NATIONAL RIFLE ASSOCIATION, RADFORD FANT, Plaintiffs-Appellants. versus PAM BONDI, In her official capacity as Attorney General of Florida, et al., Defendants, COMMISSIONER, FLORIDA DEPARTMENT OF LAW ENFORCEMENT,
No. 21-12314
United States Court of Appeals For the Eleventh Circuit
March 9, 2023
[PUBLISH]
Appeal from the United States District Court for the Northern District of Florida
D.C. Docket No. 4:18-cv-00137-MW-MAF
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY, District Judge.*
ROSENBAUM, Circuit Judge:
In Ohio, a 19-year-old son shoots and kills his father to “aveng[e] the wrongs of [his] mother.”1 In Philadelphia, an 18-year-old “youth” shoots a 14-year-old girl before turning the gun on himself “because she would not love him.”2 In New York, a 20-year-old shoots and kills his “lover” out of jealousy.3 In Washington, D.C., a 19-year-old shoots and kills his mother, marking
These stories are ripped from the headlines—the Reconstruction Era headlines, that is. But they could have been taken from today’s news. Unfortunately, they illustrate a persistent societal problem. Even though 18-to-20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests.6
And in the more than 150 years since Reconstruction began, guns have gotten only deadlier: automatic assault rifles can shoot sixty rounds per minute with enough force to liquefy organs.7
But State governments have never been required to stand idly by and watch the carnage rage. In fact, during the Reconstruction Era—when the people adopted the
Acting well within that longstanding tradition, Florida responded to a 19-year-old’s horrific massacre of students, teachers, and coaches at Marjory Stoneman Douglas High School in a far more restrained way. The Marjory Stoneman Douglas High School Public Safety Act (“the Act”) precludes those under 21 only from buying firearms while still leaving that age group free to possess and use firearms of any legal type. See 2018 Fla. Laws 10, 18–19 (codified at
That kind of law is consistent with our Nation’s historical tradition of firearm regulation. Indeed, the Supreme Court has already identified “laws imposing conditions and qualifications on the commercial sale of firearms” as “longstanding” and therefore “presumptively lawful” firearm regulations. District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008). Florida’s law does
Because Florida’s law is consistent with our Nation’s historical tradition of firearm regulation, we affirm the district court’s judgment.
I.
After a 19-year-old shot and killed seventeen people at Marjory Stoneman Douglas High School, the Florida Legislature enacted the Marjory Stoneman Douglas High School Public Safety Act, which bans the sale of firearms to 18-to-20-year-olds. See 2018 Fla. Laws 10, 18–19 (codified at
Shortly after the law passed, the NRA challenged it, alleging that the law violates the
II.
Under the
After the Supreme Court decided Heller, we applied a two-part test to analyze the
But the Supreme Court abrogated step two of this framework in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2127 (2022). Now, “when the
Like the Fifth Circuit, we read Bruen as articulating two analytical steps. See United States v. Rahimi, 59 F.4th 163, 173 (5th Cir. 2023) (observing that “Bruen articulated two analytical steps”). First, we consider the plain text of the Amendment, as informed by the historical tradition. Second, we look for a historical analogue—
In our view, though, the Reconstruction Era historical sources are the most relevant to our inquiry on the scope of the right to keep and bear arms. That is so because those sources reflect the public understanding of the right to keep and bear arms at the very time the states made that right applicable to the state governments by ratifying the
A. Historical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.
We begin by explaining why historical sources from the Reconstruction Era are more probative of the
To start, the Supreme Court has explained that historical sources are relevant because the Constitution’s “meaning is fixed according to the understandings of those who ratified it,” Bruen, 142 S. Ct. at 2132. But “when it comes to interpreting the Constitution, not all history is created equal.” Id. at 2136. As the Supreme Court itself has declared, “Constitutional rights are enshrined with
It is that understanding—the one shared by those who ratified and adopted the relevant constitutional provision—that serves as originalism’s claim to democratic legitimacy. See, e.g., Heller, 554 U.S. at 634–35 (describing the “enumeration of a right” as “the very product of an interest balancing by the people”); Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1810 (1997) (“The traditional view of originalism perceives legitimacy as deriving from the act of lawmaking.”). In other words, we must respect the choice that those who bound themselves to be governed by the constitutional provision in question understood themselves to be making when they ratified the constitutional provision.
