NATIONAL RIFLE ASSOCIATION v. BONDI
No. 21-12314
United States Court of Appeals for the Eleventh Circuit
March 14, 2025
[PUBLISH]
D.C. Docket No. 4:18-cv-00137-MW-MAF
Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, ABUDU, and WILSON, Circuit Judges.*
WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, GRANT, ABUDU, and WILSON, Circuit Judges, joined.
ROSENBAUM, Circuit Judge, filed a concurring opinion in which JORDAN, Circuit Judge, joined as to Parts I and II, and in which ABUDU, Circuit Judge, joined as to Part III.
NEWSOM, Circuit Judge, filed a concurring opinion.
WILSON, Circuit Judge, filed a concurring opinion.
BRANCH, Circuit Judge, filed a dissenting opinion in which LAGOA, Circuit Judge, joined.
BRASHER, Circuit Judge, filed a dissenting opinion in which BRANCH, LUCK, and LAGOA, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether a state law that prohibits the purchase of firearms by minors violates the Second and Fourteenth Amendments as applied to individuals between the ages of 18 and 21. After the Florida Legislature enacted this prohibition in response to the massacre at Marjory Stoneman Douglas High School, the National Rifle Association and an individual member sued the Commissioner of the Florida Department of Law Enforcement. The district court granted summary judgment for the Commissioner. We affirm because the Florida law is consistent with our historical tradition of firearm regulation.
I. BACKGROUND
On February 11, 2017, Nikolas Cruz entered Sunrise Tactical Supply in Coral Springs, Florida. See MARJORY STONEMAN DOUGLAS HIGH SCHOOL PUBLIC SAFETY COMMISSION, INITIAL REPORT 262–64 (2019). Cruz turned 18 years old five months earlier and could legally purchase a firearm in the State of Florida. Id. at 231, 262. At Sunrise Tactical, Cruz lawfully purchased a Smith & Wesson M&P 15 semiautomatic rifle with a sling and bipod attached. Id. at 262–64.
Seconds later, Cruz left the stairwell and opened fire in the first-floor hallway. Id. Gina Montalto sat in the alcove of a classroom, and Luke Hoyer and Martin Duque stood outside the door. Id. Cruz fatally shot all three. Cruz then shot and wounded another student who was in the hall. Id.
Next, Cruz aimed his rifle at a student-filled classroom. Id. He fired two series of shots into the room. Id. These shots killed Alyssa Alhadeff, Alaina Petty, and Alex Schachter and wounded five others. Id. at 25–26. In the next student-filled classroom that Cruz approached, he fatally shot Nicholas Dworet and Helena Ramsay and wounded four others. Id. at 26.
Campus monitor Chris Hixon burst into the hallway and ran toward Cruz; Cruz turned and shot him too. Id. at 27. Hixon fell to the ground wounded and crawled behind a nearby wall. Id. Cruz turned the rifle toward yet another classroom and fired again. Id. at 28. These shots killed Carmen Schentrup and wounded three others. Id. Cruz then ran through the hallway, passed Hixon lying
Next, Cruz entered the stairwell. Id. at 28. There, he encountered campus monitor Aaron Feis. Id. Cruz shot and killed him before he continued to the second floor. Id. at 28–29. He entered the hallway with his rifle raised to fire but found the hallway empty. Id. at 29. As he moved through the hall, he muttered, “no one is here.” Id.
Meanwhile, on the third floor, panic ensued when the fire alarm blared. Id. at 27. Students rushed for the stairwell but reversed course when they heard the gunshots below. Id. As Cruz stalked up the stairwell, one third-floor teacher frantically tried to locate his keys so he could let students back into his classroom. Id. at 31. When Cruz entered the third-floor hallway, about 20 people were still outside classrooms. Id. He opened fire on them. Id. Scott Beigel and another teacher were holding doors open for students when Cruz shot them and killed Beigel. Id. Unable to access his classroom, the teacher searching for his keys hid with several students in the alcove of his classroom before he darted to another alcove to try a different classroom door, which was also locked. Id. at 31–32. He then directed the students to flee with him to the stairwell. Id. at 32. As they ran, Cruz opened fire on them. Id. Jaime Guttenberg and Peter Wang were fatally shot within feet of reaching the stairwell. Id. at 31–32. Cruz then turned his attention to Meadow Pollack, who was on the ground wounded, and Cara Loughran, who remained in the alcove, and fatally shot them. Id.
Five minutes and 32 seconds after Cruz fired the first shots, he fired the final shot. Id. at 25, 33. After shooting students and teachers on the third floor, he shot at the exterior windows of a room on that floor in a last-ditch effort to establish a sniper position to target fleeing students outside the building. Id. at 33. He then entered the stairwell, placed his rifle, vest, and 180 live rounds on the ground and ran down the stairs. Id. at 34. He left the building and ran with fleeing students to blend in. Id. at 34, 125. He walked to a nearby McDonald‘s and sat down at a table occupied by a man. Id. at 35. Unbeknownst to the man, Cruz had shot and seriously injured his sister in a first-floor classroom less than an hour before. Id. at 28, 35–36. Cruz was arrested a short time later. Id. at 36–37. He killed 17 individuals and wounded 17 others during his massacre. Id. at 7.
Less than a month later, Florida enacted the Marjory Stoneman Douglas High School Public Sаfety Act to “address the crisis of gun violence, including but not limited to, gun violence on school campuses.” 2018 Fla. Laws 10. The law states that a “person younger than 21 years of age may not purchase a firearm.”
The National Rifle Association sued the Commissioner of the Florida Department of Law Enforcement for declaratory and injunctive relief and alleged that the Florida law violates the Second and Fourteenth Amendments. Radford Fant, who was between the ages of 18 and 21 at the time, later joined as an individual plaintiff. Although the Association and Fant purported to make a facial challenge to the Florida law, they alleged that it is unconstitutional only to the extent that it prohibits individuals between the ages of 18 and 21 from purchasing firearms. Colton Campbell, who is between the ages of 18 and 21, has since been substituted for Fant as the individual plaintiff.
The parties cross-moved for summary judgment, and the district court granted judgment for the Commissioner. The district court ruled that the Florida law does not violate the right to keep and bear arms of individuals between 18 and 21 years of age.
This appeal followed. During its pendency, the Supreme Court decided New York State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111 (2022). The Supreme Court held that a firearm regulation is constitutional if it “is consistent with this Nation‘s historical tradition of firearm regulation.” Id. at 2126. We vacated a panel opinion that affirmed the district court after the Bruen decision to rehear
II. STANDARD OF REVIEW
We review de novo a summary judgment. Thai Meditation Ass‘n of Ala. v. City of Mobile, 83 F.4th 922, 926 (11th Cir. 2023). Summary judgment is proper where, construing all facts in the nonmovant‘s favor, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id.
III. DISCUSSION
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.”
“Like most rights, the right secured by the Second Amendment is not unlimited.” Id. at 626. “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.” Id. Since the Founding, American law has regulated arms-bearing conduct in many ways: from prohibitions on “gun use by drunken New Year‘s Eve revelers” to bans on “‘dangerous and unusual weapons‘” to restrictions on concealed carry. Rahimi, 144 S. Ct. at 1897 (quoting Heller, 554 U.S. at 627).
Although the Association and Campbell purport to make a facial challenge to the Florida law, their challenge is to the law as applied only to individuals between the ages of 18 and 21. A facial challenge requires a plaintiff to “‘establish that no set of circumstances exists under which the [law] would be valid,’ or . . . show[] that the law lacks a ‘plainly legitimate sweep.‘” Moody v. NetChoice, LLC, 144 S. Ct. 2383 (alteration rejected) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). The Association and Campbell do not challenge the Florida law in that way. They argue that the law is unconstitutional because it bars individuals between the ages of 18 and 21 from purchasing firearms—not because it prohibits all minors from purchasing firearms.
Although a regulation “may not be compatible with the right if it” restricts the right “to an extent beyond what was done at the founding,” the regulation need “not precisely match its historical precursors” either. Id. at 1898. A modern law could “‘pass constitutional muster‘” if it is “‘analogous enough‘” to those precursors to “comport with the principles underlying the Second Amendment,” even if it is not a “‘dead ringer’ or a ‘historical twin.‘” Id. (quoting Bruen, 142 S. Ct. at 2133). To require that a modern law perfectly match a law from the Founding era erroneously “assumes that founding-era legislatures maximally exercised their power to regulate.” Id. at 1925 (Barrett, J., concurring). The Constitution
To determine whether the Florida law is consistent with our regulatory tradition, we must first decide what tradition is relevant to that inquiry. For purposes of this appeal, the Founding era is the primary period against which we compare the Florida law. The Supreme Court has “made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government.” Bruen, 142 S. Ct. at 2137. That is, “incorporated Bill of Rights protections,” like the Second Amendment, “‘are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.‘” McDonald, 561 U.S. at 765 (quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964)).
The Supreme Court has “generally assumed that the scope” of those rights “is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Bruen, 142 S. Ct. at 2137. But the Court did not definitively decide in Bruen the period of history against which we should compare firearm regulations. It acknowledged the “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government).” Id. at 2138. But it declined to decide the proper historical period because the “public understanding of the
The Supreme Court relied heavily on sources from the Founding era to interpret the Second Amendment in Heller. To interpret the phrase “to keep and bear arms,” the Court used dictionaries from the Founding era, “written documents of the founding period,” and “state constitutional provisions written in the 18th century or the first two decades of the [nineteenth century].” Heller, 554 U.S. at 581–92. To determine the meaning of the Second Amendment‘s operative clause, the Court also “look[ed]” to the “historical background of the Second Amendment” because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.” Id. at 592. That historical background spanned over 100 years, from before the Glorious Revolution to the first decade of the nineteenth century. Id. at 592–95. The Court also considered the debate over whether the right to keep and bear arms “needed to be codified in the Constitution.” Id. at 598. And it again considered “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.” Id. at 600–01.
The Supreme Court has warned against the overuse of history from Reconstruction. Although the Supreme Court looked to sources from Reconstruction in Heller, it cautioned that because those sources come “75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.” Id. at 614. And, in Bruen, the Court
Our conclusion that we first look to the Founding understanding finds additional support in the Supreme Court‘s repeated interpretations of other amendments based on their public meaning at the Founding. For example, in Crawford v. Washington, the Court explained that the “founding generation‘s” understanding of the “right to confront one‘s accusers” derived from the “common law.” 541 U.S. 36, 43 (2004). Crawford canvassed English legal history, colonial practice, state law contemporary to the ratification of the Sixth Amendment, ratification debates, and early state practice to ascertain the scope of the right. Id. at 42–50. Likewise, in Virginia v. Moore, the Court explained that it “look[s] to the statutes and cоmmon law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” 553 U.S. 164, 168 (2008). And, in Nevada Commission on Ethics v. Carrigan, the Court considered legislative enactments, treatises, and conflict-of-interest rules contemporaneous to the ratification of the First Amendment to determine whether legislative recusal rules violate the First Amendment. 564 U.S. 117, 122–25 (2011). These precedents reflect the preeminence of Founding-era sources to the meaning of the Bill of Rights. Because the Supreme Court relies on sources from the
Nevertheless, postratification history of a “‘regular course of practice’ can ‘liquidate [and] settle the meaning of’ disputed or indeterminate ‘terms [and] phrases’ in the Constitution.” Bruen, 142 S. Ct. at 2136 (quoting Chiafalo v. Washington, 140 S. Ct. 2316, 2326 (2020)). To be sure, Bruen did not “endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” Id. at 2163 (Barrett, J., concurring). And “to the extent later history contradicts what the text says, the text controls.” Id. at 2137 (majority opinion). For example, in the context of the First Amendment, the Supreme Court declined to rely on a practice of over 30 states from the “second half of the 19th century” yet relied on other evidence from that era. Espinoza v. Mont. Dep‘t of Revenue, 140 S. Ct. 2246, 2258–59 (2020). The Court explained that it saw “no inconsistency in recognizing that such evidence may reinforce an early practice but cannot create one.” Id. at 2259 (emphasis added). So we may look to historical practice from the mid-to-late nineteenth century at least to confirm the Founding-era understanding of the Second Amendment. But we need not and do not decide in this appeal how to address a conflict between the Founding-era and Reconstruction-era understandings of the right because the law of both eras restricted the purchase of firearms by minors. Cf. Bruen, 142 S. Ct. at 2138 (declining to address this issue because “the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry“).
The Founders’ generation shared the view that minors lacked the reason and judgment necessary to be trusted with legal rights. Gouverneur Morris warned that these individuals “want prudence” and “have no will of their own.” 4 THE WRITINGS OF
Because of their lack of reason, infants were subject to the “power” of their parents until they reached age 21. 1 BLACKSTONE, supra, at *452–53; 1 SWIFT, supra, at 213. Parents “ha[d] the benefit” and “receive[d] the profits” of their children‘s labor. 1 BLACKSTONE, supra, at *453. Minors could not sue to vindicate their rights without joining their guardians or some other “next friend” who was not their guardian. Id. at *464. Parents controlled children‘s access to information, including books. Brown v. Ent. Merchs. Ass‘n, 564 U.S. 786, 831–32 (2011) (Thomas, J., dissenting). Nor could they enlist in the military without parental consent. Act of March 16, 1802, 2 Stat. 132, 135 (“[N]o person under the age of twenty-one years shall be enlisted by any officer, or held in the service of the United States, without the consent of his parent.“). Families in New England were arranged so that the “[p]atriarchal household heads sp[oke] for their dependents in dealings with the larger world.” Toby L. Ditz, Ownership and Obligation: Inheritance and Patriarchal Households in Connecticut, 1750–1820, 47 WM. & MARY Q. 235, 236 (1990). Dependent minors “lacked the formal capacity to
Among the many legal disabilities that “secure[d] [minors] from hurting themselves by their own improvident acts,” 1 BLACKSTONE, supra, at *464, minors generally lacked the capacity to contract, id. at *465, and to purchase goods on account, WILLIAM MACPHERSON, TREATISE ON THE LAW RELATING TO INFANTS 303 (1843). All “contracts with infants, except for necessaries, [were] either void or voidable” because “infants . . . are supposed to want judgment and discretion in their contracts and transactions with others.” 1 SAMUEL COMYN, A TREATISE OF THE LAW RELATIVE TO CONTRACTS AND AGREEMENTS NOT UNDER SEAL 148 (1809). As a “general rule,” contracts for the purchase of “personal property” involving minors were “voidable.” 1 SWIFT, supra, at 215. By the early nineteenth century, voidability was applied so “broadly” that “it became almost impossible for children to form any contracts.” HOLLY BREWER, BY BIRTH OR CONSENT: CHILDREN, LAW, AND THE ANGLO-AMERICAN REVOLUTION IN AUTHORITY 271 (2005) (emphasis added). But a minor could “bind himself by his contract for necessaries, for diet[,] apparel, education, and lodging.” 1 SWIFT, supra, at 216; accord BREWER, supra, at 271; 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 256 (William Kent ed., 8th ed. 1854). Yet, an infant who “live[d] with his father or guardian” who adequately cared for him, could not “bind himself even for necessaries.” 2 KENT, supra, at 256–57 (emphasis added).
State militia laws from the Founding era confirm this understanding. Because of the legal incapacity of individuals under the age of 21, states enacted laws at the Founding to address minors’ inability to purchase firearms required for their militia service. The Second Congress passed the Militia Act to enroll “able-bodied” men between the ages of 18 and 45 in the militia. Act of May 8, 1792, 1 Stat. 271, 271. The Act provided that “every citizen so enrolled . . . shall . . . provide himself with a good musket or firelock.” Id. But members of Congress recognized that individuals between the ages of 18 and 21 would need their parents to provide them weapons to comply with the Act. Representative John Vining “asked by what means minors were to provide themselves with the requisite articles” for militia service. 2 JOSEPH GALES, THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 1854–55 (1834). And Representative Jeremiah Wadsworth responded that “as to minors, their parents or guardians would prefer furnishing them with arms themselves, to depending on the United States” to furnish them with arms. Id. at 1856.
