Caleb Reese; Firearms Policy Coalition, Incorporated; Second Amendment Foundation; Louisiana Shooting Association; Emily Naquin, Plaintiffs—Appellants, versus Bureau of Alcohol, Tobacco, Firearms, and Explosives; Steven Dettelbach, Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; James R. McHenry III, Acting U.S. Attorney General, Defendants—Appellees.
No. 23-30033
United States Court of Appeals for the Fifth Circuit
January 30, 2025
Before ELROD, Chief Judge, JONES, and BARKSDALE, Circuit Judges. Edith H. Jones, Circuit Judge:
I. Background
A. Procedural History
Appellants filed suit in the district court against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“), its Director, and the Attorney General of the United States, challenging the constitutionality of
Appellants are individuals between the ages of eighteen and twenty-one and three nonprofit organizations, filing on behalf of their members who are unable to buy handguns from FFLs and FFLs who are, in turn, prohibited from selling them handguns. Because the federal laws ban purchases by adults of a certain age, Appellants recently added additional named Plaintiffs who are currently over eighteen and under twenty-one.
In 2021, the government moved to dismiss or for summary judgment, contending that Appellants lacked Article III standing and failed to state a claim upon which relief could be granted. Appellants filed a cross-motion for summary judgment. The district court found that Appellants had standing, but granted the government‘s motion to dismiss under
In so doing, the district court purported to adopt the framework established by the Supreme Court in New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022). The court considered first “whether the Second Amendment‘s plain text protects the ability of 18 to 20-year-olds to directly purchase handguns from FFLs,” and, if so, “whether the challenged restrictions are
After oral argument, this appeal was abated pending the Supreme Court‘s decision in United States v. Rahimi, 602 U.S. 680, 144 S. Ct. 1889 (2024). There, the Supreme Court largely reinforced and refined the Bruen analysis and ultimately upheld
B. Statutory Framework
Congress enacted the Omnibus Crime Control and Safe Streets Act (“Act“) in 1968, and, inter alia, prohibited FFLs from selling certain firearms to certain purchasers based on the purchaser‘s age.
It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver [] any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age[.]
ATF implemented regulations prohibiting the sale of firearms “other than a shotgun or rifle” to adults under twenty-one.
A licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall not sell or deliver . . . [any] firearm, or ammunition, . . . other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the importer, manufacturer, dealer, or collector knows or has reasonable cause to believe is less than 21 years of age[.]
As a result, eighteen-to-twenty-year-olds “may not purchase handguns from FFLs.” NRA I, 700 F.3d at 190. The Act and regulations do nothing to prohibit eighteen-to-twenty-year-olds from owning, possessing, or carrying handguns, nor does it prohibit them from buying handguns in the unlicensed, private market or receiving handguns as gifts.
Appellants allege that this “handgun ban” is inconsistent with our Nation‘s history of firearm regulation and thus unconstitutionally infringes on their Second Amendment right to keep and bear arms.
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.”
“Why and how the regulation burdens the right are central to this inquiry” in “considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Rahimi, 602 U.S. at 692, 144 S. Ct. at 1898 (citing Bruen, 597 U.S. at 26-31, 142 S. Ct. at 2131-34). Neither Bruen nor Rahimi contemplates “a law trapped in amber,” where the government must show a “historical twin.” Id. at 691-692, 144 S. Ct. at 1897-98 (quoting Bruen, 597 U.S. at 30, 142 S. Ct. at 2111). If a challenged regulation “does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.‘” Id. at 692, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 30, 142 S. Ct. at 2133). At the same time, a law may unconstitutionally infringe on the right when it goes “beyond what was done at the founding,” “[e]ven when [it] regulates arms-bearing for a permissible reason.” Id.
In Bruen, the Court considered the constitutionality of New York‘s licensing regime for carrying handguns in public. 597 U.S. at 8-11, 142 S. Ct. at 2122. Following up on a 1905 law, New York‘s “Sullivan Law” criminalized the possession of handguns, either concealed or otherwise, without a government-issued license, which could be issued if the applicant demonstrated “good moral character” and “proper cause.” Id. (quoting 1913 N.Y. Laws ch. 608, § 1, p. 1629; citing 1911 N.Y. Laws ch. 195, § 1, p. 443). At the time Bruen was decided, the regulatory scheme had evolved to criminalize the possession of “any firearm without a license, whether inside or outside the home.” Id. at 11-12, 142 S. Ct. at 2122 (internal quotations omitted). What made New York‘s licensing regime relatively unique was its “may issue” framework, which gave state authorities discretion in issuing licenses even where the applicant had demonstrated the requisite criteria. Id. at 13-14, 142 S. Ct. at 2123-24.