The people who adopted the
But when the States ratified the
The key takeaway from this bit of history is that the States are “bound to respect the right to keep and bear arms because of the
The Supreme Court has not yet decided this question, although it has “generally assumed that the scope of the protection
The Bruen Court did not need to decide the question because it read the historical record to yield the conclusion that “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 specific
What the Supreme Court has said, though, is that the “individual rights enumerated in the Bill of Rights and made applicable against the states through the
Yet the right’s contours turn on the understanding that prevailed at the time of the later ratification—that is, when the
This is necessarily so if we are to be faithful to the principle that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” 142 S. Ct. at 2136 (citation omitted). As with statutes, when a conflict arises between an earlier version of a constitutional provision (here, the
B. For purposes of this opinion, we assume without deciding that the Second Amendment’s plain text covers persons between eighteen and twenty years old when they seek to buy a firearm.
Having concluded that historical sources from the Reconstruction Era are more probative than those from the Founding Era on the scope of the
Bruen’s first analytical step asks whether “the
As to the first component of Bruen’s first step, it’s not clear whether 18-to-20-year-olds “are part of ‘the people’ whom the
In this case, Florida does not dispute the NRA’s contention that 18-to-20-year-olds are part of “the people” whom the
We need not decide this question today. Rather, we can assume for now that “the
C. The Act’s restriction on the sale of firearms to 18-to-20-year-olds is consistent with this Nation’s relevant historical tradition of firearm regulation.
Given our assumption that the
This inquiry entails “reasoning by analogy” to determine whether historical firearms regulations are “relevantly similar” the
Here, “a well-established and representative historical analogue” exists for Florida’s challenged law. Id. In fact, the historical record shows that regulations from the Reconstruction Era burdened law-abiding citizens’ rights to armed self-defense to an even greater extent and for the same reason as the Act does. In other words, at Bruen’s second step, Florida has satisfied its burden as to both the “how” and the “why.”
We begin with the “how”—that is, how the Act’s historical analogues similarly (and, in most cases, more severely) burdened
Two years later, Tennessee codified a similar law. Tennessee’s law prohibited selling, loaning, giving, or delivering “to any minor a pistol, bowie-knife, dirk, Arkansas tooth-pick, hunter’s knife, or like dangerous weapon, except a gun for hunting or weapon for defence in traveling,” TENN. CODE § 4864 (1858), reprinted in 1 The Code of Tennessee Enacted by the General Assembly of 1857-8 871 (Return J. Meigs & William F. Cooper eds. 1858). At that time, the age of majority in Tennessee was twenty-one years old.13 Like Alabama’s law, Tennessee’s law persisted through the Reconstruction Era. See State v. Callicutt, 69 Tenn. 714, 714 (1878) (explaining that Section “4864 of the Code . . . makes
Kentucky followed suit within a year. It enacted a law that prohibited selling, giving, or loaning “any pistol, dirk, bowie-knife, brass-knucks, slung-shot, colt, cane-gun, or other deadly weapon . . . to any minor,” 1859 Ky. Acts 245, § 23. The law contained an exception that allowed parents or guardians to give, lend, or sell deadly weapons to their minor children. See id. At that time, the age of majority in Kentucky was twenty-one years old.14 Kentucky’s law prohibiting the sale of firearms to minors also persisted through the Reconstruction Era. See ch. 29
In sum, then, Alabama and Tennessee generally prohibited selling, loaning, or even giving handguns and other handheld arms to 18-to-20-year-olds in the years leading up to the
On that score, Florida’s law and Kentucky’s law impose similar burdens on the right to keep and bear arms for self-defense: Kentucky left parents and guardians free to provide a “pistol, dirk, bowie-knife, brass-knucks, slung-shot, colt, cane-gun, or other deadly weapon” to their minor child, 1859 Ky. Acts 245, § 23, while Florida allows anyone to give or loan (but not sell) firearms to 18-to-20-year-olds. Because both laws leave pathways for 18-to-20-year-olds to acquire weapons, both laws impose similar burdens.