States addressed the problem of providing minors the firearms necessary for militia service in different ways. Pennsylvania
University regulations from the Founding era also confirm that minors needed parental consent to access firearms. At the Founding, “[c]ollege authorities stood in the place of parents to the students entrusted to their care.” Brian Jackson, The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform, 44 VAND. L. REV. 1135, 1135–36 (1991). Acting in loco parentis, universities could impose “[a]ny rule or regulation for the betterment of” their students’ “physical, moral, and mental welfare.” Id. at 1146; accord 1 BLACKSTONE, supra, at *453 (A father could “delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge . . . as may be necessary to answer the purposes for which he is employed.“). And universities “were permitted to deny students the autonomy
Exercising this parental authority, universities commonly restricted firearm access both on and off campus. See generally Megan Walsh & Saul Cornell, Age Restrictions and the Right to Keep and Bear Arms, 1791–1868, 108 MINN. L. REV. 3049, 3069–75 (2024); Spitzer, supra, at 112–19 (collecting dozens of public and private university codes and concluding that “policies restricting students’ access to weapons were common, if not ubiquitous” in the 1700s and 1800s). For example, in 1795, Yale College prohibited students from “keep[ing] any kind of fire-arms, or gun-powder.” THE LAWS OF YALE-COLLEGE, IN NEW HAVEN, IN CONNECTICUT, ENACTED BY THE PRESIDENT AND FELLOWS, THE SIXTH DAY OF OCTOBER, A.D. 1795, at 26 (New Haven, Thomas Green & Son 1800). In 1810, the University of Georgia prohibited students from possessing firearms off campus. See The Minutes of the Senatus Academicus 1799–1842, UNIV. OF GA. LIBRS. 86 (Nov. 4, 1976), https://perma.cc/EW28-VU83 (prohibiting students from possessing “any gun” or “other offensive weapon in College” or “out of the college in any case whatsoever“). Later, the University of Virginia prohibited students from keeping “weapons or arms of any kind, or gunpowder” on school grounds. University of Virginia Board of Visitors Minutes, ENCYCLOPEDIA VA. 6–7 (Oct. 5, 1824), https://perma.cc/F32R-AWK9. And students at the University of North Carolina could not “keep . . . fire arms, or gunpowder” nor “carry, keep, or own at the College . . . any deadly weapon” nor “use fire arms without permission from the President.” ACTS OF THE GENERAL ASSEMBLY AND
Mid-to-late-nineteenth-century laws consistent with these principles further establish that our law historically precluded the purchase of firearms by individuals under the age of 21. In the second half of the nineteenth century, 20 jurisdictions enacted laws that restricted access to arms for minors. Most of those laws prohibited all methods of providing arms to individuals under the age of 21. And only a few of these laws allowed parents to provide arms to their children.
Alabama, Tennessee, Kentucky, Indiana, Missouri, Illinois, Maryland, West Virginia, Wisconsin, Iowa, Louisiana, Wyoming, the District of Columbia, North Carolina, and Texas prohibited selling, loaning, or giving dangerous weapons, including pistols, to individuals under the age of 21. 1855–56 Ala. Laws 17;
Five other jurisdictions regulated access to arms for individuals under the age of 21 in slightly different ways. Mississippi prohibited the sale of deadly weapons including pistols to individuals under the age of 21 but did not prohibit other ways of providing arms to those individuals. 1878 Miss. Laws 175; see also Acker v. Trueland, 56 Miss. 30, 34 (1878) (referring to 21 as the age of majority). Similarly, Delaware prohibited the sale of “deadly weapon[s]
The law of the Founding era, which restricted the purchase of firearms by minors, continued into the nineteenth century in the form of statutory prohibitions. By the end of the nineteenth century, at least 19 states and the District of Columbia—representing roughly 55 percent of the population of states admitted to the Union, CENSUS OFF., DEP‘T OF THE INTERIOR, TWELFTH CENSUS OF THE U.S. TAKEN IN THE YEAR 1900, CENSUS REPORTS, VOL. I: POPULATION 2 (1901) (1890 population data)—restricted the purchase or use of certain firearms by minors. When the common-law regime became less effective at restricting minors’ access to firearms, statutes increasingly did the work.
The age of the majority “remained unchanged” in the United States “from the country‘s founding well into the twentieth century.” Hamilton, supra, at 64. When World War II necessitated lowering the conscription age to 18, states lowered the age of majority too. Id. And, in 1971, the ratification of the
From this history emerges a straightforward conclusion: the Florida law is consistent with our regulatory tradition in why and
The Florida law has the same “why” as the Founding-era limitations: individuals under the age of 21 have not reached the age of reason and lack the judgment and discretion to purchase firearms responsibly. To reduce the likelihood that another individual like Nikolas Cruz would lawfully purchase a firearm and use it to inflict grievous harm on himself or others, the Florida law restricts the purchase of firearms by individuals under the age of 21. See
The Florida law is also consistent with our regulatory tradition in “how” it burdens the right. Founding-era law precluded individuals under the age of 21 from purchasing arms because they lacked cash and the capacity to contract. Access to arms was a matter of parental consent. When Founding-era laws required minors to carry arms for militia service, states required their parents to provide the arms. And universities, standing in for students’ parents,
Notably, the Florida law is less restrictive than the law at the Founding in some ways. The militia laws did not empower any individuals under the age of 21 to purchase arms. But the Florida law contains exceptions permitting the purchase of a rifle or shotgun by peace officers, cоrrectional officers, or military personnel.
The Florida law fits comfortably within postratification tradition too. Indeed, many postratification laws went further than the Florida law does. Fifteen jurisdictions prohibited providing pistols and other dangerous weapons under any circumstances to individuals under the age 21, not just selling them. Only six jurisdictions permitted parents to provide arms to their children regardless of circumstances—a step back from the parental consent of the Founding era. And Nevada and Kansas prohibited possession by individuals under the age of 21. That the Florida law is less restrictive than many of these postratification laws further confirms that it fits within our regulatory tradition.
The question is whether the modern law is “‘analogous enough,‘” and the Florida law is. Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 142 S. Ct. at 2133). Like the Founding-era legal regime, the Florida law prevents purchases by minors. The difference between the Florida law and the Founding-era regime is that the law at the Founding was more restrictive than the Florida law because it prevented the purchase of many goods besides firearms. The Florida law does not violate the
The ways in which postratification laws are less restrictive than the Florida law do not undermine our conclusion either. Many of these laws arguably target only abnormally dangerous weapons instead of all weapons. See, e.g.,
Perhaps because that position is so difficult to defend, Judge Brasher‘s dissent frames the Florida law as one that supposedly targets “adults” between the ages of 18 and 21 even though the Florida law, by its terms, covers all individuals under the age of 21. See, e.g.,
The dissent‘s attempt to avoid the weight of legal history by labeling individuals between the ages of 18 and 21 as “adults” is unavailing. The dissent fails to define its category of “adults” for federal constitutional purposes; it discounts the key fact that, at the Founding and until the late twentieth century, the age of majority was 21. Instead of reviewing the legal analogues for regulating the rights of individuals under the age of 21 as minors, the dissent treats contemporary “adults” as the so-called “analogues” of the adults of the Founding era. Id. at 31 (“Not to belabor the point, but eighteen-to-twenty-one-year-olds in Florida today are analogous to adults, not minors, at the time these statutes were enacted.“). The dissent fails to explain which, or how many, modern rights push an individual across the threshold from minor to adult under the
That Florida has lowered the age of majority for some rights does not mean that it has less power to restrict the rights of minors than it did at the Founding. Although 21 was the near-universal age of majority at the Founding, Hamilton, supra, at 64, Florida, in recent decades, has lowered the age of majority for many rights to 18, see
In a real sense, Judge Brasher‘s dissent erroneously reviews the Florida law under an equal-protection standard masquerading as an analysis under the
Florida did not lose its constitutional authority to regulate minors’ access to firearms when it in recent decades bestowed on individuals between the ages of 18 and 21 greater rights than they would have enjoyed at the Founding. Indeed, that Florida distinguishes between the purchase of a firearm and other rights is consistent with the Founding-era legal regime, which also distinguished between when individuals under the age of 21 could exercise rights based on need and maturity. For example, individuals under the age of 21 could enter valid contracts to purchase necessaries if their parents did not provide those necessaries. 2 KENT, supra, at 256–57. The law also treated marriage contracts differently than other contracts. See 1 BLACKSTONE, supra, at *433, 436. Boys could validly marry at the age of 14, and girls could at the age of 12—the “years of discretion” for marriage. Id. at *436. These Founding-era exceptions for the exercise of rights based on need or judgments about maturity are no different from Florida‘s contemporary judgment that only individuals with a greater degree of maturity should be able to purchase firearms. And that judgment is
Nor does the fact that some states required minors to serve in the militia establish that they had a right to unfettered firearm access. Judge Brasher‘s dissent mistakes the duty of some minors to serve in the militia for a right to purchase firearms. See Brasher Dissenting Op. at 13–16. Although minors between the ages of 18 and 21 could serve in the militia, there was no national requirement that they do so. Instead, Congress permitted, but did not require, states to mandate militia service for minors between 18 and 21 years of age. 1 Stat. at 271–272. And, consistent with that authority, New Jersey, Ohio, and Kansas exempted minors from service in the militia in the nineteenth century. ACTS OF THE FIFTY-FOURTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY 3 (Trenton, Joseph Justice 1829) (excluding minors under the age of 21 from the militia); ACTS OF A GENERAL NATURE, PASSED BY THE FORTY-SECOND GENERAL ASSEMBLY OF THE STATE OF OHIO 53 (Columbus, Samuel Medary 1844) (same); KAN. CONST. of 1859, art. VIII, § 1 (same). Contrary to the dissent, the militia laws establish no national “expectation of gun ownership” by minors. Brasher Dissenting Op. at 14. They establish only that many state legislatures determined that minors could be required to bear arms provided by their parents and to use those arms under the command and supervision of militia officers.
Nor does it make any sense for Judge Branch‘s dissenting opinion to suggest that our citation of a decision refusing to enforce a creditor‘s purported contract with a minor, Ott‘s Adm‘r, 12 S.C.L. (1 McCord) at 572, somehow proves that minors regularly purchased firearms in the Founding era, see Branch Dissenting Op. at 7. Judge Branch‘s dissent cites no firearm-sales contract with a minor enforced by any court, and it points to no evidence that minors in any state regularly purchased firearms.
It bears repeating that it is unclear whether our dissenting colleagues accept that any age restriction for the sale of firearms is constitutional. If they dо not, their position would require
The recent contrary decision of our sister circuit—which ignored how the common-law regime restricted minors’ access to firearms—also fails to persuade us. Reese v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 127 F.4th 583, 586 (5th Cir. 2025)
The written laws of the Founding era must be understood in the light of that predominant common-law regime. See William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 NOTRE DAME L. REV. 1467, 1468-70 (2024) (“The constitutionalization of a preexisting right means that . . . the Constitution‘s reference to a legal right must be understood by learning the historical customary law that defined and governed the right before its codification.“); J. Joel Alicea, Bruen Was Right, 174 U. PA. L. REV. (forthcoming 2025) (manuscript at 32-33), https://perma.cc/C592-T8GA (“[T]he more reasonable reading is that Bruen does not, in fact, limit the category of historical evidence to regulations. Bruen is an originalist methodology . . . . In other contexts, the Court has rightly looked to many different sources to determine the original meaning of the Constitution.“); see generally Stewart Jay, Origins of Federal Common Law: Part Two, 133 U. PA. L. REV. 1231 (1985); Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 WM. & MARY L. REV. 655 (2013); Caleb Nelson, The Persistence of General Law, 106 COLUM. L. REV. 503 (2006); William Baude, et al., General Law and the Fourteenth Amendment, 76 STAN. L. REV. 1185 (2024). That common-law regime restricted minors’ ability to purchase firearms. The state statutes that obligated parents to provide firearms for minors’ militia service confirm that minors had limited access, and the many university regulations that restricted firearm possession by students confirm that minors’ access was a matter of
Nor are we persuaded that two other considerations present in Rahimi command a different conclusion. First, although the Supreme Court acknowledged in Rahimi that
Second, the lack of criminal penalties at the Founding is not dispositive, especially in the light of the criminal penalties that
Finally, we assume, but do not decide, that individuals under the age of 21 are part of “the people” protected by the
The Florida law that prohibits minors from purchasing firearms does not violate the
IV. CONCLUSION
The judgment in favor of the Commissioner is AFFIRMED.
I join in the Majority Opinion‘s excellent explanation of why the Marjory Stoneman Douglas High School Public Safety Act, see
First, in concluding Florida‘s law is constitutional under the
Second, modern medical science bolsters the Majority Opinion‘s conclusion that Florida‘s law limits Under-21s’ ability to buy firearms for the same reasons the common law did during the
Third, I agree with the Majority Opinion‘s decision to leave for another day whether Founding Era or Reconstruction Era evidence controls Bruen‘s historical inquiry, Maj. Op. at 14, if a conflict arises between the two or the Founding Era is silent on the issue. I write separately to emphasize that good reasons favor that decision. For starters, it‘s not necessary to resolve the question because no conflict exists here between Founding Era and Reconstruction Era history. Second, many constitutional scholars and courts have weighed in on the side of Reconstruction Era history in a conflict or Founding Era silence. And for good reason. Among others, the Constitution‘s meaning is fixed to the understanding of those who ratified it, so we interpret the Constitution‘s provisions, including those guaranteeing our rights, at the time the people adopted them. District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008).
I discuss each of my three points in more detail below.
I. The states’ response to a new problem—an unprecedented kind of Under-21 firearm violence—that began to arise during the nineteenth century because of unprecedented societal and technological change is “relevantly similar” to Florida‘s law.
The Majority Opinion explains why both Founding Era and nineteenth-century laws are relevantly similar to Florida‘s law and why they show that Florida‘s law is constitutional. In this Part, I write to add a few thoughts on the nineteenth-century history.
Before diving into that history, though, I pause to review some principles that govern our historical inquiry. The Supreme Court has recognized that times change, and with them, so do technology and societal problems. See Bruen, 597 U.S. at 27; United States v. Rahimi, 602 U.S. 680, 691-92 (2024). As a result, “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.” Bruen, 597 U.S. at 27. Yet the
In reconciling the
But sometimes new problems arise, and legislatures must address “unprecedented societal concerns or dramatic technological changes.” Bruen, 597 U.S. at 27; see Bianchi v. Brown, 111 F.4th 438, 464 (4th Cir. 2024) (en banc) (“These are not our forebears’ arms, and these are not our forebears’ calamities. We thus take the instruction of Bruen to engage in а ‘more nuanced approach’ to address these ‘unprecedented societal concerns.‘” (quoting Bruen, 597 U.S. at 27)).
The question is whether “the challenged regulation is consistent with the principles that underpin our regulatory tradition,” id. at 692 (Roberts, C.J., majority) (emphasis added), not whether the challenged regulation has a historical “twin” or “cousin,” id. at 739 (Barrett, J., concurring). And to answer that question, we must view the principles underlying our regulatory tradition through the correct lens, adjusting the focus to “just the right level of generality” so that we are continuing to respect the
Bruen suggests that analogical reasoning—comparing the “why” and the “how” of historic laws to the challenged law—is one way to resolve the questions our historical inquiry poses. Still, the Court explained that it didn‘t conduct an “exhaustive survey of the features that render regulations” consistent with our Nation‘s tradition of firearm regulation. Id. at 29. Other factors also help us assess whether a historic law can serve as a “relevantly similar” analogue for a law that addresses “circumstances beyond those the
First, if the “proliferation of” analogues to a challenged law “coincides with the” new changes or technological developments, that may suggest that the modern law can pass constitutional muster. Antonyuk v. James, 120 F.4th 941, 1022 (2d Cir. 2024). Today‘s laws, though they may in some ways regulate arms-bearing behavior “to an extent beyond what was done at the founding,” Rahimi, 602 U.S. at 692, or through “different means,” Bruen, 597 U.S. at 26, need only impose a “comparable burden” that is “comparably justified” by new societal problems and technological advancements, id. at 29. See, e.g., Bianchi, 111 F.4th at 464 (“[L]egislatures, since the time of our founding, have responded to the most urgent and visible threats posed by excessively harmful arms with responsive and proportional legislation.“).
After all, “founding-era legislatures” generally did not “maximally exercise[] their power to regulate,” and the Constitution does not “adopt[] a ‘use it or lose it’ view of legislative authority.” Rahimi, 602 U.S. at 739-40 (Barrett, J., concurring). So when governments enact a new solution to solve a new problem, that law may still “fit[] neatly within” our regulatory tradition despite differences from its historical predecessors. Id. at 698 (Roberts, C.J., majority); see, e.g., United States v. Diaz, 116 F.4th 458, 471 & n.5 (5th Cir. 2024) (relying on one historical analogue to supply the “why” and on another to separately supply the “how“).
Second, if a proposed historical analogue has been “reasonably consistent and longstanding,” that favors the conclusion that the modern law accords with a tradition of firearm regulation. Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring); see Heller, 554 U.S. at 626 (confirming “nothing in our opinion should be taken to cast doubt on longstanding prohibitions“); Bruen, 597 U.S. at 30 (explaining laws are more likely constitutional where there are “no disputes regarding the lawfulness of such prohibitions“).
We generally don‘t “repeat[]” unconstitutional acts and allow them “to crystallize into a regular practice.” Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring) (quoting United States v. Midwest Oil Co., 236 U.S. 459, 472-73 (1915)); accord McPherson v. Blacker, 146 U.S. 1, 27 (1892); The Pocket Veto Case, 279 U.S. 655, 688-90 (1929); Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002); NLRB v. Noel Canning, 573 U.S. 513, 525-26 (2014); cf. Washington v. Glucksberg, 521 U.S. 702, 710, 723-24 (1997) (finding no fundamental right where longstanding laws regulate that purported right); Kerry v. Din, 576 U.S. 86, 95 (2015) (plurality opinion) (same); Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215, 239-41 (2022) (same); Dep‘t of State v. Munoz, 602 U.S. 899, 911-12 (2024) (same). So regular or longstanding practices can imply constitutionality.
