argue, that the Militia Act of 1792
We disagree for two reasons. One, the Militia Act did not mandate 18 as the universal age of militia eligibility. It explicitly allowed states to exempt individuals from militia service “notwithstanding their being above the age of eighteen.” Militia Act, § 2, 1 Stat. 271, 272 (1792). This reflected the fact that the age of enrollment fluctuated a great deal around the founding. Many state laws set the age of militia service at 21, for example.2 So even if the Militia Act is evidence of some constitutional right to purchase firearms, it cannot stand for the proposition that such a right vested firmly at 18.
Two, any constitutional right derived from the Militia Act would not conflict with
The 1792 Militia Act therefore does nothing to undermine our analysis regarding the founding-era tradition of restricting the sale of firearms to infants.
C.
Finally, our analysis is reinforced by later nineteenth-century history, which, when consistent with founding-era history, is helpful “confirmation” of original meaning. See Bruen, 597 U.S. at 37, 66 & n.28. Beginning in 1856, at least twenty jurisdictions enacted laws criminalizing the sale of firearms, often handguns specifically, to individuals under the age of 21.3 An illustrative example is Indiana‘s
Like the infancy contract doctrine, these nineteenth-century laws burdened 18- to 20-year-olds’ ability to purchase handguns by making it far less likely that merchants would sell to them. And these laws were enacted for a familiar reason: a concern that youths lacked the maturity and judgment to responsibly buy their own pistols. See PATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO CONCEALED CARRY 156, 404–05 (2019) (collecting contemporaneous sources).
These nineteenth-century laws also support our understanding that restrictions specific to handguns fall within the tradition we have identified. Because handgun ownership was not prevalent until the mid-nineteenth century, it is not surprising that the government cannot point us to a “historical twin” from the founding era. But as soon as handguns came on the scene, legislatures quickly prohibited their sale to minors, consistent with our Nation‘s regulatory tradition of restricting firearm sales to infants. These nineteenth-century laws were celebrated by the public and went largely unchallenged. See CHARLES, supra, at 156. As far as we can tell, the Tennessee Supreme Court was the only court to consider the constitutionality of these laws, and it held that they were constitutional. See State v. Callicutt, 69 Tenn. 714, 716–17 (1878).
Last, it is not lost upon us that in modern times “[m]any states (and the District of Columbia) proscribe or restrict the sale of handguns to persons under 21.” NRA v. ATF, 700 F.3d 185, 190 n.4 (5th Cir. 2012). These widespread restrictions on handgun sales to those under 21 are testament to the continuity of the historical tradition that we have identified.
Moreover, the New York law struck down in Bruen and the D.C. law invalidated in Heller were both identified as outliers by the Supreme Court. See Bruen, 597 U.S. at 79 (Kavanaugh, J., joined by Roberts, C.J., concurring) (“[T]he Court correctly holds that New York‘s outlier ‘may-issue’ licensing regime for carrying handguns for self-defense violates the Second Amendment.“); id. at 78 (Alito, J., concurring) (“The District of Columbia law [in Heller] was an extreme outlier.“); Heller, 554 U.S. at 629 (noting that “[f]ew laws in the history of our Nation have come close to the severe restriction of the District‘s handgun ban“). The law before us is anything but. The only “outlier” would be our ruling unconstitutional a federal statute that is so consonant with our historical and contemporary tradition. If we were to hold that it is beyond the power of a legislature to bar an 18-year-old from purchasing a handgun, why stop at 18? What principle of law would allow a legislature to prohibit
V.
Declaring an Act of Congress to be unconstitutional is a big step for a court to take. Just as the Second Amendment protects the right of the people to keep and bear arms, the democratic process protects the right of the people to the blessings of self-government. Bruen and Rahimi acknowledge the latter right. See Bruen, 597 U.S. at 30 (noting that history and tradition is not a “regulatory straightjacket“); Rahimi, 602 U.S. at 691 (emphasizing that Bruen did not transform the Second Amendment into “a law trapped in amber“). It seems clear from the Court‘s decisions that individual and democratic rights do not extinguish one another in this important area and, further, that it is not impermissible for lower courts to attempt some demonstration of respect for both.