The Court considered it “undisputed” that the plaintiffs in Bruen, both “law-abiding, adult citizens,” were a part of “the people” protected by the Amendment, and that “handguns are weapons in ‘common use’ today for self-defense.” Id. at 31-32, 142 S. Ct. at 2134 (citing Heller, 554 U.S. at 580, 627, 128 S. Ct. at 2790-91, 2817). Because the plain text of the Amendment covered the conduct at issue, the government bore the burden of justifying the regulation under our Nation‘s regulatory tradition. Turning to that tradition, the “historical record . . . [did] not demonstrate a tradition of broadly prohibiting
Two years later, in Rahimi, the Court applied the Bruen two-part framework and upheld a challenge to the federal law that prohibits individuals subject to a domestic violence restraining order from possessing firearms. 602 U.S. at 684-686, 144 S. Ct. at 1894;
II. Analysis
With this background, we review the constitutional questions de novo. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003). Addressing the first question under Bruen, the government contends that “the Second Amendment‘s plain text” does not cover the conduct that
A. Purchasing Firearms
Contrary to the district court‘s assumption, the government denies that the plain text of the Second Amendment “establish[es] a right” to purchase firearms “at any time from any source.” It emphasizes that
Further, the contention that sales to young adults are not covered by the Second Amendment simply because of the Act‘s targeted application is fundamentally inconsistent with the Bruen/Rahimi framework. The threshold textual question is not whether the laws and regulations impose reasonable or historically grounded limitations, but whether the Second Amendment “covers” the conduct (commercial purchases) to begin with. Because constitutional rights impliedly protect corollary acts necessary to their exercise, we hold that it does. To suggest otherwise proposes a world where citizens’ constitutional right to “keep and bear arms” excludes the most prevalent, accessible, and safe market used to exercise the right. The baleful implications of limiting the right at the outset by means of narrowing regulations not implied in the text are obvious; step by step, other limitations on sales could easily displace the right altogether.2
B. “The People”
The government next asserts that eighteen-to-twenty-year-olds are not “part of ‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 31-32, 142 S. Ct. at 2134. This argument is based largely on the common law‘s recognition of 21 years as the date of legal maturity at the time of the founding, and the fact that legislatures have long established minimum age requirements for various activities.
The operative clause of the Second Amendment states that “the right of the people to keep and bear Arms, shall not be
Moreover, in the unamended Constitution and Bill of Rights, the phrase “right of the people” appears in the First Amendment‘s Assembly-and-Petition Clause, the Fourth Amendment‘s Search-and-Seizure Clause, and the Ninth Amendment. Heller, 554 U.S. at 579, 128 S. Ct. at 2790. All of these references confer “individual rights” and undoubtedly protect eighteen-to-twenty-year-olds as much as twenty-one-year-olds. In fact, with modifications, the rights they confer extend to younger minors. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 212, 95 S. Ct. 2268, 2274 (1975) (“[M]inors are entitled to a significant measure of First Amendment protection.“); New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740 (1985) (school-age children are protected by the Fourth Amendment, with greater permissible intrusions in the school context).
Elsewhere in the Constitution, “the people” refers to all Americans collectively. See
Seizing on Heller‘s reference to a “political community,” the government asserts that, because eighteen-to-twenty-year-olds did not “enjoy the full range of civil and political rights” in the founding-era, they are not a part of “the people” for Second Amendment purposes. Id. at 580, 128 S. Ct. at 2790; see, e.g., 1 John Bouvier, Institutes of American Law 148 (new ed. 1858) (“The rule that a man attains his majority at the age of twenty-one years accomplished, is perhaps universal in the United States.“); 1 Blackstone, supra, at 463 (“[F]ull age in male or female is twenty-one years . . .“). While it may be true that eighteen-to-twenty-year-olds could not then serve on juries, firearm restrictions are notably absent from the government‘s list of founding-era age-limited civil and political rights. See Albert W. Aschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 877 n.52 (1994). Nor does the government provide any evidence suggesting that eighteen-to-twenty-year-olds historically lacked the right to self-defense, the “central component” of the Second Amendment. Heller, 554 U.S. at 599, 128 S. Ct. at 2801 (emphasis omitted).