And we view that implication of constitutionality as even stronger if a particular practice has gone unchallenged (or survived challenges) in jurisdictions that enforce “analogous arms-bearing rights” through “interpretation[s] of . . . state constitutional provisions adopted by . . . state courts.” See Heller, 554 U.S. at 585 &
To be clear, I‘m not suggesting that “freewheeling reliance on historical practice,” “unmoored from [the] original meaning” of the
But consistent and longstanding practices may “reinforce our understanding of the Constitution‘s original meaning,” including “the scope of the pre-existing right that the people enshrined in our fundamental law.” Id. at 738-39 (citation omitted). And they may do so “even when that practice began after the founding era.” Noel Canning, 573 U.S. at 525.
For instance, if Founding Era practice plausibly supports two interpretations of the
Here, the nineteenth-century history calls for us to employ both these tools.
First, in that century, a problem that didn‘t and couldn‘t have existed during the Founding Era arose for the first time: an unprecedented kind of lethal, gun-related violence that Under-21s largely inflicted. The new violence became possible because of revolutionary advances in firearms technology. And the urbanization and industrialization of the United States in the Antebellum, Civil War, and Reconstruction periods enabled Under-21s to buy these newly disruptive firearms for the first time. This perfect storm caused the common-law concern that Under-21s lack the necessary reason and judgment to buy arms to manifest in a way far more dangerous than our “Founders specifically anticipated.” Bruen, 597 U.S. at 28.
To put a finer point on it, this new problem was a more focused manifestation of Under-21s’ less-than-fully-developed reasoning ability that served as the basis for the common-law restrictions during the Founding Era. And it demanded more focused solutions—laws that specifically addressed the problem of Under-21 gun violence. In other words, a narrower “why” required a more targeted “how.”
So states across the country responded to this hurricane of violence by enacting statutory restrictions on Under-21s’ purchases of certain arms to restore the Founding Era status quo. And
This Part explains why we can rely on those nineteenth-century laws in our analysis, and it shows that they are “relevantly similar” to Florida‘s law. Section A traces the societal and technological roots of the emerging nineteenth-century problem of lethal gun violence perpetrated by Under-21s. Section B recounts the states’ response to this new problem and explains that the states’ laws have withstood the test of time for more than 150 years. And Section C shows that Florida‘s law is “relevantly similar” to these nineteenth-century precursors, so it, too, survives
A. Dramatic technological and sociological changes created a new problem of lethal firearm violence perpetrated by Under-21s in the nineteenth century.
At the Founding, firearms seldom contributed to homicides. To the contrary, “interpersonal violence among colonists and early Americans rarely resulted in death.” Bianchi, 111 F.4th at 464 (citing Randolph Roth, Why Guns Are and Aren‘t the Problem, in A RIGHT TO BEAR ARMS? THE CONTESTED ROLE OF HISTORY IN CONTEMPORARY DEBATES ON THE SECOND AMENDMENT 116 (Jennifer Tucker et al. eds., 2019)).
Firearms were simply impractical for the task. Americans owned muskets and fowling pieces, which were prone to misfiring, needed to be reloaded after each shot, and required substantial acumen and experience to effectively employ in combat. Roth, Why
So Americans didn‘t carry guns that they could readily use in a fight. Bianchi, 111 F.4th at 464; see Tennessee v. Garner, 471 U.S. 1, 14 (1985) (“[C]ommon-law rule[s] developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle . . . .“). In fact, “[w]ell into the 1800s, even after pistols became more common, some still considered knives to be more dangerous.” Blocher & Ruben, supra, at 154; see Cockrum v. State, 24 Tex. 394, 402 (1859) (“The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least. . . . The bowie-knife differs from these in its device and design; it is the instrument of almost certain death.“).
Not only were guns impractical as impromptu combat weapons during the Founding Era, but Under-21s couldn‘t buy firearms, anyway. As the Majority Opinion explains, “the limitations on” Under-21s’ “legal rights . . . were so pervasive” that they created a practical bar on Under-21s’ ability to buy guns. Maj. Op. at 29.
Plus, even if Under-21s could somehow get their hands on firearms, their parents could simply dispossess their children of them. After all, at the Founding, parents enjoyed “total parental control over children‘s lives.” Brown v. Ent. Merchs. Ass‘n, 564 U.S. 786, 830 (2011) (Thomas, J., dissenting). Parents could even excuse their children from both militia and military service. See 25 ANNALS OF CONG. 172 (1812) (Joseph Gales ed., 1834) (remarks of Rep. Josiah Quincy III) (“The obligation to serve in the militia, is always subject to the paramount duty to the master and the parent.“); Frances M. Clarke & Rebecca Jo Plant, No Minor Matter: Underage Soldiers, Parents, and the Nationalization of Habeas Corpus in Civil War America, 35 L. & HIST. REV. 881, 892-95 (2017) (explaining parents’ widespread use of the writ of habeas corpus to recall their children from military service was “rooted in common law traditions that imbued parents with substantial authority over their children until they reached the age of majority“).
purchasing firearms, so Under-21s didn‘t pose a public-safety risk at
To start with technology, by the 1810s, multiple inventors had begun developing “percussion caps“—small, sealed caps (usually made of copper) filled with fulminate, a detonating chemical. Brian DeLay, The Myth of Continuity in American Gun Culture, 113 CALIF. L. REV. (forthcoming 2025) (manuscript at 66). So firearm owners no longer had to fill a gun‘s pan with priming powder because gunsmiths could create an ignition system that would strike the precision cap and light the fulminate within, igniting the gunpowder that would discharge the bullet. Id. at 66-67; see also Bianchi, 111 F.4th at 465.
As a result, more effective pistols appeared in commerce. DeLay, supra, at 67. By the 1830s, repeating pistols entered the market, spearheaded by Samuel Colt‘s and Ethan Allen‘s designs. Id. at 68; see also Bianchi, 111 F.4th at 465. And by 1866, gunsmiths developed the modern centerfire metallic cartridge. David B. Kopel & Joseph G.S. Greenlee, The History of Bans on Types of Arms Before 1900, 50 J. LEGIS. 223, 267 (2024). These bullets were more stable and reliable than their predecessors. And they benefitted from
At the same time, the United States rapidly industrialized and urbanized. In the period immediately after the Revolution, the United States was an agrarian society; “urban areas simply did not exist in 1791 as we understand them today.” Blocher & Ruben, supra, at 154.
The whole country consisted of only four million Americans, and New York, our largest city at that time, had just 33,000 people. Id. Americans were mostly “isolated farmers” who “produced just enough food, livestock, and clothing for their own family‘s needs.” GEORGE B. TINDALL & DAVID E. SHI, AMERICA: A NARRATIVE HISTORY 353 (10th ed. 2016). Families typically lived together on a farm, with children providing their parents much-needed labor throughout their youth. Steven Ruggles, Multigenerational Families in Nineteenth-Century America, 18 CONTINUITY & CHANGE 139, 160-62 (2003).
The War of 1812 spurred the beginning of dramatic changes. It forced the United States to become more self-reliant and to enlarge its manufacturing capabilities. TINDALL & SHI, supra, at 341. So the country began to shift from an “agricultural republic” to a “commercial” and “industrial” nation. Id. at 341-42. New jobs in mills, factories, stores, and banks attracted Americans to cities, and they left their farms. Id. at 352. In the 1830s and 1840s, northern states rapidly urbanized. Jeffrey G. Williamson,
To put the overall change in perspective, only about five percent of the United States‘s population lived in cities in 1790. David R. Goldfield, The Stages of American Urbanization, 5 OAH MAG. HIST. 25, 27 (1990). But for each of the decades between 1820 and 1870, our nation‘s urban population grew at three times the rate of our national population. Id. So by 1870, more than a quarter of the American population lived in cities. Id. As a result, by halfway through the 1800s, a “market-based economy” had replaced the farm economy, and Americans had access to cash income, which they could use to buy goods. TINDALL & SHI, supra, at 352-53 (emphasis omitted).
Firearms were among those goods. PATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO CONCEALED CARRY 141 (2019). Shops started stockpiling and selling arms. Id. at 404 n.211. And “Americans scrambled to buy them.” Roth, WHY GUNS ARE AND AREN‘T THE PROBLEM, supra, at 121.
Against a background of industrialization, huge population increases, and a race to urbanize, “the rapid proliferation of mass-produced single-shоt and repeating pistols unsurprisingly led to increases in armed crime.” DeLay, supra, at 68. And by the 1850s,
Homicide statistics show when this problem arose. At the Founding and into the nineteenth century, homicide rates fell as Americans understood “the long-term consequences of the Revolution.” RANDOLPH ROTH, AMERICAN HOMICIDE 180 (2009). By the 1820s, homicide rates in the North hit historic lows—the lowest rates in our history. Id. So too in the mountain South. Id. at 180-81. And in the Midwest, the homicide rates bottomed out by the 1830s. Id. at 180.
But as the nineteenth century progressed through the Antebellum period and into Reconstruction, interpersonal violence surged. The wave started in the South, before sprawling northward, eastward, and westward. Bianchi, 111 F.4th at 465 (citing ROTH, AMERICAN HOMICIDE, supra, at 180, 199-201, 299-302, 337).
And for the first time, Under-21s began to regularly perpetrate gun violence, too. Industrialization and “the loss of fathers and older brothers” in the Civil War resulted in less family “control” over Under-21s. Loren Walker, Juvenile Violence, 1861-1865 (Civil War Era), in ENCYCLOPEDIA OF JUVENILE VIOLENCE 148, 148 (Laura L. Finley ed., 2007). And because, during the industrial
In turn, “[o]ver the course of the early nineteenth century,” courts “gradually abandoned th[e] set of legal rules” that “prevented minors from making contracts” or “work[ing] for wages.” James D. Schmidt, “Restless Movements Characteristic of Childhood“: The Legal Construction of Child Labor in Nineteenth-Century Massachusetts, 23 L. & HIST. REV. 315, 317-18 (2005) (identifying three periods of legal developments in Massachusetts: 1830s, 1840s, and 1850s-1910s). Industrialization, mass production of guns, and the erosion of the common-law regime that effectively banned Under-21s from buying firearms meant that Under-21s could now purchase cheap, widely available guns.
Urbanization also exposed many Under-21s to crime and poverty. New York City, for instance, “saw an enormous increase in the number of juvenile gangsters.” HERBERT ASBURY, THE GANGS OF NEW YORK: AN INFORMAL HISTORY OF THE UNDERWORLD 238 (Capricorn Books 1970) (1928). Overall, juvenile crime exploded, and the number of juvenile reformatories increased from one in 1825 to forty-five by 1885. Walker, supra, at 148.
Americans noticed this problem in real time. Citizens complained “that it was ‘common’ practice among the more violently
Editorials and news reports decrying Under-21s’ access to firearms littered publications in the post-Civil War United States. See Nat‘l Rifle Ass‘n v. Bondi, 61 F.4th 1317, 1319 & nn.1-5, 1329-30 (11th Cir.) (collecting newspapers and editorials), reh‘g en banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023); cf. Heller, 554 U.S. at 615 (relying on “an editorial” to conclude that a “view” was “widely held“). “[B]oth lawmakers and the public supported” “laws restricting the sale of dangerous weapons to minors.” CHARLES, supra, at 156; see id. at 404-05 (collecting legislative history, newspapers, and other primary materials). They thought these restrictions would slow and prevent Under-21s from inflicting firearm-related casualties. Id. at 156.
Because of this perfect storm of dramatic societal and technological changes, between the middle and end of the nineteenth century, Americans faced a public-safety crisis “beyond [anything] the Founders specifically anticipated.” Bruen, 597 U.S. at 28. And they responded with statutes restricting the sale of firearms to Under-21s in jurisdictions where more than half the United States population lived. Maj. Op. at 26.
Those criminal, statutory prohibitions on the sale of firearms to Under-21s survived, to my knowledge, any constitutional scrutiny for the first 166 years after Alabama enacted the first such state-wide statute in 1855. See Maj. Op. at 23-27 (collecting statutes); Hirschfeld v. BAFTE, 5 F.4th 407, 438 & n.51, 453 (4th Cir.) (first-ever appellate opinion declaring unconstitutional a restriction on the sale of certain firearms to Under-21s), vacated as moot, 14 F.4th 322 (4th Cir. 2021). That “longstanding” practice is highly “probative” of the Second Amendment‘s meaning and its scope. Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring).
Take the first three states to enact bans on Under-21s’ purchase of certain firearms: Alabama, Tennessee, and Kentucky. 1855-56 Ala. Laws 17;
All three statutes either went unchallenged or survived constitutional scrutiny. And thаt‘s so even though each state court interpreted its state constitution‘s right to keep and bear arms in lockstep with what the Supreme Court has said is the original meaning of the Second Amendment. See Heller, 554 U.S. at 602-03, 608-09, 612-13 (approving of the rights enshrined in the constitutions of Alabama, Tennessee, and Kentucky).
Alabama‘s Constitution, for example, “adopted” a “Second Amendment analogue” that “used the . . . individualistic phrasing that each citizen has the ‘right to bear arms in defence of himself and the State.‘” Heller, 554 U.S. at 602 (quoting
Still, against that backdrop, Alabama made it illegal to “sell or give or lend, to any male minor, a[n] . . . air gun or pistol.” 1855 Ala. Laws 17; see Saltonstall, 28 Ala. at 172 (describing “a minor under the age of twenty-one years“). And no one successfully challenged the law. In fact, the Alabama Supreme Court upheld a conviction under it. Coleman v. State, 32 Ala. 581, 582-83 (1858).
Yet despite Page‘s recognition of “every man[‘s] . . . right to own and keep” “pocket pistols, or revolvers,” id., the state prohibited selling, loaning, giving, or delivering “to any minor a pistol . . . or like dangerous weapon, except a gun for hunting or weapon for defence in traveling,”
That expansive interpretation of the right to keep and bear arms was an outlier in that it over-secured the right as the Second Amendment embodied it. Other states recognized that fact. See Commonwealth v. Murphy, 166 Mass. 171, 172-73 (1896) (explaining Bliss “has not been generally approved“). Yet it appears that no one challenged Kentucky‘s law making it unlawful for anyone, “other than the guardian,” to “sell, give, or loan any pistol . . . slung-shot, cold, cane-gun, or other deadly weapon . . . to any minor.” 1859 Ky. Acts 245, § 32; see Newland, 57 Ky. (18 B. Mon.) at 671 (referring to twenty-one as the age of majority). And in one instance, Kentucky‘s highest appellate court dismissed for want of jurisdiction an appeal from a prison sentence based on a conviction under the statute. Tankersly v. Commonwealth, 9 S.W. 702, 702-03 (Ky. 1888).
Yet despite the right to bear arms‘s force and the states’ protection of it, jurisdictions around the country—representing over half the population—followed the leads of Alabama, Tennessee, and Kentucky and enacted their own, similar restrictions. See Maj. Op. at 23-27 (collecting examples). Simply put, state courts across the country that had applied their states’ Second Amendment analogue in lockstep with Heller‘s understanding of its pre-existing right found no constitutional concern when their governments
So it‘s unsurprising that Thomas Cooley‘s “massively popular . . . Treatise on Constitutional Limitations,” Heller, 554 U.S. at 616, easily confirmed those laws did not offend the right to keep and bear arms. See THOMAS M. COOLEY, TREATISE ON CONSTITUTIONAL LIMITATIONS 739 & n.4 (5th ed. 1883) (“[T]he State may prohibit the sale of arms to minors” as “a just restrain of an injurious use of property, which the legislature have authority to impose.” (citation omitted)). And his treatise noted no conflict between Callicutt, which upheld Tennessee‘s law barring the sale of pistols to Under-21s, and other cases, such as Bliss, which held unconstitutional on Second Amendment grounds other gun-control laws. See id. at 428 & nn.3-4, 739 & n.4. In short, it‘s clear that the ability to limit Under-21s’ access to firearms inhered in this Nation‘s tradition of firearm regulation.