As for the “why” of those historical regulations, it is also “relevantly similar” to the “why” of the Marjory Stoneman Douglas High School Public Safety Act. Both “regulations burden a law-abiding citizen’s right to armed self-defense” for the same reason: enhancing public safety. Bruen, 142 S. Ct. at 2132–33. Indeed, Tennessee and Kentucky passed their regulations in tandem with laws that prohibited giving spirits to minors,15 demonstrating those states’ understandings that alcohol and firearms both represented dangers to minors’ safety. See also infra at 25–26 (discussing the public’s understanding that these laws aimed to advance public
And that is well in keeping with traditional firearm regulations. Public universities have long prohibited students from possessing firearms on their campuses. On August 9, 1810, for instance, the University of Georgia passed a resolution that prohibited students from keeping “any gun, pistol,” or “other offensive weapon in College or elsewhere,” meaning that students could not possess such weapons even while they were away from college.16 Just over a decade later, the University of Virginia passed a resolution—with supporting votes from Thomas Jefferson and James Madison—that prohibited students from keeping or using “weapons or arms of any kind, or gunpowder,” on school grounds.17 The University of North Carolina similarly prohibited students from keeping “firearms, or gunpowder” by the mid-nineteenth century.18
Many of those post-ratification regulations were similar, if not identical, to their pre-ratification predecessors in Alabama, Tennessee, and Kentucky. Maryland, for example, made it “unlawful” for anyone “to sell, barter, or give away any firearm whatsoever or other deadly weapon, except for shot guns, fowling pieces and rifles to any person who is a minor under the age of twenty-one years.” 1882 Md. Laws 656; see also, e.g., 1875 Ind. Acts 59 (making it “unlawful for any person to sell, barter, or give to any other person, under the age of twenty-one-years, any pistol, dirk, or bowie-knife, slung-shot, knucks, or other deadly weapon”).
Unlike those laws, the Act leaves 18-to-20-year-olds free to acquire firearms of any legal type—so long as they don’t buy them.
True, the Act and its Reconstruction Era analogues apply to overlapping, but not coextensive classes of arms. But for two reasons, the Reconstruction Era statutes are “similarly relevant” and no less burdensome to 18-to-20-year-olds’
First, the Reconstruction Era statutes and the Act are “similarly relevant” because both apply broadly to many—though not all—types of “arms” under the
Our conclusion that Florida’s “firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” Bruen, 142 S. Ct. at 2127, finds further support from Reconstruction Era newspapers. As the Supreme Court has explained, the “discussion of the
Based on newspapers from the Reconstruction Era, historians have confirmed that the public did not understand the right to keep and bear arms to protect the rights of 18-to-20-year-olds to purchase such weapons. In fact, much of the public at the time supported restrictions. See Patrick J. Charles, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry 156 (2019) (noting that “lawmakers and the public supported” “laws restricting the sale of dangerous weapons to minors” “in the hopes of stemming the tide of firearm-related injuries at the hands of minors”); see also, e.g., id. at 172 (noting that “the general public” did not view laws “prohibiting minors from using firearms” as “a violation of the
It would be odd indeed if the people who adopted the
The courts generally shared the public’s approval of laws that prohibited providing handguns and other dangerous weapons to minors. Take the Supreme Court of Tennessee. In 1871, that court “held that a statute that forbade openly carrying a pistol . . . violated the state constitutional provision (which the court equated with the
The Supreme Court has also directed us to consult contemporaneous legal commentators to discern the public understanding of the right at the time of ratification. Bruen, 142 S. Ct. at 2128. Here, legal commentators viewed the Reconstruction Era statutes as constitutional. Thomas Cooley “wrote a massively popular 1868 Treatise on Constitutional Limitations.” Heller, 554 U.S. at 616. Cooley’s treatise espoused the view that states could use their police power to prohibit the sale of arms to minors. Thomas M. Cooley, Treatise on Constitutional Limitations 740 n.4 (5th ed. 1883).