Basic respect for traditional democratic authority is a modest ask. Our holding here simply acknowledges that legislatures may enact these sorts of age restrictions, not that they must. If
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We have done our best to faithfully apply the analytical framework set out in Bruen. There plainly exists a robust tradition that supports the constitutionality of
597 U.S. at 80-81 (Kavanaugh, J., joined by Roberts, C.J., concurring); Rahimi, 602 U.S. at 735 (Kavanaugh, J., concurring) (calling these laws “traditional exceptions to the right“). We have no reason or right to call such expressions into question. By conditioning the sale of handguns on a buyer‘s age,
For the foregoing reasons, the district court‘s judgment is reversed, and the case is remanded with instructions to dismiss it.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS
TOBY HEYTENS, Circuit Judge, concurring:
Judge Wilkinson‘s opinion for the Court explains why the plaintiffs’ arguments fail on their own terms. I write to highlight another—and, to my mind, fatal—flaw.
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Do 16- and 17-year-olds have a constitutional right to buy handguns? To be sure,
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The plaintiffs’ arguments have a facile appeal. The
So what about today‘s 16- and 17-year-olds? After all, 16- and 17-year-olds also served in Founding-era militias, and they were not subject to any Founding-era firearm sales restrictions based on age. Indeed, none of the arguments in the previous paragraph are limited to those 18 and older. Thus, any decision accepting the plaintiffs’ logic would suggest that—any ipse dixit aside—today‘s high school juniors also have a constitutionally protected right to buy handguns.
The plaintiffs respond that today‘s society has come to treat 18 as the critical age for most (though, of course, not all) purposes. That argument chases its own tail. For example, the plaintiffs point to the
True, the Supreme Court has treated 18 as a dividing line for other constitutional provisions that do not mention age—specifically, the
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For
QUATTLEBAUM, Circuit Judge, dissenting:
Plaintiffs—18- to 20-year-olds who want to buy handguns—challenge federal laws prohibiting licensed firearms dealers from selling those weapons to them. They argue the federal handgun purchase ban violates their
I recognize that to many, banning sales of handguns to those under 21 makes good sense. I appreciate that sentiment, especially during a time when gun violence is a problem in our county. But that is a policy argument. As judges, we interpret law rather than make policy. Under Supreme Court precedent, this federal handgun purchase ban violates the
I. BACKGROUND
A. The Second Amendment and the Federal Handgun Purchase Ban
The
Plaintiffs—18- to 20-year-olds—challenge several federal statutes. They contest the validity of two provisions of the
B. Procedural History
Plaintiffs sued “on behalf of other similarly situated members of a class“: all 18- to 20-year-olds. Fraser v. ATF, 672 F. Supp. 3d 118, 122 (E.D. Va. 2023). Before plaintiffs moved for class certification, the parties agreed to proceed with dispositive motions. The government moved to dismiss, and plaintiffs moved for summary judgment. The district court granted plaintiffs’ motion for summary judgment. Applying the analytical framework from Bruen, the court concluded the handgun purchase ban violated the
II. THE SECOND AMENDMENT
In District of Columbia v. Heller, the Supreme Court interpreted the
In United States v. Rahimi, the Court clarified that
For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a new law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.”
Id. (quoting Bruen, 597 U.S. at 30). This two-step inquiry frames our analysis of the federal handgun purchase ban.
A. The Second Amendment‘s Text
This case presents two questions at Bruen‘s first step—whether plaintiffs are part of “the people” and whether the
1. “The People”
First, are 18- to 20-year-olds part of “the people” protected by the
24-782, 2025 WL 1151242, at *1 (U.S. April 21, 2025) (mem).4 No federal court of appeals has found “the
In Heller, the Supreme Court described “the people” as referring “to all members of the political community, not an unspecified subset.” 554 U.S. at 580. The Heller Court also referenced the Supreme Court‘s earlier description that “‘the people’ protected by the
The government hints that 18- to 20-year-olds are excluded from “the people” based on the term‘s meaning in 1791. And amicus flat out makes that argument. See Everytown Amicus Curiae Br., Brown v. ATF, Case No. 23-2275 (4th Cir. Jan. 29, 2024), ECF No. 24 at 4-5. The argument relies on the fact that during the late eighteenth century, 18- to 20-year-olds were minors who could not vote. Since they could not vote, amicus reasons, they are not part of “the people” and thus are not protected by the
The proper inquiry is to use the principle of the relevant national or political community but apply it today. See Heller, 554 U.S. at 580-82; see also Rahimi, 602 U.S. at 692 (noting that the Court would be “mistaken” to “apply[] the protections of the right only to muskets and sabers“). Under that approach, just as the
2. “Keep and Bear”
Second, does “the plain text of the
It is correct that the Amendment‘s plain text does not contain the word “purchase.” It uses the phrase “keep and bear Arms.”