No court concluded otherwise in roughly the century-and-a-half after Reconstruction. To the contrary, jurisdictions across the United States continued the tradition of limiting firearm sales to Under-21s. And courts routinely upheld and enforced criminal prohibitions. See, e.g., Biffer v. City of Chicago, 278 Ill. 562, 565-66, 570-71 (1917) (monetary penalties); State v. Quail, 28 Del. 310, 310 (1914) (monetary penalties and imprisonment); United States v. Rene E., 583 F.3d 8, 20 (1st Cir. 2009) (same); Nat‘l Rifle Ass‘n of Am. v. BAFTE, 700 F.3d 185, 211 (5th Cir. 2012) (same), abrogated by Diaz, 116 F.4th at 465; see also State v. Allen, 94 Ind. 441, 443 (1884)
Beyond criminal punishments, courts also allowed victims of firearm violence to pursue negligence actions against merchants who sold firearms to Under-21s. See, e.g., Hoosier v. Lander, 17 Cal. Rptr. 2d 518, 522 (Ct. App. 1993) (statute applied to and plaintiff was under 21); Coker v. Wal-Mart Stores, Inc., 642 So. 2d 774, 778 (Fla. Dist. Ct. App. 1994) (same); cf. Poland v. Earhart, 30 N.W. 637, 637-38 (Iowa 1886) (statute applied to Under-21s; plaintiff was under 18); Bernard v. Smith, 90 A. 657, 658-59 (R.I. 1914) (statute applied to and plaintiff was under 15); Spires v. Goldberg, 106 S.E. 585, 586-88 (Ga. App. 1921) (statute applied to Under-21s; plaintiff was under 18); McMillen v. Steele, 275 Pa. 584, 586 (1923) (statute applied to and plaintiff was under 16); Neff Lumber Co. v. First Nat. Bank, 122 Ohio St. 302, 305, 307-09 (1930) (statute applied to and plaintiff was under 17); Driesse v. Verblaauw, 153 A. 388, 388, 390 (N.J. Sup. Ct. 1931) (statute applied to and plaintiff was under 16); Tamiami Gun Shop v. Klein, 116 So. 2d 421, 422-24 (Fla. 1959) (ordinance applied to Under-21s; plaintiff was under 18); Crown v. Raymond, 159 Ariz. 87, 90 (Ct. App. 1988) (statute applied to Under-21s; plaintiff was under 18).
These actions, of course, could not have occurred had states interpreted their pre-existing right to keep and bear arms to protect the sale of firearms to Under-21s. Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 277 (1964) (explaining the First Amendment limits the bounds of state torts); Wampler v. Higgins, 93 Ohio St. 3d 111, 132 (2001) (concluding the Ohio Constitution limits state-law defamation actions).
And well into the twentieth century, Congress passed the Gun Control Act of 1968 (“1968 Act“). The new law “sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U.S. 212, 218 (1976). Chief among its restrictions were those on the “transfer[] [of ] handguns,” along with certain other firearms, with some exceptions, “to any person under 21.” Printz v. United States, 521 U.S. 898, 902 (1997) (citing
The legislative history explained the rationale. The Senate Report highlighted, “In contributing to our ever-increasing crime rates, juveniles account for some 49 percent of the arrests for serious crimes in the United States and minors account for 64 percent of the total arrests in this category.” S. REP. NO. 90-1097, at 77 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2165. So the 1968 Act included restrictions on the sale of firearms to Under-21s as part of its “attempt to take major steps to prevent firearm abuses.”3
Busic v. United States, 446 U.S. 398, 404 n.9 (1980).
And the 1968 Act too survived without courts expressing constitutional concern for more than the next five-and-a-half decades. See, e.g., Rene E., 583 F.3d at 20 (upholding the restriction as to Under-21s); BAFTE, 700 F.3d at 211 (same); see also Heller, 554 U.S. at 626-27 & n.26 (considering some of the Gun Control Act‘s restrictions “on the possession of firearms” as “longstanding prohibitions” that are “presumptively lawful regulatory measures“). Based on my review of the history, until 2021, not one federal appellate court or state court of final review held unconstitutional a limitation on the sale of certain firearms to Under-21s. Cf. Hirschfeld, 5 F.4th at 438 (before being vacated as moot, holding unconstitutional the federal law limiting the sale of handguns and handgun ammunition to Under-21s).
That consistent, longstanding, and uninterrupted tradition of prohibiting the sale of firearms to Under-21s through criminal statutes, beginning in 1855 with Alabama‘s law and running through at least 2021, provides evidence of the constitutionality of laws like Florida‘s that prohibit the sale of firearms to Under-21s.
Judge Brasher‘s Dissent says it doubts this body of history—what it calls a “slow trickle of . . . laws“—establishes an “enduring” and “representative” regulatory tradition. Brasher Diss. Op. at 28 (quoting Bruen, 597 U.S. at 27, 30, 67). I disagree.
There is no reasonable dispute over whether the nineteenth-century regulatory tradition is “enduring“; by any definition, it is. Indeed, the Reconstruction Era laws have gone virtually unchallenged since 1855, and they are rooted in the common law.
Similarly, it‘s objectively wrong to suggest a regime that governed the majority of the nineteenth-century population and the entire twentieth-century population is not “representative” of our legal traditions. That‘s not just “representative“; it‘s overwhelming. After all, courts have concluded far lower proportions of the population were “representative.” See, e.g., Antonyuk, 120 F.4th at 1022-23 (concluding a representative tradition existed where “15.3 percent of the Nation‘s population,” comprising “37.7% of the urban population living” in the United States, prohibited firearms in
Our consistent, longstanding, and uninterrupted tradition of prohibiting the sale of firearms to Under-21s through criminal statutes, beginning in 1855 with Alabama‘s law and running through at least 2021, provides evidence of the constitutionality of laws like Florida‘s that prohibit the sale of firearms to Under-21s.
C. Florida‘s law fits comfortably within this Nation‘s tradition of firearm regulations.
The historical evidence makes this an easy case. Florida‘s law is not an “outlier[] that our ancestors would never have accepted.” Bruen, 597 U.S. at 30 (citation omitted).
As the Majority Opinion explains, the common law‘s impediments to Under-21s’ ability to buy guns during the Founding Era are “relevantly similar” to the Florida law‘s statutory prohibition on the sale of firearms to Under-21s. Starting with the “why,” our Founders worried that Under-21s lacked sufficient reasoning and decisionmaking ability to responsibly purchase and possess guns without supervision. And Florida passed its law for the same reason. Turning to the “how,” the Founding Era‘s common law had the practical effect of precluding Under-21s from purchasing
Moving into the nineteenth century, “unprecedented societal concerns” and “dramatic technological changes” required our Nation to address for the first time the new problem of Under-21s’ perpetration of lethal firearm violence. Id. at 27. The states responded to this new type of firearm violence by barring Under-21s from purchasing pistols and other dangerous weapons. Again, both the “how” and the “why” of these nineteenth-century state laws are “relevantly similar” to those of Florida‘s law.
Starting again with the “why,” both nineteenth-century legislatures and Florida tried to curb a rise in deadly firearm violence that Under-21s were inflicting. Our Founders had a general concern about Under-21s’ underdeveloped decisionmaking abilities. But the technological advancements and societal changes during the Antebellum, Civil War, and Reconstruction periods allowed any underdeveloped reasoning abilities of Under-21s our Founders worried about to create a true public-safety crisis.
Florida‘s law responds to the same crisis: advancements in weaponry have enabled Under-21s to commit mass murder on a greater scale than ever before. So turning to the “how,” both nineteenth-century legislatures and Florida enacted criminal, statutory prohibitions on the sale of firearms to Under-21s. Yet unlike some Under-21s in the Reconstruction Era, Floridians under the age of
To be sure, some differences exist among Florida‘s law, the laws of the nineteenth century, and the common law at the Founding.4 But none of those differences place Florida‘s law outside our
And two more details confirm that rule defines the “principle[] underlying the Second Amendment,” Rahimi, 602 U.S. at 692, at “just the right level of generality,” id. at 740 (Barrett, J., concurring): (1) the new nineteenth-century problem of Under-21s’ lethal gun violence, which arose from dramatic societal and
First, states enacted explicit prohibitions on the sale of firearms to Under-21s as a direct response to the technological advancements in firearm lethality and the societal changes that eroded the common-law system of firearm regulations. Defining the “controlling principle” at any more specific level of generality would have required Reconstruction Era legislatures (and now Florida), who faced new problems, “to follow late-18th-century policy choices” made in response to late-18th-century problems. Rahimi, 602 U.S. at 739 (Barrett, J., concurring). And that would give us a “law trapped in amber,” id. (citation omitted), not one “intended to endure for ages to come, and . . . to be adapted to the various crises of human affairs,” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis omitted). Put another way, the nineteenth-century regulations imposed a “comparable burden” on the right to keep and bear arms that was “comparably justified” by new societal problems and technological advancements.5 Bruen, 597 U.S. at 29.
And second, these laws prohibiting the sale of firearms to Under-21s have gone unchallenged for almost the entirety of American history. That they weren‘t challenged or ruled unconstitutional for so long, even despite a vibrant Second Amendment jurisprudence, see, e.g., Bliss, 12 Ky. at 91-92; Reid, 1 Ala. at 616; Nunn, 1 Ga. at 251; Page, 50 Tenn. at 198, suggests the “controlling principle” is at the level of generality I describe. See Keith E. Whittington, Originalism: A Critical Introduction, 82 FORDHAM L. REV. 375, 385-86 (2013) (explaining a consensus about the validity of certain laws helps clarify which plausible interpretation of the Constitution controls); Antonyuk, 120 F.4th at 1022-24 (concluding an unchallenged, post-Founding practice of regulating firearms in public
present-day Florida law forbidding Under-21s from purchasing any goods (including firearms) would not warrant Second Amendment scrutiny because it‘s not a firearm-specific regulation. That‘s obviously wrong. And Bruen confirms the error: we focus on “whether modern and historical regulations impose a comparable burden on the right of armed self-defense.” 597 U.S. at 29 (emphasis added). Here, they do. Both the common law and Florida‘s law prevent Under-21s from purchasing firearms. That the common law “practically prohibit[ed]” them from doing so through a series of indirect legal rules, Reese, 127 F.4th at 597, while Florida‘s law does so through a direct, statutory prohibition does not change the fact that the burden is the same. And it‘s the burden, not the formalities of the legal scheme that imposes it, that matters. See, e.g., Shelley, 334 U.S. at 17-18, 21; United States v. Classic, 313 U.S. 299, 313 (1941) (considering “the practical operation of the primary law“); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (opinion of Black, J.) (“The effect of the whole procedure . . . is to do precisely that which the Fifteenth Amendment forbids.“). After all, “a government official cannot do indirectly what she is barred from doing directly.” Nat‘l Rifle Ass‘n of Am. v. Vullo, 602 U.S. 175, 190 (2024).
parks confirmed public parks fell within the longstanding tradition of regulating firearm use in sensitive places).
When we define the “controlling principle” that way, it includes both our Founding Era practices and the consistent, longstanding nineteenth-century regulations. This over-arching time-honored tradition, stemming from the Founding Era through modern times, reinforces our understanding of the Second Amendment‘s original meaning, Bruen, 597 U.S. at 35-37; Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring); id. at 738 (Barrett, J., concurring)—that governments may use their police powers to bar the sale of firearms to Under-21s.
For these reasons, our history compels the conclusion that the Marjory Stoneman Douglas High School Public Safety Act comports with the preexisting limits on the preexisting right that the Second Amendment enshrined.
II. Modern science supports the common-law presumption that individuals under the age of 21 lacked sufficient reason and decisionmaking ability to engage in risky or potentially dangerous activities.
To determine whether a “challenged regulation is consistent with the principles that underpin our regulatory tradition,” we ask whether the regulation and its historical analogues share the same “why“—that is, whether the Founders and the later legislature that enacted the law at issue created those restrictions on the right to keep and bear arms “for similar reasons.” Rahimi, 602 U.S. at 692. As I‘ve mentioned (a few times by now), the Majority Opinion explains that the Founding Era‘s “why” for the original impediments to Under-21s’ ability to buy guns was that Era‘s belief that Under-21s “lacked the reason and judgment necessary to be trusted with legal rights.” Maj. Op. at 15.
Modern medical research confirms that the Founders were on to something.6 As it turns out, biology objectively establishes what generations of Americans have noticed the effects of since the republic began: Before the age of 25, a person‘s brain hasn‘t fully developed, and the area responsible for impulse control, delayed
gratification, and reasoned decisionmaking—especially under stress—is not what it will be once development finishes.
I divide this Part into two sections. Section A summarizes the thinking at the Founding about Under-21s’ reasoning and decisionmaking abilities. And Section B explains how modern science bears those thoughts out and shows the biological basis for the behavior Florida invoked as the “why” underlying its law barring the sale of firearms to Under-21s.7
- The common law restricted Under-21s’ rights, including their access to firearms, because it presumed their decisionmaking abilities had not fully developed.
To recap, at the Founding, “the law imposed age limits on all manner of activities that required judgment and reason.” Ent. Merchants Ass‘n, 564 U.S. at 834 (Thomas, J., dissenting). As the Majority Opinion meticulously recounts, see Maj. Op. at 14-18, the Founding Generation believed that individuals didn‘t accumulate the intellectual ability to make sound decisions before reaching a
certain age.8 And to that generation, all those who hadn‘t yet attained that age were treated as “infants.”
Professor Cooley explained that the Founding Generation considered “[t]he infant of tender years [a]s wanting in competency, but . . . daily acquiring it,” until the “fixed” time “at which he shall conclusively be presumed to possess what is requisite.” COOLEY, supra, at 41. And as the Majority Opinion highlights, Gouverneur Morris, a signer of the Constitution and drafter of the Preamble, cautioned that so-called “infants” “want prudence” and “have no will of their own.” Maj. Op. at 15 (quoting 4 THE WRITINGS OF JAMES MADISON 119 (Gaillard Hunt ed., 1903) (Constitutional Convention, August 7, 1787)).
The Founding Era thought the “fixed” age when “infants” acquire sufficient “competency” was at least 21. See, e.g., 1 BLACKSTONE, supra, at *464 (“So that full age in male or female, is twenty one years, . . . who till that time is an infant, and so styled in law.“); 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW *233 (O. W. Holmes, Jr. ed., 12th ed. 1873) (“T[he] necessity of guardians
results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years.“); JOHN LOCKE, TWO TREATISES OF GOVERNMENT 324-28 (Peter Laslett ed., Cambridge 1960) (observing that the rights of Under-21s could be restricted because they had not achieved a “state of Reason“). As a result, Under-21s effectively could not contract, buy goods on account, or even earn their own money—all because the Founding Generation did not think they enjoyed enough reasoning ability to handle those responsibilities properly.
In fact, in some cases, our Founders thought the “fixed” age even higher. The Constitution provides the clearest example. Its original iteration mentions age only three times: when it sets the minimum age requirements for congressional representatives, senators, and the President. See, e.g.,
Nicholas Collin, who was “a noted political writer,” United States v. Williams, 113 F.4th 637, 655 (6th Cir. 2024), explained, “[a]t the age of 25 the heat and hurricanes of youth are over,” and “a considerable stock of moral knowledge must also have been acquired” so that any “youthful errors . . . will probably be reclaimed
by maturing reason.”9 Foreign Spectator, PHILADELPHIA INDEPENDENT GAZETTEER (Sep. 22, 1787), reprinted in 32 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 185, 187 (John P. Kaminski et al., 2019). And another commentor recounted that the Constitution set the minimum age for representatives at twenty-five “in order to provide, as far as possible for wisdom, as well as integrity in this government.” CHARLESTON CITY GAZETTE (Apr. 2, 1788), reprinted in 27 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 235, 240 (John P. Kaminski et al. eds. 1976).
These examples show that, based on their everyday experiences growing up and later dealing with younger Americans, the Founding Generation perceived age 21—and sometimes even older ages—to define the point at which individuals gain enough knowledge, experience, and maturity to make better choices.
- Modern medical science confirms our Founders’ conclusion that individuals under the age of 21 have not fully developed their reasoning and decisionmaking abilities.
What we now know to be scientific fact explains what the Founding Generation perceived. Humans’ brains generally don‘t fully develop until the age of 25.
The past few decades have brought “[s]ignificant progress . . . in understanding the brain‘s regional morphology10 and function during adolescence.” Mariam Arain et al., Maturation of the Adolescent Brain, 9 NEUROPSYCHIATRIC DISEASE & TREATMENT 449, 449 (2013). It is now “well established that the brain undergoes a ‘rewiring’ process” that‘s not complete until about the age of 25. Id. at 451.
To understand how this process occurs, we must know some basic information about how the brain functions.
I begin with neurons. Neurons are nerve cells that make up the brain. Joan Stiles & Terry L. Jernigan, The Basics of Brain Development, 20 NEUROPSYCH. REV. 327, 329 (2010). They gather and transmit electrochemical signals in the body and within the brain to tell the body and brain what to do. Id. Nerve cells are not physically connected to one another. Rather, a small gap exists between them. That small gap is called a synapse, and, using neurotransmitters, nerve cells send and receive electrochemical signals over the synaptical gap. See id. at 329, 338; Thomas C. Südhof, Towards an Understanding of Synapse Formation, 100 NEURON 276, 277 (2018).
A neuron transmits the signals over a longer part of the neuron called the axon, which “act[s] a little like [a] telephone wire[].”