Based on the historical record, we can distill two key points. First, several states burdened 18-to-20-year-olds’ rights to keep and
These points show that the Marjory Stoneman Douglas High School Public Safety Act “is consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2126. To begin with, the Act is no more restrictive than its forebearers: while the Act burdens 18-to-20-year-olds’ rights to buy firearms, unlike its Reconstruction Era analogues, it still leaves 18-to-20-year-olds free to acquire any type of firearm—including “the quintessential self-defense weapon,” the handgun, Heller, 554 U.S. at 630—in legal ways, as long as they don’t buy the weapons.
The Act also aims to improve public safety just like its historical analogues sought to do—that is, the Act has an analogous “why.”
So the Act and its historical predecessors are “relevantly similar under the Second Amendment.” Bruen, 142 S. Ct. at 2132. And for that reason, the Act does not infringe on the right to keep and bear arms. See id. at 2161 (Kavanaugh, J., concurring) (explaining that Bruen articulates the test “for evaluating whether a government regulation infringes on the
The NRA’s conclusion is incorrect. The NRA mistakes a legal obligation for a right. See Heller, 554 U.S. at 605 (explaining that the
To the contrary, the historical record shows that merely being part of the militia did not entitle 18-to-20-year-olds to enjoy the same political and civil rights as adults. See, e.g., Corinne T. Field, The Struggle for Equal Adulthood: Gender, Race, Age, and the Fight for Citizenship in Antebellum America 55 (2014) (explaining that, during the early nineteenth century, the “relevance of chronological age stood out most sharply in the celebration of age twenty-one as a transition to full citizenship for white men”). For instance, the Tennessee Supreme Court expressly rejected the argument that “every citizen who is subject to military duty has the
In other words, Congress imposed upon 18-to-20-year-olds a specific obligation to serve in the militia but did not give them all the rights associated with full citizenship (like, at that time, the right to vote). So we can’t infer from the fact that 18-to-20-year-olds had a specific obligation that they had a specific right.
Plus, even assuming that the Founding Era federal mustering obligations could be viewed as entitling 18-to-20-year-olds to buy firearms in 1791, that’s not the public understanding that prevails here. Rather, it’s clear that the public understanding of the
III.
Unfortunately, firearm violence among some 18-to-20-year-olds is nothing new. Tragically, all that has changed since the Reconstruction Era is the amount of carnage a single person can inflict in a short period because of the advances made in firearm technology over the last 150, or so, years.
But “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Bruen, 142 S. Ct. at 2136 (quoting Heller, 554 U.S. at 634–35). And as our history shows, the states have never been without power to regulate 18-to-20-year-olds’ access to firearms. Going back to the Reconstruction Era, that is exactly what many states around the country did. Indeed, many states, when the
Florida enacted the Marjory Stoneman Douglas High School Public Safety Act—as its name indicates—for precisely the same reason as states in the Reconstruction Era adopted their firearm restrictions for 18-to-20-year-olds—to address the public-safety crisis some 18-to-20-year-olds with firearms represent. Because Florida’s Act is at least as modest as the firearm prohibitions on 18-
We therefore affirm the district court’s order granting summary judgment in Florida’s favor.
AFFIRMED.