The other circuits that have addressed this question have acknowledged the
That makes sense. If you cannot buy a handgun, it‘s pretty hard to keep and bear it. True, a friend or relative might give you a handgun. But are the
Also, applying the
3. Conditions and Qualifications on Commercial Sale
The government makes another argument that the purchase ban falls outside
But this argument conflicts with our precedent. A condition or qualification on the sale of arms is a burden on the seller—“a hoop someone must jump through to sell a gun.” Hirschfeld, 5 F.4th at 416; see also United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016). This really isn‘t a burden on the seller though. It‘s a burden on would-be buyers.
And even if we were to look past that distinction, some burdens go too far. A burden may be “so prohibitive as to turn this condition or qualification into a functional prohibition.” Hosford, 843 F.3d at 166. For example, in Hosford, we upheld a requirement that firearm dealers obtain a license as a condition and qualification on commercial sale; but only because it did not rise to a functional prohibition on the purchaser‘s right to keep and bear arms. Id. at 166-67.
Following Hosford, a sales ban that functionally prohibits the right to keep and bear arms is not a valid condition or qualification on sale. That is exactly what the federal handgun purchase ban does. While formally aimed at the seller,
I acknowledge not all agree. The Tenth Circuit found a similar state restriction constituted a presumptively lawful condition on the commercial sale of arms. See Polis, 121 F.4th at 118. It reasoned that the state ban is a “narrow, objective, and definite standard that applies uniformly to all potential sellers and buyers.” Polis, 121 F.4th at 123. I agree that such a ban would be objective and definite. But that alone cannot make it constitutional. Bans on selling to those over 25 would also be objective and definite. So would bans on selling to women and Black people. They would also be unconstitutional.
The federal handgun purchase ban, however, is neither narrow nor uniform. Admittedly, it does not preclude possessing a handgun and does not apply to the sale of other arms like rifles or shotguns. But it completely prohibits a category of “the people” from acquiring the quintessential self-defense firearm through ordinary commerce. And it singles out 18- to 20-year-olds for heightened regulation.
For all these reasons, the government‘s step one arguments fail. Because the federal handgun purchase ban prevents a subset of “the people” from purchasing firearms from the primary source, the
B. Principles Underpinning Our Regulatory Tradition
To justify the federal handgun purchase ban, the government must show its “consisten[cy] with this Nation‘s historical tradition of firearm regulation.” Bruen, 597 U.S. at 34. As noted earlier, while we need not find a “dead ringer” or “historical twin,” we must consider “whether the challenged regulation is consistent
Considering the relevant historical evidence, I cannot agree with the majority. The government has failed to meet its burden.
1. Founding-Era Evidence
“[W]hen it comes to interpreting the Constitution, not all history is created equal.” Bruen, 597 U.S. at 34. “The
a. Contract Law Principles
The majority relies on founding-era contract law. It explains, correctly, that contracts entered by people under 21 were voidable by the minor at common law. See Maj. Op. at 10-13; see also Nat‘l Rifle Assoc., 133 F.4th at 1117-18. Then, the majority reasons this common law contracting principle is sufficiently similar to the federal handgun purchase ban at issue here. See Maj. Op. at 14-15. Both, according to the majority, (1) increase the difficulty for 18- to 20-year-olds to purchase firearms (the “how“) and (2) are based on a common rationale—people of that age group lack the judgment of adults (the “why“). Because of the similarities, the majority concludes that the purchase ban does not offend the
For several reasons, I disagree.
First, the contract principle relied on by the majority does not share a comparable “how” and “why” with the federal handgun purchase ban. As to “how,” founding-era contract law did not ban the sale of guns to 18- to 20-year-olds. In fact, it did not ban anything. It gave minors the benefit of voiding a contract they had entered. See Nat‘l Rifle Association, 133 F.4th at 1165-67 (Branch, J., dissenting) (noting a “long recognized [] difference between forming a contract and that same contract later being declared unenforceable“). It did not impose any governmental burden on contracts.