Styles & Jerigan, supra, at 329-30. The axon, in turn, receives protection from a layer called a myelin sheath, which covers the axon like “insulation on a telephone wire.” Id. at 330. The myelin sheath allows the electrochemical signals to travel quickly and efficiently between neurons, maintaining the signal‘s strength as the signal travels. Id.
But humans are not born with all their neurons. And adults do not have all the neurons they had when they were children. Rather, brains develop in a recurring cycle: neuron growth followed pruning and myelination. Arain et al., supra, at 452. After a brain develops neurons, it must prune some of them. Id.; Styles & Jerigan, supra, at 328. Pruning eliminates excess production of neurons and brain matter created during human growth periods. The brain determines which neurons to prune based on lived experiences. Id. at 328, 338. Put simply, the brain removes unused neurons so that it can operate economically. Also, when new neurons develop, they don‘t come with their myelin sheath, the insulation that facilitates signal transmission. The myelin sheath grows separately. The process by which neurons gain their myelin sheath, called myelination, also happens in the brain after neuron growth. See Arain et al., supra, at 452.
If you‘ve hung in there so far, we must next consider how the recurring process of brain growth, pruning, and myelination during humans’ first 25 years of life affects their reasoning ability, impulse control, and maturity. The first major phase of brain growth, pruning, and myelination happens during infancy and
“preschool.” Styles & Jernigan, supra, at 328. By age 6, human brains reach 90 percent of their adult volume. Id. But structural changes in brain matter continue throughout childhood and adolescence. Id.
The second period of neuron growth happens just before puberty. Arian et al., supra, at 452. That surge is similar to the one in infancy. The brain‘s grey matter thickens, neurons grow, and the brain begins to rewire itself. Id. That rewiring occurs when puberty begins and can last until about age 24 years, and it is especially prevalent in the prefrontal cortex. Id. The prefrontal cortex is responsible for, among other things, planning, decisionmaking, and problem solving. Id. at 453. So the process of pruning and myelination in the adolescent period “allows for multitasking, enhanced ability to solve problems, and the capability to process complex information.” Id. at 452. It also affects individuals’ ability to “exercise good judgment” when they face “difficult life situations.” Id. at 453.
But the prefrontal cortex is one of the last parts of the brain to mature, and it does not complete that process until near the age of 25. Id. at 451-53. So those under that age can struggle with functions the prefrontal cortex controls. Those functions include decisionmaking in stressful or emotional situations, id. at 454-54, impulse control and delayed gratification, id. at 455-56, and moderating the influence of societal pressures, such as those on social media, id. at 456. Accord WHITE PAPER PROJECT TEAM, CTR. LAW, BRAIN & BEHAVIOR, WHITE PAPER ON THE SCIENCE OF LATE
ADOLESCENCE 12-13 (2022) [hereinafter WHITE PAPER ON THE SCIENCE OF LATE ADOLESCENCE] (“Research findings demonstrate that individuals ages 20-30 have more disrupted working memory during periods of emotional stimulation, suggesting that emotional contexts can compromise their cognition . . . .“).
And even within the under-25 universe, the prefrontal cortex functions of 18-to-21-year-olds are materially less developed than those of 22-to-25-year-olds. In one study, for instance, researchers exposed age groupings of those under 25 to “threat states” in which participants anticipated the possibility of hearing an “aversive sound.” Id. at 14. In response, 18-to-21-year-olds showed patterns of brain activity that were “more similar” to those of 13-to-17-year-olds than they were to those of 22-to-25-year-olds. Id.
Similarly, studies have shown that “adolescents are more likely to prioritize immediate rewards over long-term outcomes.” Id. at 15. That may explain why those between the ages of 14 and 21 “are more likely to engage in . . . dangerous behavior resulting in unintentional injuries.” Id. at 1, 15. By contrast, when making decisions, “[o]lder individuals (ages 25-31)” are “more likely to simultaneously activate both the striatum and prefrontal cortex,” resulting in “a decreased tendency to prefer immediate rewards.” Id. at 16. In other words, as the prefrontal cortex develops, people act “with reduced impulsivity” and make more “future-oriented” decisions. Id.
In sum, the biological evidence shows that “the adolescent brain is structurally and functionally vulnerable to environmental stress” and “risky behavior” in a way that the fully developed brain wouldn‘t be. Arian et al., supra, at 458; see BAFTE, 700 F.3d at 210 n.21 (“[M]odern scientific research supports the commonsense notion that 18-to-20-year-olds tend to be more impulsive than young adults aged 21 and over.“).
Besides the biological evidence, the sociological evidence reveals the devastating consequences that the lesser maturity of Under-21s’ brain development can wreak.
For instance, those under 25 are far more likely than other age groups to commit suicide. Indeed, suicide accounts for a higher percentage of deaths for 18-to-24-year-olds than for any other age group. WISQARS Fatal and Nonfatal Injury Infographics, CTRS. DISEASE CONTROL & PREVENTION, https://perma.cc/G2FQ-QEXM. The problem is so severe when it comes to 18-to-20-year-olds that from 2001 to 2022, suicide was the third-most-common cause of death among that group (behind unintentional injury and homicide). WISQARS Leading Causes of Death Visualization Tool, CTRS. DISEASE CONTROL & PREVENTION, https://perma.cc/F46Z-4KG5.
And the impulse-control problems Under-21s experience because their prefrontal cortexes have not yet fully developed only add to this tragic statistic. Close to 25 percent of near-lethal suicide attempt survivors aged 13-to-34 reported that fewer than five minutes passed between their decisions to attempt suicide and
their suicide attempts. Thomas R. Simon et al., Characteristics of Impulsive Suicide Attempts and Attempters, 32 (SUPP.) SUICIDE & LIFE-THREAT. BEHAV. 49, 50-52 (2001); accord Eberhard A. Deisenhammer et al., The Duration of the Suicidal Process: How Much Time Is Left for Intervention Between Consideration and Accomplishment of a Suicide Attempt?, 70 J. CLINICAL PSYCHIATRY 19, 20 (2009) (47.6 percent of suicide survivors recount that fewer than ten minutes had passed between their decision to attempt suicide and their attempt).
That statistic takes on added urgency when it comes to firearms. The American Public Health Association has described firearm access as “a key risk factor for suicide.” Reducing Suicides by Firearms, AM. PUB. HEALTH ASSOC. (Nov. 13, 2018), https://perma.cc/97BN-U5LH. To give a sense of the breadth of the problem, those with access to firearms are more than two to ten times more likely to commit suicide than those without access to them. Matthew Miller & David Hemenway, Guns and Suicide in the United States, 359 NEW ENGL. J. MED. 989, 990 (2008). For 16-to-21-year-olds, in 2021, a whopping more than half of the 2,735 suicide deaths among that age group involved firearms. The Effects of Minimum Age Requirements, RAND CORP. (July 16, 2024), https://perma.cc/MDJ6-FQ3H. Put simply, the ability to buy a firearm may mean the difference between life and death for struggling Under-21s who are prone to making life-altering or -ending decisions because of a developmental predisposition towards short-term thinking.
And the risks Under-21s’ access to firearms create don‘t end with Under-21s themselves. As the Marjory Stoneman Douglas mass shooting tragically exemplifies, those under the age of 21 are responsible for some of the most deadly mass shootings in United States history.11 Not only that, but “[f]irearm homicides and violent crimes disproportionately involve individuals under age 21 . . . .” RAND CORP., supra. In fact, although those between the ages of 12 and 24 comprise only 17 percent of the population, in 2020, they accounted for about 44 percent of the firearm homicides for which the age of the shooter was known. Id.
The numbers are even worse for 18-to-21-year-olds specifically. In Florida in 2020, 18-to-20-year-olds were perpetrators of fatal shootings “at three times the rate of 16-year-olds,” “nearly twice the rate of people in their 20s,” and “about three times the
rate of a person in their 30s.” Samantha Putterman, What Does the Data Show on Deadly Shootings by 18- to 20-Year-Olds?, TAMPA BAY TIMES (Feb. 7, 2024), https://perma.cc/7MP9-MNGA (cleaned up). And a survey of convicted gun offenders in 13 states found that 17 percent of the offenders—nearly a fifth—would have been prohibited from obtaining firearms when they committed their crimes if the minimum legal age in that state had been 21 years. Katherine A. Vittes et al., Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership, 19 INJ. PREVENTION 26, 29 (2013). Those figures are “consistent with the historical pattern of gun homicides” over the past several decades. See U.S. DEP‘T OF JUST. & U.S. DEP‘T OF THE TREASURY, GUN CRIME IN THE AGE GROUP 18-20 2 (1999) (“In 1997, . . . [o]f all gun homicides where an offender was identified, 24 percent were committed by 18 to 20 year olds.“).
In short, modern medicine and social science confirm our Founders’ intuition that Under-21s don‘t enjoy full “reason and decisionmaking ability.” Ent. Merchants Ass‘n, 564 U.S. at 826 (Thomas, J., dissenting). In other words, what the Founders observed and experienced, science validates. So the reasons a state may choose to limit Under-21s’ access to firearms—their lesser reasoning ability and impulse control—are not only “similar” to those of the Founding generation, Rahimi, 602 U.S. at 692, they are the same. Only now we can prove the scientific basis for what the Founders saw and lived.
III. We don‘t need to decide now whether the Reconstruction Era is the proper period against which we should
assess our Nation‘s tradition of firearm regulation in the case of silence or a conflict with the Founding Era, but when the time comes to make that decision, there are good reasons to rely on the right to keep and bear arms as Americans understood it during Reconstruction.
I agree with the Majority Opinion that we “need not and do not decide in this appeal how to address a conflict between the Founding-era and Reconstruction-era understandings of the right” to keep and bear arms because “the law of both eras restricted the purchase of firearms by” Under-21s. Maj. Op. at 14; accord Bruen, 597 U.S. at 38; Rahimi, 602 U.S. at 692 n.1. But to the extent that the Majority Opinion can be understood to suggest that the Founding Era history would trump Reconstruction Era sources where the two conflict or in the case of historical silence during the Founding Era, I write to emphasize that at least four good reasons exist not to choose the preeminent historical period now.
First, we don‘t need to identify which historical period prevails here because both historical periods give us the same answer: that Florida‘s law comports with our nation‘s tradition of firearm regulation. Second, the quality and quantity of authorities that stack up on the side of Reconstruction Era history is substantial, and we should fully and deeply consider them. Third, the Supreme Court has explained that, generally, the Constitution‘s “meaning is fixed according to the understandings of those who ratified it.” Bruen, 597 U.S. at 28. So when it comes to rights that the Fourteenth Amendment incorporated against the States, it‘s the
understandings of those who ratified the Fourteenth Amendment that would seem to matter. And fourth, jurisprudence on individuals’ fundamental Second Amendment rights is still in its relative infancy (indeed, if we start with Heller, it‘s an Under-21). Allowing time for the law to develop and percolate through the courts until a conflict actually arises will allow us to reach a well-thought-out answer to this important constitutional question. I explain my thinking more below.
First, as the Majority Opinion explains, no conflict between the Founding Era and Reconstruction Era histories requires reconciliation here. Maj. Op. at 13-14. We should wait until one does before resolving the conflict question because context might better crystallize the benefits and disadvantages of each approach. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (explaining courts do “not anticipate a question of constitutional law in advance of the necessity of deciding it” and do “not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (cleaned up)).
Second, several of our sister circuits, as well as many well-known academics, believe that Americans’ understanding of the right to keep and bear arms when they ratified the Fourteenth Amendment ought to inform our historical inquiry. Indeed, many have suggested Reconstruction Era evidence should control in silence or a conflict. See, e.g., Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Sykes, C.J.); AKHIL REED AMAR, THE BILL OF RIGHTS:
CREATION AND RECONSTRUCTION 223 (1998) (“[W]hen we ‘apply’ the Bill of Rights to the states today, we must first and foremost reflect on the meaning and spirit of the amendment of 1866, not the Bill of 1789.“); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment was Ratified in 1868: What Rights are Deeply Rooted in History and Tradition?, 87 TEX. L. REV. 7, 115-16 (2004); Josh Blackman & Ilya Shapiro, Keeping Pandora‘s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO J.L. & PUB. POL‘Y 1, 52-55 (2010). And other courts have held, at a minimum, that Reconstruction Era evidence provides a “fertile ground” for ascertaining our Nation‘s tradition of firearm regulation. Antonyuk, 120 F.4th at 973-74; Wolford v. Lopez, 116 F.4th 959, 980 (9th Cir. 2024).
The quantity and quality of this authority supporting the notion that the Fourteenth Amendment understanding should govern ought to give us pause before jumping too hastily to the conclusion that the Founding Era history (or lack thereof) necessarily controls in all circumstances. So we should answer the question only when it is squarely presented and we must resolve it. And even then, we should carefully study the arguments these authorities have raised for considering Reconstruction Era history before determining which period governs.
Third, the Constitution‘s “meaning is fixed according to the understandings of those who ratified it,” Bruen, 597 U.S. at 28, because the consent of those who voted for the Constitution is what give it—and us, as Article III courts exercising the judicial power
that the Constitution authorizes—legitimacy. See, e.g., Whittington, supra, at 381; Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849, 854, 862-84 (1989); see also Heller, 554 U.S. at 635 (referring to the Second Amendment as the “very product of an interest balancing by the people“). That‘s the reason “constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Bruen, 597 U.S. at 34 (cleaned up).
And here, in a challenge against state action, it is the
Reconstruction Era states to have made the Second Amendment (or any other amendment) applicable to themselves if they understood that they were imposing on themselves constructions of the first eight amendments that they disagreed with.
And fourth, modern Second Amendment jurisprudence is in its infancy. The Supreme Court only recognized an individual right to keep and bear arms in 2008. Heller, 554 U.S. at 635-36. It only held that the Fourteenth Amendment incorporates that right against the states in 2010. McDonald, 561 U.S. at 791. And it only announced the historical inquiry for reviewing a firearm regulation about three years ago, after concluding the circuit courts
So the law is unsettlеd, and courts across the country are trying to figure out just how to faithfully apply the right to keep and bear arms. See Rahimi, 602 U.S. at 691 (“[S]ome courts have misunderstood the methodology of our recent Second Amendment cases.“); id. at 741 (Jackson, J., concurring) (“Today‘s effort to clear up misunderstandings is a tacit admission that lower courts are struggling.” (cleaned up)). Allowing more of our sister circuits, and potentially the Supreme Court, to contribute to Second Amendment jurisprudence before we tackle whether the Founding Era or Reconstruction Era history governs in a conflict or silence in the Founding Era will aid in our careful consideration of the issue when a case requires that we resolve it.
For all these reasons, the Majority Opinion appropriately chooses to wait to decide whether Founding Era history should trump Reconstruction Era sources where the two conflict or in historical silence during the Founding Era.
IV. Conclusion
Today, the Majority Opinion correctly concludes that the Marjory Stoneman Douglas High School Public Safety Act does not violate the Second and Fourteenth Amendments. Since the Founding, Americans have restricted the sale of firearms to Under-21s, whether through common-law limitations on commercial rights or, once those limitations faded away, direct criminal prohibitions. And since the Founding, Americans have limited Under-21s’ ability
I concur in the Court‘s judgment and join its opinion in full. I write separately to highlight an important methodological issue that, I‘ll confess, has become something of a hobby horse of mine: the uses and misuses of post-ratification history in originalist decisionmaking.
I‘ve been a vocal and persistent critic of courts’ reliance on post-ratification history—sometimes euphemistically called “tradition“—to interpret constitutional provisions. See Kevin C. Newsom, The Road to Tradition or Perdition? An Originalist Critique of Traditionalism in Constitutional Interpretation, 47 Harv. J.L. & Pub. Pol‘y 745, 746–55 (2024). In short, I regard “latter-day-but-still-kind-of-old-ish understandings” as having arisen too late in the day to inform a proper originalist analysis. See United States v. Jimenez-Shilon, 34 F.4th 1042, 1051 n.2 (11th Cir. 2022) (Newsom, J., concurring). The reason: “We originalists say that any particular constitutional provision should be interpreted in accordance with its common, ordinary meaning at the time it was adopted and ratified. If we really mean that, then then by definition, it seems to me, evidence that significantly post-dates that provision‘s adoption isn‘t just second-best—it‘s positively irrelevant.” Newsom, supra, at 754. Simply put, we have what Justice Barrett has aptly called a “timing problem.” Samia v. United States, 599 U.S. 635, 655 (2023) (Barrett, J., concurring in part and concurring in the judgment).