First, Heller unambiguously holds that “the Second Amendment confer[s] an individual right to keep and bear arms” (as opposed to a right conditioned on service in the militia). 554 U.S. at 595, 600, 128 S. Ct. at 2799, 2802 (emphasis added). And in contrast to “civic rights” that presuppose virtue limitations, the right to keep and bear arms is an “individual right” rooted in the right to self-defense. See Kanter v. Barr, 919 F.3d 437, 462-63 (7th Cir. 2019) (Barrett, J., dissenting); Heller, 554 U.S. at 595, 128 S. Ct. at 2799. 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. See NRA I, 700 F.3d at 204 n.17 (“The terms ‘majority’ and ‘minority’ lack content without reference to the right at issue.“), abrogated by Bruen, 597 U.S. 1, 142 S. Ct. 2111.
Second, the contention that “the people” covered by the Second Amendment is limited to those who enjoyed civic or voting rights at the founding does not withstand common-sense scrutiny. In most cases, early colonial governments conditioned eligibility to vote on various criteria, including variations of the “forty-shilling freehold” requirement.3 Shortly after the Constitution was ratified in 1788, states began to reassess this “landed” requirement,4 but often maintained race and gender-based voter
qualifications.5 In 1870, nearly eighty years after the ratification of the Bill of Rights, the Fifteenth Amendment extended voting rights to all Americans, regardless of race; and it was not until 1920 that the Nineteenth Amendment guaranteed women the right to vote. Finally, the Twenty-Sixth Amendment lowered the voting age for all Americans from twenty-one to eighteen in 1971.
Thus, to say that “the people” covered by the Second Amendment is limited to those who were a part of the “political community” at the founding would imply excluding “law-abiding, adult citizens” based on property ownership, race, or gender. See Bruen, 597 U.S. at 31-32, 142 S. Ct. at 2134 (“It is undisputed that petitioners . . .—two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment protects.“) (citing Heller, 554 U.S. at 580, 128 S. Ct. at 2790). Just as defining “arms” as “only those arms in existence in the 18th century” “border[s] on the frivolous,” likewise, attempting to limit “the people” to individuals who were part of the “political community” at ratification is ludicrous. See Heller, 554 U.S. at 582, 128 S. Ct. at 2791. “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 597 U.S. at 28, 142 S. Ct. at 2132.
Finally, the history of firearm use, particularly in connection with militia service, contradicts the premise that eighteen-to-twenty-year-olds are not covered by the plain text of the Second Amendment. The Second
Amendment‘s prefatory clause states that “[a] well regulated Militia, being necessary to the security of a free State . . . .”
At the founding, “the ‘militia’ in colonial America consisted of a subset of ‘the people‘—those who were male, able bodied, and within a certain age range.” Id. at 580, 595-97, 128 S. Ct. at 2791, 2799-800 (citing United States v. Miller, 307 U.S. 174, 179, 59 S. Ct. 816, 818 (1939) (“the Militia comprised all males physically capable of acting in concert for the common defense“); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands“); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms“)). Under Article I, Congress has the power to “call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions[.]”
The Second Congress consequently enacted the Militia Act of 1792, which stated, in part:
That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein excepted) shall severally and respectively be enrolled in the militia . . . . And it shall at all time hereafter be the duty of every such captain or commanding officer of a company to enroll every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years . . . . That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, . . . [and] a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock; . . . or with a good rifle, . . . [and] twenty balls suited to the bore of his rifle . . . .
In response, the government points to four instances in which states set the minimum age for militia service above eighteen. One is from the colonial era, while the rest were codified between 1829 and 1868.6 Colonial Virginia exempted men under twenty-one from militia service from 1738 to 1757, but adopted the minimum age of eighteen in response to a need for
additional forces during the French & Indian War. David B. Kopel & Joseph G. S. Greenlee, The Second Amendment Rights of Young Adults, 43 S. Ill. U. L.J. 495, 533, 579 (2019) (“Rights of Young Adults“). Apart from this example, colonial legislatures consistently set the minimum militia age at eighteen, and in some cases even lower.7 Id. at 533; see Miller, 307 U.S. at 180-81, 59 S. Ct. at 819 (discussing Massachusetts and New York laws from 1784 and 1786, respectively, that required able-bodied men from sixteen to forty-five to enroll in the militia, and “provide himself, at his own Expense, with a good Musket“).