The majority attempts to shoehorn the minor‘s ability to void a contract into a governmental burden by considering what the practical impact of the voidability principle may have been. Perhaps a seller of guns would hesitate to enter a contract to sell something to an 18-year-old. But any voluntary hesitancy is not a governmental regulation of such sales. It comes from a different source. Any burden imposed on the right to buy a handgun comes not from the government, but from the seller‘s economic choices.
And the burdens are not similar either. Under the voidability principle, the only “risk” generated by the voidability principle was the possibility the 18-year-old might “rescind the transaction and be entitled to a full refund.” Maj. Op. at 12. In a worst-case scenario, the merchant returned the money and got the gun back, losing only the time he took to sell the gun to the 18-year-old. Refunds are a standard part of commercial life with benefits to
So is the “why.” The contract principle “results from the inability of infants to take care of themselves.” 2 James Kent, Commentaries on American Law 191 (O. Halsted ed., 1827). The handgun purchase ban was intended to bar “emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior” from obtaining firearms.
Maybe in the future, the Supreme Court will permit more flexibility in the historical evidence courts can consider when reviewing modern firearm regulations. But we apply current law, rather than predict the law‘s evolution. See Agostini v. Felton, 521 U.S. 203, 237 (1997); see also Ohio v. Becerra, 87 F.4th 759, 770 (6th Cir. 2023) (“In other words, we apply directly applicable Supreme Court precedent as it currently stands, without projecting where it may be headed.“). Wayne Gretzky, perhaps the greatest hockey player of all time, owed much of his success to his ability to anticipate. He said, “I skate to where the puck is going to be, not where it‘s been.” John Robert Colombo, Colombo‘s New Canadian Quotations 162 (1987).6 While that worked for Gretzky, it doesn‘t work for us. Our job is to stay where the puck is now. That means we follow the Supreme Court‘s current jurisprudence. When we do so, the common law contract principle that permitted minors to void contracts does not support the constitutionality of the federal government banning 18- to 20-year-olds from buying handguns.
Second, the majority points to no evidence that the contract principle limited the ability of 18- to 20-year-olds to acquire guns in the founding era. It declares that age group lacked access to cash and would only be able to purchase with credit. See Maj. Op. at 11-12. And it declares that sellers would not sell guns to minors on credit because the contracts could be voided.
Money, Barter and Bookkeeping, 31 Accounting Historians J. 129, 133-36 (2004). Finally, rather than avoiding selling to minors altogether, isn‘t it possible that sellers might have negotiated collateral or a guarantee in selling a gun to a minor? Ultimately, the majority rests its decisions on economic speculation, not historical evidence.
In fact, we need not speculate about which of these possibilities is more likely
the contract principle expresses a relevantly similar historical tradition of firearm regulation.
b. Minority Status
The government marshals other founding-era evidence of 18- to 20-year-olds’ minority status. Blackstone described the age of majority as 21. 1 William Blackstone, Commentaries *451. As a result, founding-era legislatures prohibited persons under 21 from marrying without parental approval. See 4 Statutes at Large of Pennsylvania from 1682 to 1801, at 153 (James T. Mitchell & Henry Flanders eds. 1897) (citing a 1729 act). Persons under 21 could not vote until the ratification of the
But this evidence only shows that some rights at the founding extended to those under 21 and some didn‘t. That‘s because, as already discussed, the
Also, this evidence about minority status is not evidence of firearm regulations. At most, it is evidence about how some general principles might apply to firearms. Thus, for the same reasons discussed in the previous analysis of contract law principles, this minority status evidence is not the type of evidence that Bruen and Rahimi require to overcome the presumption of unconstitutionality.
c. Constables
The government also points to a South Carolina treatise barring “infants” from serving as constables—deputized law enforcement officers—as evidence that 18- to 20-year-olds lacked access to firearms. See John Faucheraud Grimke, The South-Carolina Justice of Peace 117-18 (3d ed. 1810) (originally published in 1788). According to the government, since minors could not be constables and constables carried firearms, the exclusion of minors shows that they lacked access to guns. The government then claims the constable regulation is based on the same reasoning as the federal handgun purchase ban—that minors lack the judgment to carry firearms.