In its decision today, the Court properly focuses on sources from the Founding era to conclude that Florida‘s law doesn‘t
Let‘s start with the basics. Originalism is a text-focused enterprise. Accordingly, “the focus of any proper originalist inquiry is the document itself: the duly adopted and ratified text is the only thing that counts as law.” Newsom, supra, at 748. In some cases, the Constitution‘s language is so “strikingly clean” that there‘s little need for a deep historical dive. Akhil Reed Amar, America‘s Constitution, at xi (2005); see also United States v. Rahimi, 602 U.S. 680, 715–16 (2024) (Kavanaugh, J., concurring). There‘s not much use, for instance, in parsing the ratification debates in order to confirm that Senators in fact serve six-year terms or that the President must actually be at least 35 years old. See
Oftentimes, though—as in this case—the Constitution‘s meaning doesn‘t leap off the page, fully formed. In such circumstances, those (like me) who think that our interpretive lodestar is
By definition, then, later-breaking evidence—post-ratification evidence—“cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1, 66 (2022). That much, I think, is uncontroversial—at least among originalists: If the post-ratification history is at odds with the Founding-era history, the former has to give way.
I needn‘t attempt here to catalog the ways in which post-ratification history might be made relevant (although I suspect they are few and far between). I‘ll simply note that I think this case exemplifies one of them. At least in the circumstances here, the post-ratification history helps us avoid mistaking the absence of a precisely analogous Founding-era regulation for the existence of a substantive constitutional right. See Rahimi, 602 U.S. at 739–40
* * *
Post-ratification history has no particular value of its own—at least to an originalist analysis. It enters the stage only if the
Today, the majority faithfully applies United States v. Rahimi, using “a historical inquiry calibrated to reveal something useful and transferable to the present day.” 602 U.S. 680, 702 (2024) (Sotomayor, J., concurring). The law, history, and common sense all point to the same conclusion: Florida‘s law preventing its citizens under twenty-one from purchasing firearms is consistent with our nation‘s tradition of allowing states to impose age-based restrictions on the purchase of firearms.
I write separately as a Florida judge who is puzzled by some of my dissenting colleagues’ inconsistent treatment of school safety issues. Just two years ago, they insisted “when school authorities have prudently assessed and addressed an issue that affects student welfare, we should pay attention.” Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 802 (11th Cir. 2022) (en banc). Based solely on the school district‘s conclusory references to student “safety” and “privacy,” the Adams majority embraced the “important governmental objective in protecting students’ privacy interests in school bathrooms.” See id. at 797, 805.
But many of my colleagues who stressed the importance of protecting Florida schoolchildren when using school bathrooms looked the other way when Florida passed a law “to comprehensively address the crisis of gun violence, including but not limited to, gun violence on school campuses.” 2018 Fla. Laws. 10.
Despite Rahimi‘s guidance, the dissenters continue to demand a “historical twin.” 602 U.S. at 701. In doing so, they find
I believe I am not alone when I say I am more concerned about high school seniors purchasing assault rifles than I am about which bathroom they use. I “remain troubled by Bruen‘s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today.” Rahimi, 602 U.S. at 706 (Sotomayor, J., concurring). And I believe the conflicting viewpoints in these two cases exemplify this problem.
I.
On February 14, 2018, a nineteen-year-old gunman walked into Marjory Stoneman Douglas High School in Parkland, Florida. He used a legally purchased AR-15 semiautomatic rifle to open fire into four classrooms—killing fourteen students and three staff members, and seriously wounding many others.
Less than a month after the deadliest high school shooting in our country‘s history, Florida lawmakers approved the first gun
Among other safety measures, the Marjory Stoneman Douglas Public Safety Act (the Act) raised the minimum age for firearm purchases from 18 to 21.
The gun violence epidemic in America has only gotten worse since the Act was passed. Since 2020, firearms have been the leading cause of death in the United States for children and adolescents. U.S. Surgeon General, Advisory, Firearm Violence: A Public Health Crisis in America 4 (2024). More than half of 14 to 17-year-olds in the United States report that they are worried about a shooting happening at their school and a school near them. Id. at 15.
II.
“Imagine the sense of loss that afflicts not only the moment, but the lifetimes of those families and friends affected. And then imagine that you mobilize and lobby your representatives to pass preventative legislation, only to be told by a court that your Constitution renders you powerless to save others from your family‘s fate.” Bianchi v. Brown, 111 F.4th 438, 472 (4th Cir. 2024). Today, the majority‘s opinion honors the efforts of the Parkland community and the will of Florida‘s constituents. And does so in a way that is faithful to Bruen and Rahimi.
With no place in its analysis for the overwhelming data of the dangers that unregulated gun access pose to Florida‘s present
Of course, part of this meandering search for historical evidence is a product of how we must analyze Second Amendment cases. Prior to Bruen, circuits analyzing Second Amendment issues considered both historical practice and contemporary data. See, e.g., Horsley v. Trame, 808 F.3d 1126, 1134 (7th Cir. 2015); Nat‘l Rifle Ass‘n of Am. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives (BATFE), 700 F.3d 185, 200–03, 208–10 (5th Cir. 2012). But now, “courts evaluating a Second Amendment challenge must consider history to the exclusion of all else.” Rahimi, 602 U.S. at 744 (Jackson, J., concurring).
The problems with ”Bruen‘s game of historical Where‘s Waldo” have been well documented. United States v. Love, 647 F. Supp. 3d 664, 670 (N.D. Ind. 2022); see also, e.g., Rahimi, 602 U.S. at 742 n.1 (Jackson, J., concurring). Just “canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task.” Rahimi, 602 U.S. at 744–45 (Jackson, J., concurring); see also Bruen, 597 U.S. at 107 (Breyer, J., dissenting) (noting courts are “staffed by lawyers, not historians“). And
Yet supporters of “history-and-tradition” tests insist “[h]istory is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.” Rahimi, 602 U.S. at 718 (Kavanaugh, J., concurring). Its proponents argue that history “intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions.” McDonald, 561 U.S. at 805 (Scalia, J., concurring).
True, it is “comforting to believe that a search for ‘tradition’ involves nothing more idiosyncratic or complicated than poring through dusty volumes on American history.” Michael H. v. Gerald D., 491 U.S. 110, 137 (1989) (Brennan, J., dissenting). But “all history is summary.” Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1087 (1990). Reasonable people can, and do, disagree about the content and relevance of particular traditions. See, e.g., Rahimi, 602 U.S. at 740 (Barrett, J., concurring).
History is an “especially inadequate tool when it comes to modern cases presenting modern problems” a useful tool to “make it nearly impossible to sustain common-sense regulations necessary to our Nation‘s safety and security.” Bruen, 597 U.S. at 112‒13
III.
We do not—because we cannot—analyze equal protection claims like Adams using an analysis based purely in history and tradition. Our nation‘s “history and tradition” of discrimination is what led to the ratification of the Equal Protection Clause in the first place. States cannot point to our nation‘s long history of segregating schools or banning interracial marriage to justify twenty-first century laws barring such marriages or segregating schools. T. Cary Franklin, History and Tradition‘s Equality Problem, 133 Yale L.J. Forum 946, 966 (2024).
But even Adams illuminates how selective history unmoored from present-day data can be wielded to achieve judges’ preferred outcomes. There, a transgender male student used the boys’ restrooms at his high school for several weeks without any complaint from other boys. He was later consigned to the single-stall facilities, experiencing humiliation, embarrassment, isolation, and physical harm from this discriminatory treatment. Adams sued, arguing that his assignment to the gender-neutral bathrooms, and not to the boys’ bathrooms, violated the promise of the Fourteenth Amendment‘s Equal Protection Clause. Adams, 57 F.4th at 798. His
The majority criticized the district court that upheld Adams’ constitutional challenge for “misconstruing the privacy interests at issue, minimizing the factual and practical realities of how the sex-separated bathrooms operate, and discounting the parties’ stipulation that students and parents objected to any bathroom policy that would commingle the sexes out of privacy concerns, among others.” 57 F.4th at 806.
Yet none of these “factual and practical realities” included any evidence about actual privacy or safety issues. The majority opinion declared “without any basis” that a person‘s “biological sex” is comprised solely of chromosomal structure and birth-assigned sex. See id. at 832 (Jill Pryor. J., dissenting). In doing so, it disregarded “unchallenged findings of fact that reflect medical science” and oversimplified “the role of gender identity in determining a person‘s biological sex.” Id. at 844. The school districts did not present evidence about privacy or safety issues in their own schools, nor did they present any evidence that such harms were more likely to be caused by transgender students. Nor could they, because no such data exists.6
The majority turned to history instead, specifically, the “long tradition in this country of separating sexes in some, but not all, circumstances.” Id. at 801. It claimed, “the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence.” Id. at 805. It pointed to the fact that “sex-separation in bathrooms dates back to ancient times, and, in the United States, preceded the nation‘s founding.” Id.
Without any evidence, case law, or explanation of how the bathroom policy furthers student safety, history and the school‘s “conclusory and passing references to ‘student safety‘” were enough to override the Constitution‘s promise of equal protection. Id. at 853 (Jill Pryor, J., dissenting).
IV.
Rather than being used to apply Founding-era principles to modern problems, the history-and-tradition test, when applied as rigidly as the dissent advocates, forces us to apply Founding-era solutions to modern problems, and protect our students’ bathroom privacy more rigorously than their safety from firearms. The leading cause of death among children in this country is not their classmates using the “wrong” bathrooms. What the reasoning of the majority in Adams and the dissenters here have in common is allowing historical practices to unmoor them from present-day realities.
Judge Brasher convincingly explains why
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court explained the “standard for applying the Second Amendment.” 597 U.S. 1, 24 (2022).
When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command.
Id. (quotation omitted). Then, in United States v. Rahimi, the Court reiterated that we must “examine our ‘historical tradition of
The Supreme Court has also shown us how to apply its history-and-tradition test to Second Amendment challenges. In Bruen, the Court canvassed “a variety of historical sources from the late 1200s to the early 1900s” to determine if New York‘s licensing regime comported with this Nation‘s history and tradition of firearm regulation. Id. at 34. Importantly, in so doing, the Court principally reviewed direct, primary sources—statutes, cases, and treatises from the relevant historical eras that concerned disarmament of particular individuals (or disarmament for particular conduct)—before concluding that the New York licensing regime violated the Second and Fourteenth Amendments. See id. at 39–71. The Court repeated this methodology in Rahimi by reviewing direct, primary historical sources to determine the constitutionality of
Today, however, the majority breaks from the Supreme Court‘s command first by declining to review our Nation‘s “historical tradition of firearm regulation” from the Founding Era. Rahimi, 602 U.S. at 691 (emphasis added) (quoting Bruen, 597 U.S. at 17). The Supreme Court has not instructed us to consider an untethered “historical tradition“—the tradition must be of firearm regulation. Id. But the Commissioner and the majority‘s lоne Founding-era analogue is not a firearm regulation at all; it is a contract-law doctrine. That doctrine incidentally reached contracts for firearms because it reached contracts by minors for any non-necessity. Such a broadly applicable doctrine is a far cry from the historical regulations that the Court has considered as proper analogues. See id. at 693–700. Put simply, the Commissioner and the majority‘s analogue is not an “American gun law[]” as the Supreme Court has instructed us to consider. Id. at 693. I find no support for the use of such broad “history and tradition” as the majority employs.2
But second, even if we could look at “history and tradition” as broadly defined as the majority does, the majority‘s Founding-era analogue faces another problem: it is not “history and tradition” at all. Instead, the Commissioner and the majority‘s Founding-era analogue is just inferred economic effects. To be sure, the majority cites Founding-era rules, cases, and treatises to establish that at the Founding, those under 21 years old could void their contracts for non-necessary goods. And contracts, as the majority explains, form the basis of extending credit. From these facts, the majority
The problem is that the majority‘s historical sources do not directly support the majority‘s conclusion. Contract law has long recognized a difference between forming a contract and that same contract later being declared unenforceable. See, e.g., Shelby v. Smith‘s Heirs, 9 Ky. (2 A.K. Marsh.) 504, 512 (1820) (“Chancery will enforce contracts that are fair and certain, and it will often rescind them for mistake and fraud; but it will never make new contracts, or new model and add to those already made by the parties.“); Cochran v. Cummings, 4 U.S. (4 Dall.) 250, 250 (Pa. 1802) (declaring an already-formed contract “fraudulent and void” because the contract was procured through “a gross misrepresentation of facts, relating to the subject of [the] contract“). The majority‘s cited sources reveal only that after a credit contract was formed, the minor could, if he or she so chose, avoid his or her obligations. See 2 James Kent, Commentaries on American Law 191–93 (1827). None of the majority‘s Founding-era historical sources demonstrates that minors could not, as a legal matter, form contracts. By extension, none of the majority‘s Founding-era historical sources demonstrates that minors could not, as a legal matter, buy goods on credit.
Because the majority‘s sources only discuss the ex post facto effects of this voidability rule (i.e., that minors’ contracts could be declared unenforceable), these sources are merely indirect evidence that, ex ante, minors may have had practical difficulties
Instead, to move from the majority‘s indirect evidence of the effects of the voidability rule to the majority‘s conclusion that minors could not purchase non-necessary goods on credit, the majority simply declares it to be so. In support, the majority cites one modern historian who agrees that “it became almost impossible [in the early 19th century] for children to form any contracts,” and “infants [were] effectively unable to form contracts.” That historian, however, also fails to cite any direct evidence that minors could not form contracts. See Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority 271 (2005). Instead, like the majority, the historian simply infers the ex ante economic effects of the voidability of minors’ contracts for non-necessities. See id. at 270–71. Thus, the majority‘s key Founding-era analogue for Bruen purposes is nothing more than the majority‘s economic inference from indirect evidence accompanied by hollow citations.
If the majority had faithfully applied Bruen‘s history-and-tradition test as applied in Rahimi, the majority would have found direct, contemporaneous historical evidence that minors at the Founding could and did purchase goods, including firearms, on
This historical evidence dooms the majority‘s conclusion that Founding-era contract law is sufficiently analogous to
Once this analogue fails, the Commissioner‘s case fails. I agree with the majority and with Judge Brasher that our historical focus should be on the Founding Era. But this contracts doctrine is the Commissioner‘s lone Founding-era analogue. The remainder of the majority‘s Founding-era discussion is of laws and rules that merely “confirm” a conclusion the majority has already drawn. Indeed, Judge Brasher shows how these early militia laws and university rules cannot, by themselves, be historical analogues for
In this case, the Commissioner bore the burden of demonstrating that
LAGOA, Circuit Judge, joined by BRANCH, Circuit Judge, dissenting:
On a near-categorical basis, Florida prohibits ordinary, law-abiding adults between the ages of eighteen and twenty-one from purchasing firearms and imposes criminal sanctions on both the buyer and seller.
I write separately to respond to Judge Wilson‘s concurrence. In his concurrence, Judge Wilson attempts to draw connections
First, I address the obvious analytical flaws in Judge Wilson‘s concurrence. The right of individual, law-abiding adults to keep and bear arms is an expressly guaranteed constitutional right. See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); Bruen, 597 U.S. at 31–32. The desire of minor students to use a public-school bathroom assigned to the opposite sex is not.1 Because individual rights guaranteed under
Moreover,
Additionally, Adams arose in the K-12 public-school context, where a minor‘s rights must be further balanced against the school‘s interest in exercising its “custodial and tutelary obligations.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995); see also Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (“[T]he constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings.“); Bd. of Educ. v. Earls, 536 U.S. 822, 830 (2002) (“A student‘s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.“). In Adams, this Court recognized that public schools operate in loco parentis to children and have special and weighty responsibility over them, which is why we held that “when school authorities have
But even outside of public schools, the “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince, 321 U.S. at 170. And that does not even begin to address the lack of any doctrinal or factual connection between the issues involved here and those in Adams. Analogizing guns to bathrooms is legally and historically incoherent.
Second, the concurrence is simply the expression of one judge‘s policy preferences. Judge Wilson asks the reader to consider “the pleas of Florida‘s high school children” for “stronger gun laws,” claims to know that his dissenting colleagues care more about “protecting Florida schoolchildren when using school bathrooms” than from “the crisis of gun violence . . . on school campuses,” and states that he is “more concerned about high school seniors purchasing assault rifles than [he is] about which bathroom they use.” All of this might make for an impassioned floor speech by an elected member of Florida‘s legislature in support of Florida‘s law, but, as the Supreme Court has admonished repeatedly, “we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.” Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 423 (1952).