Appendix 1: Reconstruction Era Laws Banning the Sale of Firearms to 18-to-20-year-olds (Ordered Chronologically)
| State | Citation(s) |
|---|---|
| Alabama | 1855 Ala. Laws 17 (making it unlawful to “sell or give or lend, to any male minor, a bowie knife, or knife or instrument of the like kind or description, by whatever name called, or air gun or pistol”); see also Brown v. Beason, 24 Ala. 466, 466 (1854) (discussing the plaintiff’s “several children, some of whom were over twenty-one years of age, and some minors”); Saltonstall v. Riley, 28 Ala. 164, 172 (1856) (describing “a minor under the age of twenty-one years”); Vincent v. Rogers, 30 Ala. 471, 473–74 (1857) (explaining that the plaintiff “was a minor, under twenty-one years of age” when she entered the disputed contract; “that she became and was of age before this suit was instituted; and that after she became twenty-one years of age,” she reaffirmed the contract). |
| Tennessee | TENN. CODE § 4864 (1858), reprinted in 1 The Code of Tennessee Enacted by the General Assembly of 1857-8 871 (Return J. Meigs & William F. Cooper eds. 1858) (making it unlawful to sell, loan, or give, “to any minor a pistol, bowie-knife, dirk, Arkansas tooth-pick, hunter’s knife, or like dangerous weapon, except a gun for hunting or weapon for defence in traveling”); see also Warwick v. Cooper, 37 Tenn. (5 Sneed) 659, 660–61 (1858) (referring to |
| Kentucky | 1859 Ky. Acts 245, § 32 (making it unlawful for anyone, “other than the guardian,” to “sell, give, or loan any pistol, dirk, bowie-knife, brass-knucks, slung-shot, cold, cane-gun, or other deadly weapon . . . to any minor”); see also, e.g., Newland v. Gentry, 57 Ky. (18 B. Mon.) 666, 671 (1857) (referring to twenty-one as the age of majority). |
| Indiana | 1875 Ind. Acts 59 (making it “unlawful for any person to sell, barter, or give to any other person, under the age of twenty-one-years, any pistol, dirk, or bowie-knife, slung-shot, knucks, or other deadly weapon”). |
| Georgia | 1876 Ga. Laws 112 (making it unlawful “to sell, give, lend or furnish any minor or minors any pistol, dirk, bowie knife or sword cane”); see also McDowell v. Georgia R.R., 60 Ga. 320, 321 (1878) (noting that “age of legal majority” in Georgia was “twenty-one years; until that age all persons [were] minors”). |
| Mississippi | 1878 Miss. Laws 175 (making it unlawful “for any person to sell to any minor or person intoxicated, knowing him to be a minor or in a state of intoxication, any” “bowie knife, pistol, brass knuckles, slung shot, or other deadly weapon of like kind or description); see also Rohrbacher v. City of Jackson, 51 Miss. 735, 744, 746 (1875) (observing that a provision, which authorized “female citizens over eighteen years of age” to vote, “authoriz[d] females, |
| Missouri | MO. REV. STAT. § 1274 (1879), reprinted in 1 The Revised Statutes of the State of Missouri 1879 224 (John A. Hockaday et al. eds. 1879) (making it unlawful to “sell or deliver, loan or barter to any minor” “any deadly or dangerous weapon” “without the consent of the parent or guardian of such minor”); see also id. § 2559 (setting the age of majority at twenty-one for males and eighteen for females). |
| Illinois | 1881 Ill. Laws 73 (making it unlawful for anyone other than a minor’s father, guardian, or employer to “sell, give, loan, hire or barter,” or to “offer to sell, give, loan, hire or barter to any minor within this state, any pistol, revolver, derringer, bowie knife, dirk or other deadly weapon of like character”); see also ch. no. 64 ILL. COMP. STAT. § 1 (1881) (setting the age of majority at twenty-one for males and eighteen for females). |
| Nevada | NEV. REV. STAT. § 4864 (1885) (making it unlawful for anyone “under the age of twenty-one (21) years” to “wear or carry any pistol, sword in case, slung shot, or other dangerous or deadly weapon”). |