This argument is remarkably weak. First, the treatise says nothing about the ability of minors to acquire firearms. Second, it also prohibits “[j]ustices of the peace, clergyman, attornies, infants, lawyers, madmen, physicians, idiots, poor, old and sick persons” from serving as constables. Id. at 117. There can be no credible argument that others ineligible to be constables—like clergyman, lawyers and physicians—lack the judgment to carry guns.9 As a result, the constable restriction cannot share the same “why” as the federal handgun purchase ban; it‘s not excluding persons because of their poor judgment when carrying firearms.
Nor does it share the same “how“—it does not prohibit “infants” from purchasing or possessing firearms, but rather excludes them from performing constable duty.10 This source does not provide a relevantly similar principle justifying the handgun purchase ban.
d. The Militia Act
In contrast to the evidence relied on by the majority and the government, the Militia Act of 1792—enacted shortly after the
The government and the majority offer several retorts. None are persuasive.
First, according to the majority, the Militia Act of 1792 merely required a militiaman to “provide himself” with a musket or firelock but did not require him to “purchase” one. Maj. Op. at 16. But the “provide himself” language applied to all militiamen, not just 18- to 20-year-olds. Given that, the best reading of the Act indicates all militiamen, including 18- to 20-year-olds, had the ability to acquire firearms. Congress could not have expected all 18- to 20-year-old militiamen across the entire country to obtain firearms by gift.
Second, the majority and government point out that some states raised the militia age above 21. True, Virginia did so in 1738 before returning it to 18 or less in 1757—in the midst of the French & Indian War. See 5 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 16 (1823); see also David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights of Young Adults, 43 S. ILL. U. L.J. 495, 579 (2019). And New Jersey set a militia age of 21 for an expedition of 500 men to Canada during King George‘s War. See 3 Bernard Bush, Laws of the Royal Colony of New Jersey, at 15, 17 (1980); see also Kopel & Greenlee, supra, at 536 (discussing this 1746 New Jersey act); Hirschfeld, 5 F.4th at 431-33 (discussing Virginia, New Jersey and Pennsylvania statutes). But these isolated examples were withdrawn decades before the
Third, the government and the majority believe that parental provisioning statutes imply minors could not buy firearms. And it is true that an 1810 Massachusetts act, as one example, required parents to equip minor militiamen “with the arms and equipments, required by this act.” Act of Mar. 6, 1810, ch. 107, sec. 28, 1810 Mass. Acts 157, 176. I agree that meant parents had to provide a “good musket” if the minor didn‘t have one. Id. sec. 1, 1810 Mass. Acts 151, 152. But that does not establish that minors could not acquire guns themselves. In fact, under the same act, parents also had to provide “two spare flints, and a knapsack, a pouch with a box therein, to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball.” Id. Surely an 18-year-old could buy a “knapsack” and a “pouch” in 1810, and yet the law required parents to provide them. Considering the state militia laws as a
The government makes two additional arguments that, for good reason, the majority steers clear of. The government points to militia parental consent statutes. A 1755 Pennsylvania act required parental approval for persons less than 21 to join the militia. But it applied for only one year at the start of the French & Indian War. See 5 Statutes at Large of Pennsylvania from 1682 to 1801, at 200 (James T. Mitchell & Henry Flanders eds. 1898); see also Kopel & Greenlee, supra, at 561. A 1746 New Jersey act had a similar parental consent requirement and was also enacted during wartime. See Bush, supra, at 15, 17; see also Kopel & Greenlee, supra, at 536; Hirschfeld, 5 F.4th at 433-34 (discussing a nineteenth-century New York statute). These consent statutes are hardly sufficient to overcome the strong, contemporaneous evidence from the Militia Act that minors had access to guns during the founding era.