Judges adjudicate the issues brought before them by the parties. Here, the majority opinion and the dissents grapple with the relevant historical record and the application of Supreme Court
Judge Wilson‘s concurrence offers a different approach, one that values judicial “will” over “judgment.” See The Federalist No. 78, at 465 (A. Hamilton) (Clinton Rossiter ed., 1961). So, it is somewhat ironic that his concurrence implies that the dissenters here and the Adams majority have cherrypicked the historical record to achieve their presumed preferred policy outcomes. The dissenting opinions here, which I join in full, faithfully follow the Supreme Court‘s two-step framework laid out in Bruen and Rahimi, beginning with the presumрtive constitutionality of conduct covered by the plain text of the Second Amendment, and ending with the determination that Florida‘s blanket prohibition is inconsistent with the Nation‘s history and tradition of firearm regulation. See Bruen, 597 U.S. at 17. Likewise in Adams, this Court straightforwardly applied intermediate scrutiny to a governmental policy that classified on the basis of sex and engaged in a statutory analysis using the plain and ordinary meaning of “sex” in 1972, when Title IX was passed. 57 F.4th at 803–15. Far from imposing any policy views on the American people, see Rahimi, 602 U.S. at 718 (Kavanaugh, J., concurring), Adams noted that “[w]hether Title IX should be
By contrast, Judge Wilson‘s suggestion that we should be “more concerned” about some issues than others is far more likely to be wielded to achieve judges’ preferred outcomes. But it is not “for courts to judge the wisdom, fairness, or logic of legislative choices,” F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993), or to compare policies and announce which ones are beneficial and which ones are dangerous. Nor is it a judge‘s job to decide which of society‘s ills are more important than others and, on that basis, which are more deserving of our attention and protection. Our system of separation of powers assigns those responsibilities to Congress and the various state legislatures.
This Court‘s job is to follow the law; that is exactly what the dissenting opinions have done, although they reach a different result from the majority opinion and from Judge Wilson‘s preferred policy outcome. For the reasons stated above, and for all the additional reasons laid out in Judge Brasher‘s and Judge Branch‘s dissenting opinions, I respectfully dissent.
BRASHER, Circuit Judge, joined by BRANCH, LUCK, and LAGOA, Circuit Judges, dissenting:
This appeal asks whether the Second Amendment to the United States Constitution allows Florida to blanketly prohibit ordinary, law-abiding adult citizens between the ages of eighteen to twenty-one from purchasing any kind of firearm for self-defense. The majority opinion answers “yes.” The majority opinion does so because it concludes that Florida‘s ban is analogous to Founding-era laws that gave legal minors a defense to the enforcement of some contracts and required parents to provide guns to their militia-going children. But there is only the most superficial and insignificant similarity between these historical and modern policies. Whatever one thinks of the majority opinion‘s analogical reasoning, it is not the “text, history, and tradition” framework announced in N.Y. State Rifle & Pistol Ass‘n v. Bruen, 597 U.S. 1 (2022), and applied in United States v. Rahimi, 602 U.S. 680 (2024).
Under the Supreme Court‘s Second Amendment jurisprudence, we must first ask whether the prohibited conduct is encompassed by the text. In this case, we must decide whether citizens between the ages of eighteen and twenty-one are part of the “people” who have the right to keep and bear arms. And we must decide whether the right to keep and bear arms extends to the purchase of firearms. Neither the Commissioner of Florida‘s Department of Law Enforcement nor the majority opinion disputes that this first step is met in favor of the plaintiffs. Therefore, a presumption arises that Florida‘s ban is unconstitutional. See Bruen, 597 U.S. at 24.
In the absence of historical precedent, the Second Amendment does not allow for a categorical ban on the ability of law-abiding adults to purchase a firearm for self-defense. The majority opinion‘s contrary conclusion is hard to understand as anything other than a declaration that Second Amendment rights—alone among all our constitutional rights—start at the age of twenty-one. This conclusion splits with at least three sister circuits. See Reese v. BAFTE, 127 F.4th 583 (5th Cir. 2025); Lara v. Comm‘r, Pa. State Police, 125 F.4th 428 (3d Cir. 2025); Worth v. Jacobson, 108 F.4th 677, 688–92 (8th Cir. 2024).
To be clear, the Second Amendment allows policymakers to address important societal issues and respond to current events in ways that respect ordinary, law-abiding citizens’ rights. As the majority opinion recounts, the Florida Legislature in 2018 enacted a suite of reforms after the infamous school shooting at Marjory Stoneman Douglas High School. Those reforms were directed at protecting school campuses and disarming the dangerous and mentally ill. The key elements of that regulatory framework are not at issue in this case. No one in this case questions the constitutionality of laws that impose background checks, regulate unreasonably dangerous weapons, spend money on school safety, or disarm the violent or mentally ill. Unlike the purchase ban, none of those laws purport to disarm an entire class of law-abiding, nonviolent, mentally competent adult citizens.
Florida‘s purchase ban, however, sweeps in all ordinary, law-abiding adults between eighteen and twenty-one in the entire state. And the law flatly prohibits the purchase of every firearm, even those indisputably in common use for lawful purposes, such as hunting and self-defense. A law “broadly restrict[ing] arms use
I.
Florida law prohibits individuals from possessing or using firearms if they are violent, mentally ill, or otherwise unfit to operate a firearm. For instance, a firearm generally may not be possessed or used under Florida law by (1) any individual who has ever been convicted of a felony,
In 2018, in response to a shooting at Marjory Stoneman Douglas High School, Florida adopted a package of measures to address violence committed on school campuses by the mentally ill. See 2018 Fla. Sess. Law Serv. Ch. 2018–3, § 2. The Legislature announced its purpose as “providing law enforcement and the courts with the tools to enhance public safety by temporarily restricting firearm possession by a person who is undergoing a mental health crisis and when there is evidence of a threat of violence, and by promoting school safety and enhanced coordination between education and law enforcement entities at the state and local
The centerpiece of that legislation was a “red flag” law that “requires courts to proactively remove firearms from individuals (upon petitions filed by law enforcement agencies) who pose a significant danger to themselves or others.” Davis v. Gilchrist Cnty. Sheriff‘s Off., 280 So. 3d 524, 528 (Fla. Dist. Ct. App. 2019). The Florida courts routinely enforce that “red flag” law. See id.
One small piece of that legislation affects people who are not violent, incompetent, or mentally ill: it prohibits eighteen- to twenty-one-year-old adults from purchasing any firearm from any source. Specifically, it provides that “[a] person younger than 21 years of age may not purchase a firearm,” with narrow exceptions for certain occupations. See 2018 Fla. Sess. Law Serv. Ch. 2018–3, § 11 (codified as
Unlike other provisions in Florida law, this purchase restriction disarms a class of law-abiding, nonviolent, mentally competent adults. In Florida, the age of adulthood is eighteen. See
Not only does this purchase restriction disarm a class of law-abiding, mentally competent adults, it also disproportionately disarms adults who, in the words of the district court, “actually need firearms to defend themselves.” Because Florida allows young adults to possess and use guns if they can get them, the people most affected by the purchase restriction are adults who want to legally obtain a firearm but lack the connections to get one for free. As the district court explained, these adults “are likely independent” and “likely to have families and children of their own.” For example, the restriction on purchase means that a “20-year-old single mother living on her own [will] be unable to obtain a firearm for self-defense,” but an eighteen-year-old high schooler who lives with his
The National Rifle Association and an individual young adult sued the Commissioner of Florida‘s Department of Law Enforcement, who enforces the purchasing ban. The complaint alleged that Florida‘s law violates the Second and Fourteenth Amendments by “ban[ning] law-abiding, responsible, 18-to-21-year-old adult citizens from purchasing any firearm from any source.” See District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (holding that the Second Amendment protects an individual right to keep and bear arms); McDonald, 561 U.S. 742 at 791 (holding that the Fourteenth Amendment makes the Second Amendment applicable to the states).
Both sides moved for summary judgment. The district court ruled for the defendants. See Nat‘l Rifle Ass‘n of Am. v. Swearingen, 545 F. Supp. 3d 1247 (N.D. Fla. 2021). A panel of this Court affirmed. See Nat‘l Rifle Ass‘n v. Bondi, 61 F.4th 1317, 1332 (11th Cir. 2023). And a majority of the active judges on this Court voted to rehear the appeal en banc. See 72 F.4th 1346 (11th Cir. 2023).
II.
The Second Amendment provides that “[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.”
A.
Bruen‘s first step asks whether “the Second Amendment‘s plain text covers an individual‘s conduct.” 597 U.S. at 17, 24. There are several critical textual components at play here: “the right,” “the people,” and “keep and bear arms.” It is the plaintiff‘s burden at this first step to establish that he is a member of “the people” and that his conduct involves “keep[ing] and bear[ing] arms.” See id. at 17, 24, 31–33. If the plaintiff checks those boxes, a presumption arises that the plaintiff‘s conduct is protected by the “right” codified in the Constitution. Id.
The Commissioner does not dispute that ordinary, law-abiding citizens ages eighteen to twenty-one are part of “the people.” I agree. For starters, the Supreme Court essentially said as much in Heller. There, the Supreme Court said “‘the people’ . . . 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.” Heller, 554 U.S. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). In other words, the text presumptively covers “all Americans.” Bruen, 597 U.S. at 70. That definition obviously includes law-abiding citizens over the age of eighteen who have all the rights and responsibilities of adulthood.
Moreover, “the people” is a term of art used throughout the Constitution. See Worth, 108 F.4th at 688–90; United States v. Williams, 113 F.4th 637, 649 (6th Cir. 2024). Other Bill of Rights provisions that refer to “the people” have been held to protect eighteen- to twenty-one-year-olds. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (free speech); New Jersey v. T.L.O., 469 U.S. 325, 344 (1985) (unreasonable searches and seizures). And the absence of any age restriction in the Second Amendment stands in contrast to the many express age limitations in the Constitution‘s text. See, e.g.,
Just as the Commissioner does not dispute that “people” includes adults over the age of eighteen, the Commissioner also does not contest that the ability to purchase a firearm implicates the ability to “keep and bear” one. True, the challenged law does not facially prohibit or regulate the Second Amendment right, as articulated in Heller, “to possess and carry weapons in case of confrontation.” 554 U.S. at 592. But the “the Second Amendment [also] protects ancillary rights necessary to the realization of the core right to
Because the plaintiffs have carried their burden under Bruen‘s first step, Florida‘s law is presumptively unconstitutional.
B.
To overcome the presumption of unconstitutionality, Bruen‘s second step requires the Commissioner “to show that [Florida‘s ban] is consistent with this Nation‘s historical tradition of firearm regulation.” 597 U.S. at 34. The government‘s burden is to “affirmatively prove,” based on “historical evidence,” that an “enduring,” “representative,” and “comparable tradition of regulation” justifies the challenged law. Id. at 19, 24, 27, 30, 69. The historical analysis means that the challenged “law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.‘” Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 30). The most important part of the inquiry is
The Commissioner flunks this test. The Commissioner has presented no analogous Founding-era regulation that precluded young adults from purchasing firearms. The record of historical statutes the Commissioner did compile, which does not begin until the 1850s, does not establish a tradition of outlawing all firearms purchases by eighteen- to twenty-one-year-olds. These statutes were passed many years after the Founding, and they are meaningfully dissimilar from Florida‘s ban in ways that undermine the “how and why” analogy.
1.
I will start with the Founding era, which should be the focus in our analysis. As a matter of doctrine, this focus is most consistent with the Supreme Court‘s caselaw. The Founding-era understanding of the Bill of Rights controls for every other amendment. See, e.g., Crawford v. Washington, 541 U.S. 36, 42–50 (2004) (Sixth Amendment); Virginia v. Moore, 553 U.S. 164, 168–69 (2008) (Fourth Amendment); Nev. Comm‘n on Ethics v. Carrigan, 564 U.S. 117, 122–25 (2011) (First Amendment). And the Supreme Court has given every indication that the Founding era controls for the Second Amendment as well. See Rahimi, 602 U.S. at 692 (“if laws at the founding regulated firearm use to address particular problems, that
I will first discuss the way Founding-era laws addressed arms-bearing by persons between eighteen and twenty-one. Next, I will address the Commissioner‘s argument that Florida‘s ban is comparable to the voidability of contracts when undertaken with a legal minor.
a.
We know that “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting). But there are no Founding-era laws disarming anyone based on age.
Florida‘s law bans young adults from purchasing, among other things, rifles and shotguns used for hunting.
A well-armed American populace was about more than hunting, however—it was the official public safety policy of the day. Militia enrollment statutes obligated able-bodied men to keep certain arms and some minimum amount of ammunition in the home. Of particular relevance here, an extensive catalogue of colonial and state militia statutes establishes that eighteen- to twenty-one-year-olds were universally required to have access to firearms. See id. at 533–89. “Of the more than 250 militia statutes passed by the colonies and fledgling states, only one did not require militia service by eighteen-to-twenty-year-olds.” George Mocsary, Treating Young Adults as Citizens, 27 Tex. Rev. L. & Pol. 607, 624 (2023).
Eventually, in the 1792 Uniform Militia Act, Congress set the federal age cutoff for militia service at eighteen years old, and most states followed suit. Id. See generally Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 433 (4th Cir.), as amended (July 15, 2021), vacated as moot, 14 F.4th 322 (4th Cir. 2021) (examining historical state laws and concluding that “every state required enrollment at least by age 18 during the decades around ratification, which is the critical time for determining the historical meaning of the Second Amendment“). For their part, state statutes at the time required parents to provide arms for any minor called to serve in a state select militia. See Megan Walsh & Saul Cornell, Age Restrictions and the Right to Keep and Bear Arms, 1791–1868, 108 Minn. L. Rev. 3049, 3077–81, 3119 & nn.118–19 (2024) (hereinafter “Age Restrictions“); Kopel & Greenlee, Young Adults, at 506 n.56. But the federal legislation simply required all national select militia members to arrive armed for duty; there were no specific provisions about minors. See Patrick J. Charles, The 1792 National Militia Act, The Second Amendment, and Individual Militia Rights: A Legal and Historical Perspective, 9 Geo. J. L. & Pub. Pol‘y 323, 332 (2011).
The expectation of gun ownership by those between the ages of eighteen and twenty-one was important not only for repelling foreign invaders but also for keeping the domestic peace. A regular police force is a modern development. At the Founding, sheriffs or magistrates responsible for seeing that laws were
The majority opinion strains to minimize the historical fact that, at the time of the Founding, young adults between eighteen and twenty-one were members of the militia who were legally obligated to acquire a firearm. Maj. Op. at 36. The majority opinion can‘t dispute that, just a few months after the Second Amendment was ratified, Congress passed the Militia Act of 1792 which required males beginning at “the age of eighteen years” to “be enrolled in the militia” and for each one to “provide himself with a good musket or firelock . . . or with a good rifle.”
Like any other right, the right to bear arms is not unlimited. But the constant through all these regulations, from long before the Founding and enduring long afterward, is that the public expected those between the ages of eighteen and twenty-one to have access to firearms. “The meaning of the [Second Amendment] undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.” Heller, 554 U.S. at 617 (quoting Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880)). Unsurprisingly, then, there were no Founding-era laws prohibiting young adults from purchasing any firearm at all, much less anything like the total, criminal ban in
b.
Because nothing like Florida‘s ban has existed in our history, the Commissioner‘s appeal to the Founding era begins and ends with the recognition (which no one disputes) that twenty-one, not eighteen, was often the legal age of contracting capacity at the time of the Founding. See Maj. Op. at 14–22. That means, for example,
It is hard to see how the existence of this contract defense establishes a “comparable tradition of regulation” of “arms-bearing” with a “relevantly similar” “how and why” to Florida‘s ban on purchasing firearms. Bruen, 597 U.S. at 19, 20, 24, 27, 29, 30, 69. The Commissioner concedes that young adults at the Founding could purchase guns with money up front; the very thing they are prohibited from doing by Florida‘s ban. He concedes that they could even purchase guns on credit as long as the seller was willing to bear the risk that the contract might be voided, and the gun returned. And a contract for military service, which at the Founding required a firearm, could be enforced against someone under twenty-one-years-old, even if it was entered into against the will of his parents. See United States v. Blakeney, 44 Va. 405, 418 (1847) (per Baldwin, J.) (enforcing contract because “at the age of eighteen, a man is capable intellectually and physically of bearing arms“). See also id. at 441 (per Brooke, J.) (“I myself received a commission as first lieutenant in Col. Harrison‘s regiment of artillery, before I was
Moreover, the age of contracting doesn‘t reflect the Founding generation‘s views on the contours of the right to keep and bear arms, which is the right at issue here. The common law established no hard-and-fast age of legal capacity—the age depended on the activity. See 1 William Blackstone, Commentaries 453–54; see also id. at 453 (noting the “different capacities which [individuals] assume at different ages“). So a male could take an oath at age 12, be capitally punished in a criminal case at age 14, and serve as an executor at age 17. Id. at 453–54. A female could consent to marriage at age 12, choose a guardian at age 14, and serve as an executrix at age 17. Id. at 453. For that reason, the Founders’ views on the generic capabilities of “infants” at the time of the Founding say very little about who they expected to keep and bear arms. For example, the letter from John Adams and the speech from Gouverneur Morris cited in the majority opinion make the case that some people shouldn‘t vote; they have nothing to do with arms-bearing. See Maj. Op. at 15. “The fact that eighteen-to-twenty-year-olds were minors unable to vote (or exercise other civic rights) does not mean they were deprived of the individual right to self-defense.” Reese, 127 F.4th at 592.