| Delaware | 16 Del. Laws 716 (1881) (making it unlawful to “knowingly sell a deadly weapon to a minor other than an ordinary pocket knife”); see also Revised Statutes of the State of Delaware 60 (The |
| Maryland | 1882 Md. Laws 656 (making it “unlawful for any person . . . to sell, barter, or give away any firearm whatsoever or other deadly weapon, except for shot gun, fowling pieces and rifles to any person who is a minor under the age of twenty-one years.”). |
| West Virginia | 1882 W. Va. Acts 421 (making it unlawful for a person to “sell or furnish” “any revolver or other pistol, dirk, bowie knife, razor, slung shot, billy metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character” “to a person whom he knows, or has reason, from his appearance or otherwise, to believe to be under the age of twenty-one years”). |
| Kansas | 1883 Kan. Sess. Laws 159 (making it unlawful to “sell, trade, give, loan or otherwise furnish any pistol, revolver or toy pistol . . . or any dirk, bowie-knife, brass knuckles, slung shot, or other dangerous weapon[] to any minor”); see also Burgett v. Narrick, 25 Kan. 526, 527–28 (Kan. 1881) (referring to twenty-one as the age of majority). |
| Wisconsin | 1883 Wis. Sess. Laws 290 (vol. 1) (making it “unlawful for any dealer in pistols or revolvers, or any other person, to sell, loan, or give any pistol or revolver to any minor in this state”); see also Huefner” cite=“20 N.W. 923” pinpoint=“924” court=“WI” date=“1884“>Hepp v. Huefner, 20 N.W. 923, 924 (Wis. 1884) (referring to twenty-one as the age of majority). |
| Iowa | 1884 Iowa Acts 86 (making it “unlawful for any person to knowingly sell, present or give any pistol, revolver or toy pistol to any minor”); see also In re Mells, 20 N.W. 486 (Iowa 1884) (referring to twenty-one as the age of majority); Hoover v. Kinsey Plow Co., 8 N.W. 658 (Iowa 1881) (referring to twenty-one as the age of majority). |
| Louisiana | 1890 La. Acts 39 (making it unlawful “for any person to sell, or lease or give through himself or any other person, any pistol, dirk, bowie-knife or any other dangerous weapon, which may be carried concealed to any person under the age of twenty-one years”). |
| Wyoming | 1890 Wyo. Terr. Sess. Laws 140 (making it “unlawful for any person to sell, barter or give to any other person under the age of twenty-one years any pistol, dirk or bowie-knife, slung-shot, knucks or other deadly weapon that can be worn or carried concealed upon or about the person”); see also Revised Statutes of Wyoming 1253 (J.A. Van Orsdel & Fenimore Chatterton eds. 1899) (codifying the same). |
| District of Columbia | 27 Stat. 116–17 (1892) (making it unlawful to “sell, barter, hire, lend or give to any minor under the age of twenty-one years” “any deadly or dangerous weapons, such as daggers, air-guns, pistols, bowie-knives, dirk knives or dirks, blackjacks, razors, razor blades, sword canes, slung shot, brass or other metal knuckles”). |
| North Carolina | |
| Texas | 1897 Tex. Gen. Laws 221–22 (making it unlawful to “knowingly sell, give or barter, or cause to be sold, given or bartered to any minor, any pistol, dirk, dagger, slung shot, sword-cane, spear, or knuckles made of any metal or hard substance, bowie knife or any other knife manufactured or sold for the purpose of offense or defense, without the written consent of the parent or guardian of such minor, or of some one standing in lieu thereof”); see also 2 Sayles’ Annotated Civil Statutes of the State of Texas 1009 (John Sayles & Henry Sayles eds. 1898) (setting the age of majority at twenty-one for males and unmarried females). |
I would wait to issue an opinion until the current session of the Florida legislature completes its consideration of H.B. 1543, 2023 Leg., Reg. Sess. (Fla. 2023), which may render the issue moot. If passed, H.B. 1543 would reduce the minimum age in the law at issue from 21 to 18. However, I concur in the judgment given the law as it exists today.