Finally, the government argues the Militia Act should not be considered because Heller detached the
In sum, none of the evidence marshaled by the majority or the government demonstrates the federal handgun purchase ban‘s consistency with our Nation‘s historical tradition of firearm regulation so as to overcome the presumption of unconstitutionality. In contrast, the Militia Act of 1792 is “good circumstantial evidence of the public understanding at the Second Amendment‘s ratification as to whether 18-to-20-year-olds could be armed.” Lara, 125 F.4th at 444.11
In concurrence, Judge Heytens criticizes McCoy‘s reliance on militia statutes because the logical extension of McCoy‘s position would be the
First, because this case does not present the issue, the record before us does not sufficiently address a historical tradition of restricting 16- and 17-year-olds’ access to firearms. But as we stated in Hirschfeld, “the history of the right to keep and bear arms, including militia laws, may well permit drawing the line at 18.” 5 F.4th at 422 n.13. After all, within one year of the
Second, even if the evidence was more persuasive, Bruen does not permit such consequential reasoning. It requires us to assess the challenged regulation against our historical tradition of firearm regulation. If the historical tradition supports the rights of 16- to 17-year-olds to purchase firearms, then Bruen dictates that they have that right under the
That might be jarring to some. For that matter, some may find permitting 18-year-olds to purchase handguns equally jarring. But those feelings, no matter how legitimate, really are saying a little infringement into the
Also, these arguments, at their core, involve policy—at what age should persons under 21 be able to purchase handguns? Making policy decisions is outside our job description. We make decisions based on the law. That means we must follow Supreme Court precedent faithfully, wherever it takes us. We cannot stray from that obligation when we do not like the result.
2. Nineteenth-Century Evidence
The government turns to nineteenth-century evidence to meet its burden. And the majority concludes this evidence “reinforce[s]” the founding-era history. See Maj. Op. at 17. Admittedly, the government provides evidence of relevantly similar restrictions on 18- to 20-year-olds’ ability to purchase handguns from the decades before and after the
The majority argues that because handguns became more common in the early nineteenth century, we must accord greater weight to the nineteenth-century evidence. See Randolph Roth, Why Guns Are and Are Not the Problem, in A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment 113, 117-24 (Jennifer Tucker et al. eds., 2019). But the former doesn‘t require the latter. It is correct that Bruen acknowledges that “cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” 597 U.S. at 27. At the same time, Bruen still instructs us to apply the historical principles analysis in those cases—“history guide[s] our consideration of modern regulations that were unimaginable at the founding.” Id. at 28. And under a Bruen analysis, the mid-nineteenth-century statutes contradict the original public meaning of the
Also, it is not clear that these mid-nineteenth-century regulations responded to an “unprecedented societal concern[] or dramatic technological change[].” Bruen, 597 U.S. at 27. Handguns existed at the founding. Some American households owned pistols in the mid-eighteenth century. Roth, supra, at 116. True, mid-nineteenth-century revolvers offered ease of use, speed and effectiveness that earlier muzzle-loading pistols could not. Roth, supra, at 121-22. And as a result, breech-loading pistols became more popular. But under the historical principles analysis, the content of the nineteenth-century statutes reveal they were not enacted to remedy this technological change. The supposedly relevantly similar nineteenth-century statutes addressed weapons like knives in addition to pistols. See, e.g., 1856 Ala. Acts at 17 (prohibiting the sale of a pistol, air gun, “a bowie knife, or knife or instrument of the like kind or description, by whatever name called“). Those weapons existed long before the mid-nineteenth century and were not subject to a “dramatic technological change[]” when sale to 18- to 20-year-olds was
Because the government has not shown a relevant principle of restricting 18- to 20-year-olds’ access to self-defense weapons at the time of the founding, it has failed to justify the federal handgun purchase ban. I would find the ban violates the
III. REMEDIES
For the reasons above, I would affirm the district court‘s
The government argues the district court abused its discretion by certifying a Rule 23(b)(2) class after granting summary judgment. We review the district court‘s certification of a class for abuse of discretion. EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014).
An earlier version of
According to the district court, it had wide discretion to decide whether to reach class certification before or after resolving the summary judgment question. Fraser, 2023 WL 5616011, at *3. While certifying a class after granting summary judgment gives me pause, I cannot say the district court abused its discretion here. First, there is no one-way intervention concern because Rule 23(b)(2) class members have no opportunity to opt in or out. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011). Rule 23(b)(2) creates a “mandatory” class and a district court need not even notify members of the action. Id.; see also Gooch v. Life Invs. Ins. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (one-way intervention prohibition does not apply to Rule 23(b)(2) class certifications). Second, unlike many cases, this facial constitutional challenge involved no discovery before summary judgment. So, certification was at an “early practicable time.”
IV. CONCLUSION
For these reasons, I respectfully dissent. The federal handgun purchase ban implicates the