But the biggest problem with the Commissioner‘s analogy is the mismatch in “how” the regulation operates, or in its “burden.” In Rahimi, the Court explained how to assess whether a challenged law and a historical comparator have a similar “burden” or
Here, by contrast, there is no comparison at all. Historically, people under the age of twenty-one had the right to void certain contracts if sued to perform. Legal minors under the age of eighteen in Florida still have that option today. But these transactions were not prohibited—either criminally or civilly. And the enforceability of contracts was a matter for the civil courts and private suits, not criminal law. Florida‘s ban, on the other hand, prevents young adults from purchasing firearms by criminalizing the transaction—making it a felony punishable by prison. Florida‘s restriction is broader—it prohibits purchases outright. And the penalty is harsher—it comes with the threat of criminal prosecution and imprisonment. The contract voidability defense protected minors from unscrupulous counterparties; Florida‘s law threatens to put eighteen-to-twenty-one-year-olds in jail for five years. The upshot is that Florida‘s ban is not comparable to these contracting rules: “[e]ven when a law regulates arms-bearing for a permissible reason . . . it may not be compatible with the right if it does so to an extent beyond what was done at the founding.” Id. at 692.
The majority opinion says that these Founding-era capacity-to-contract laws—which, again, still exist today as applied to those under the age of eighteen—were justified because “minors were subject to the power of their parents and depend[ent] on their parents’ consent to exercise rights and deal with others in society.” Maj. Op. at 18. That principle doesn‘t provide a comparable justification for Florida‘s ban. Florida has removed the “[t]he disability of nonage” for anyone “18 years of age or older,” which is why they can be held to long term contracts.
Eighteen- to twenty-one-year-olds in Florida today—in other words, adults—are analogous to legal adults at the time of the Founding, not legal minors. The Constitution‘s protections are not limited to those persons who are older than the most common age of majority in the 1700s. That reasoning is akin to “applying the protections of the [Second Amendment] right only to muskets and sabers” to the exclusion of modern weapons. Rahimi, 602 U.S. at 692. Like any other constitutional amendment, the Second Amendment “can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 597 U.S. at 28. Cf. Kyllo v. United States, 533 U.S. 27, 40 (2001) (“[W]e must take the long view, from the original meaning of the Fourth Amendment forward.“). Even if the Founders did not anticipate that eighteen-year-olds would lose the right to the care and protection of their parents and be treated as adults under the law, the Founders adopted a Second
The majority opinion criticizes the preceding paragraphs as applying an equal-protection analysis and proposes that, had the plaintiffs brought a claim under the Equal Protection Clause, it would be reviewed for “rational basis.” Maj. Op. at 35. The majority opinion is wrong in both respects. First, under Bruen, we must evaluate a law‘s justifications and its burdens to assess whether those justifications and burdens are comparable to an alleged historical tradition, which is what this section does. An equal protection analysis would assess the importance of the law‘s justification—compelling, rational, etc.—and focus on how closely the law is tailored to meet it, which this dissenting opinion does not do. Compare Hirschfeld, 5 F.4th at 440-52 (applying means-ends scrutiny to similar age-based firearm prohibition). Second, although age classifications are usually subject to rational basis scrutiny, as the majority opinion says, the majority opinion ignores that this case involves a classification about who may exercise a fundamental right. See McDonald, 561 U.S. at 778 (“the right to keep and bear arms [is] among those fundamental rights necessary to our system of ordered liberty“). And, under the Equal Protection Clause, “if the law impinges on a fundamental right, it is subject to strict scrutiny,” even if it would otherwise be subject to rational basis review. Leib v. Hillsborough Cnty. Pub. Transp. Comm‘n, 558 F.3d 1301, 1305–06 (11th Cir. 2009). See, e.g., Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312–13 (1976) (mandatory retirement age classification was
Finally, the majority opinion says the existence of laws that specifically required parents to provide firearms for their militia-aged children suggest that those children could not purchase firearms themselves. But there is no evidence that legal barriers (as opposed to financial ones) were the primary impediment to eighteen-year-olds arming themselves. “[E]ven though there were founding-era militia laws that required parents or guardians to supply arms to their minor sons, nothing in those statutes says that 18-to-20-year-olds could not purchase or otherwise acquire their own guns.” Lara, 91 F.4th at 145. And there is a more important point that the majority opinion overlooks: those laws required parents to arm otherwise unarmed eighteen- to twenty-one-year-olds. To the extent those laws reflect a Founding-era policy on age and firearms, they reflect the policy that eighteen- to twenty-one-year-olds should be armed. The “how and why” of that policy is as far as can be from the “how and why” of Florida‘s prohibition on young adults arming themselves.
Although I don‘t doubt that state legislatures may set age qualifications as a general matter, this case involves a fundamental right guaranteed by the text of the Constitution that does not depend on legislative grace. Because (as the majority opinion assumes and the Commissioner concedes) eighteen-to-twenty-one-year-old citizens are part of the “people” who have the right to bear arms, Florida‘s law is unconstitutional unless the Commissioner can
2.
Left without any Founding-era analogues against which to assess
There are three important considerations that make these historical analogues insufficient, I believe, to satisfy the Bruen/Rahimi test. Indeed, the Commissioner‘s historical record confirms only that our national tradition of firearm regulation has never contemplated blanket bans on firearm purchases by all persons between the ages of eighteen and twenty-one. Put another way, regardless of their place in history, none of the
a.
For starters, the history of state prohibitions is far too late and too sporadic to meaningfully inform our understanding of the text of the Second Amendment. The Second Amendment “codified a pre-existing right.” Heller, 554 U.S. at 592. The Framers did not originate the right to keep and bear arms, and the right is not “in any manner dependent upon [the Constitution] for its existence.” United States v. Cruikshank, 92 U.S. 542, 553 (1875). Because “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them,” Bruen, 597 U.S. at 34 (emphasis omitted) (quoting Heller, 554 U.S. at 634–35), the point of Bruen‘s historical inquiry is to “delineate the contours” of the preexisting right to keep and bear arms. Rahimi, 602 U.S. at 691. In other words, historical research is a means to the end of ascertaining “the understandings of those who ratified” the Constitution. Bruen, 597 U.S. at 28; see also Rahimi, 602 U.S. at 723 (Kavanaugh, J., concurring). Because we are trying to understand the scope of a preexisting right codified by the Second Amendment, post-ratification resources “do not provide as much insight into [the Second Amendment‘s] original meaning as earlier sources.” Bruen, 597 U.S. at 36 (quoting Heller, 554 U.S. at 614); see also Rahimi, 602 U.S. at 737–38 (Barrett, J., concurring).
States first began to restrict the transfer of certаin weapons to minors a generation after the Founding. Not until the 1850s did
Because of this timing, these nineteenth-century statutes could help the Commissioner‘s argument only if the tradition they reflected was robust enough to provide “confirmation” that the Founding-era public would have approved a ban on gun purchases by those under the age of twenty-one. Bruen, 597 U.S. at 37 (quoting Gamble v. United States, 587 U.S. 678, 702 (2019)). That is, if the Founding-era record were “elusive or inconclusive” on that point, we might consider whether these statutes could “liquidate” the meaning of the Second Amendment by establishing a national historical tradition of age-based purchasing bans similar to Florida‘s.
But no one can say the Founding-era history is “elusive or inclusive” on this point. The Founding generation viewed eighteen- to twenty-one-year-olds as capable of using firearms in a responsible manner. Lara, 91 F.4th at 142-44. They were—expressly—part of the militia referred in the Second Amendment‘s text. “Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety.” Reese, 127 F.4th at 598. There were no age-based limitations on their right to keep and bear arms either before, during, or immediately after the adoption of the Bill of Rights. “[L]ate-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” Bruen, 597 U.S. at 66; see also Espinoza v. Mont. Dep‘t of Revenue, 591 U.S. 464, 482 (2020) (holding that practices that “arose in the second half of the 19th century” cannot alone define “an early American tradition“).
I also cannot say these state statutes reflect the kind of “‘universal and long-established’ tradition of prohibiting certain conduct” that establishes the constitutionality of that prohibition. Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002) (quoting McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 377 (1995) (Scalia, J., dissenting)). All told, over a century after the Second Amendment was ratified, only nineteen out of forty-five states (plus the District of Columbia) had implemented any form of age-based
b.
These post-ratification state statutes also fail the Bruen/Rahimi test because they do not impose comparable burdens on the right with comparable justifications. See id. at 66 (discounting certain nineteenth-century contrary laws because of “several serious flaws even beyond their temporal distance from the founding“).
First, all but two of these statutes plainly regulate the purchase of specific easily concealed weapons;1 they do not affect the purchase of ordinary firearms in use at the time, such as rifles or shotguns. Some statutes specifically exempted normal, everyday weapons from the prohibition. See
The upshot is that, unlike Florida‘s ban, which prohibits the purchase of any and all firearms, these laws reflect а tradition of regulating specific weapons that were considered unusually dangerous because they could so easily be concealed. The Second Amendment protects only “the sorts of weapons . . . ‘in common use at the time.‘” Heller, 554 U.S. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). And one regulation with historical pedigree is the prohibition of “dangerous and unusual weapons.” Id. at 626–28. That policy—prohibiting access to especially dangerous weapons—is the aim and effect of these statutes. And some of
Second, these late 1800s statutes limited their proscriptions to legal minors and do not differentiate one adult from another. Each nineteenth-century statute cited by the Commissioner regulated minors as a class. Most of the statutes made that explicit. E.g., 1876 Ga. Laws 112 (making it unlawful “to sell, give, lend or furnish any minor or minors any pistol“). Florida‘s law here, however, affects the gun-purchasing rights of adults.
Not to belabor the point, but eighteen- to twenty-one-year-olds in Florida today are analogous to adults, not minors, at the time these statutes were enacted. Unlike minors, eighteen- to twenty-one-year-olds in Florida today must protect, shelter, and defend themselves. Because they are adults, neither the state nor their parents owe them any special duty of protection or defense.
c.
Lastly, the campus codes are uniquely poor analogues. They were limited in geographical reach and carried far less meaningful punishments than the fines and imprisonment imposed by Florida‘s ban. They are “too different in both the ‘how’ and the ‘why’ to establish a compelling historical analogue for contemporary restrictions.” Reese, 127 F.4th at 596.
There is no doubt that public colleges and universities have historically prohibited possession of firearms by students. See Univ. of Ga. Lib., The Minutes of the Senatus Academicus 1799–1842 (Nov. 4, 1976), https://perma.cc/VVT2-KFDB (providing an August 9, 1810 resolution prohibiting student possession of “any gun, pistol,” or “other offensive weapon in College or elsewhere“); Univ. of Va. Bd. of Visitors, University of Virginia Board of Visitors Minutes (October 4-5, 1824) 6–7, Encyclopedia Va. (Dec. 7, 2020), https://perma.cc/5GVE-K2DS (forbidding the possession or use of “weapons or arms of any kind, or gunpowder” on the grounds); Acts of the General Assembly and Ordinances of the Trustees, for the Organization and Government of the University of North Carolina 15 (1838), https://perma.cc/WW7L-KH5T (prohibiting
The campus codes are not useful Bruen analogues. The point of analogizing to historical statutes, judicial decisions, and commentary is to see what the people responsible for ratifying, interpreting, and enforcing the Second Amendment thought it meant. But when these campus codes were written, nobody understood the Constitution to govern a college‘s campus rules. Not until 1961 did a court enforce students’ constitutional rights against a public university. See generally Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961). In the decades just before that decision, courts would apply a form of contract law and review university action, if at all, only for reasonableness. David M. Rabban, Judicial Review of the University-Student Relationship: Expulsion and Governance, 26 Stan. L. Rev. 95, 97–98 (1973). And when the campus codes invoked here were implemented, colleges were said to stand in loco parentis: In the eyes of the law, the student‘s parents had given “the discretionary privileged authority of parents to university authorities.” Id. at 97 n.15; see also Worth, 108 F.4th at 695–96. Colleges, imbued with this “strict authority and control,” imposed a “vast array of rules and restrictions” as parents, not govеrnments. Brian Jackson, The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform, 44 Vand. L. Rev. 1135, 1139–40 (1991). A campus code says no more about the Constitution than does a particular parent‘s house rules.
III.
The Second Amendment does not allow for a categorical ban on the ability of law-abiding adults ages eighteen to twenty-one to purchase a firearm for self-defense. Because Supreme Court caselaw establishes that Florida‘s ban is unconstitutional as applied to adults between the ages of eighteen and twenty-one, I respectfully dissent.
Notes
Lurking beneath every Second Amendment case is (I think) an exceedingly knotty meta-issue: Which historical period informs the originalist inquiry—the Founding or Reconstruction? “Strictly speaking, [a state] is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second.” New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1, 37 (2022). The Second Amendment was ratified in 1791; the Fourteenth in 1868. Of course, if 1868 is the proper guidepost, then some nineteenth-century sources aren‘t post-ratification but rather pre-ratification evidence. At least for now, I agree with the majority‘s decision to bracket the Founding-vs.-Reconstruction issue. See Majority Op. at 14; accord, e.g., United States v. Rahimi, 602 U.S. 680, 692 n.1 (2024). It‘s an important question, though—one to which I hope scholars of all stripes will devote serious and sustained attention.
I‘ll say that as a matter of existing doctrine, it seems to me clear enough that Founding-era (rather than Reconstruction-era) understandings must govern. See, e.g., Nevada Comm‘n on Ethics v. Carrigan, 564 U.S. 117, 122–25 (2011) (
See James Call, Florida Lawmakers Send Gun-Control Bill to Governor, Includes Plan to Arm Teachers, USA Today (Mar. 8, 2018), https://perma.cc/8R33-MNC4.
The majority reads my opinion to “impl[y] that any age restriction [on firearm purchases] is unconstitutional.” To be clear, I would merely hold that in this case, the Commissioner failed to demonstrate that prohibiting 18-to-20-year-olds from purchasing firearms comports with this Nation‘s history and tradition of firearm regulation. I express no opinion on any restrictions placed upon Americans under 18 years of age.
As we recognized in Adams, courts including this one “have long found a [constitutional] privacy interest in shielding one‘s body from the opposite sex in a variety of legal contexts.” 57 F.4th at 805; see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993) (joining other circuits “in recognizing a prisoner‘s constitutional right to bodily privacy because most people have ‘a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating‘” (quoting Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981))); cf. Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (accepting that “the law tolerates same-sex restrooms or same-sex dressing rooms . . . to accommodate privacy needs“); Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993) (same). SeeIn this respect, Judge Rosenbaum and I may view post-ratification history‘s role a little differently. See Rosenbaum Concurring Op. at 30 (“Th[e] consistent, longstanding, and uninterrupted tradition of prohibiting the sale of firearms to Under-21s through criminal statutes, beginning in 1855 with Alabama‘s law and running through at least 2021, provides evidence of the constitutionality of laws like Florida‘s that prohibit the sale of firearms to Under-21s.“).
Michael Scherer, Florida Legislature Backs New Gun Restrictions After Parkland School Shooting, Wash. Post (Mar. 7, 2018 9:38 PM), https://perma.cc/T65E-4YGQ; Dave Cullen, “The News Forgets. Very Quickly“: Inside the Marjory Stoneman Douglas Students’ Incredible Race to Make History, Vanity Fair (Mar. 7, 2018), https://perma.cc/HE2W-G976.
In response to this point, the majority contends that it need not only rely on firearms-specific regulations and cites the surety laws that the Supreme CourtJudge Rosenbaum repeats the majority‘s reasoning on this point and contends that the majority properly relies on “general common-law proscriptions” because “[g]eneral legal principles include firearm-specific applications.” But Judge Rosenbaum‘s analysis turns on her and the majority‘s assertion that the common law actually “made it effectively impossible for Under-21s to purchase firearms” and other non-necessary goods. As I explain below, history shows that the Commissioner‘s cited contract-law doctrine posed little barrier at all to minors purchasing non-necessary goods, including firearms, on credit. Thus, there is little connection between the Commissioner‘s purported historical analogue and “American gun laws” considered by the Supreme Court. Rahimi, 602 U.S. at 693.
The majority opinion emphasizes that twenty-one was considered the age of majority around the time of the Founding. But, under Florida law, the age of adulthood is eighteen. SeeJessica Contrera, ‘I Would Rather Not Be Alone.’ Behind Their Anger, Florida Students Are Still Teens Struggling with Trauma, Wash. Post (Feb. 20, 2018), https://perma.cc/XDN3-C8UT.
SeeCameron Kasky, Opinion, Parkland student: My generation won‘t stand for this, CNN (Feb. 20, 2018), https://perma.cc/2Y2H-89TS.
Though, the dissent does express concerns for the welfare of a fictional “20-year-old single mother living on her own,” despite Rahimi referring to this very “hypothetical scenario” as “slaying a straw man” in facial Second Amendment challenges. 602 U.S. at 701.
Policies that prevent students from using bathrooms or locker rooms consistent with their gender identity create more safety risks for students. Gabriel