One brief pre-ratification aberration and a handful of post-ratification examples do not outweigh the consistent approach of all states—including Virginia—where the minimum age of eighteen prevailed at or immediately after ratification of the Second Amendment. See NRA II, 714 F.3d at 340-41 n.8 (Jones, J., dissenting from denial of rehearing en banc). The founding-era laws are far more probative of what “the people” meant when the Second Amendment was ratified, as “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U.S. at 634-35, 128 S. Ct. at 2821.
Reliance on the Militia Act does not, of course, constrain the Second Amendment to founding-era militiamen. Heller expressly rejected that argument. Id. at 577, 128 S. Ct. at 2789. But the prefatory clause, in establishing the Amendment‘s purpose, describes those who, at a minimum, must have been covered by it. In other words, the Framers wanted to ensure that individuals eligible for militia service to defend “themselves, if
necessary, and . . . their country” could not be disarmed. Id. at 613, 128 S. Ct. at 2809 (quoting State v. Chandler, 5 La. Ann. 489, 490 (1850)).
Finally, the government argues that mere participation in the militia was not enough to establish Second Amendment protections because (1) black men served in the militia but were otherwise barred from possessing arms; and (2) Virginia, by law, disarmed men who refused to take a loyalty oath while still requiring them to enroll in the militia, albeit without firearms.8
measure, not unlike the “military dictates” that Bruen cautions should be discounted when assessing the “Constitution‘s usual application during times of peace.” Bruen, 597 U.S. at 63 n.26, 142 S. Ct. at 2152.
The Supreme Court recognized in Heller and repeated in Bruen that the Second Amendment “belongs to all Americans” (subject, of course, to “reasonable, well-defined restrictions“). Heller, 554 U.S. at 581, 128 S. Ct. at 2791 (emphasis added); Bruen, 597 U.S. at 31-32, 70, 142 S. Ct. at 2134, 2156. While the core of the right is rooted in self-defense and unconnected with the militia, the text of the Amendment‘s prefatory clause considered along with the overwhelming evidence of their militia service at the founding indicates that eighteen-to-twenty-year-olds were indeed part of “the people” for Second Amendment purposes. See Worth v. Jacobson, 108 F.4th 677, 689-92 (8th Cir. 2024) (holding the same); Lara v. Commissioner, No. 21-1832, 2025 WL 86539, at *5-7 (3d Cir. Jan. 13, 2025).
C. Tradition of Firearms Regulation
Because the “Second Amendment‘s plain text covers [the] conduct” at issue, “the Constitution presumptively protects [the] conduct.” Bruen, 597 U.S. at 24, 142 S. Ct. at 2129-30. According to Bruen, the next question is whether restricting eighteen-to-twenty-year-olds from purchasing handguns from FFLs is “consistent with this Nation‘s historical tradition of firearm regulation.” Id. at 17, 142 S. Ct. at 2126. The government bears the burden of proof. Id.
The Supreme Court reiterated in Rahimi that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” 602 U.S. at 692, 144 S. Ct. at 1898 (citing Bruen, 597 U.S. at 26-31, 142 S. Ct. at 2131-34). Courts must “ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit.” Id. (quoting Bruen, 597 U.S. at 29, 142 S. Ct. at 2132); see Lara, 2025 WL 86539, at *1. Central to this analogical inquiry
As discussed above, the 1792 Militia Act, passed shortly after the Second Amendment was ratified, required eighteen-year-olds to enroll in the militia, and militia members were required to furnish their own weapons. See supra Section II.B. Of course, “[t]he right to keep and bear arms was not coextensive with militia service,” however, “[g]un ownership was necessary for militia service; militia service wasn‘t necessary for gun ownership.” NRA II, 714 F.3d at 342 (Jones, J., dissenting from denial of rehearing en banc). Certainly, eighteen-year-olds “must have been allowed to ‘keep’ firearms for personal use,” and “were within the ‘core’ rights-holders at the founding . . . .” Id. at 339. To satisfy its burden that banning eighteen-to-twenty-year-olds from purchasing handguns is consistent with our Nation‘s historical tradition of firearm regulation, the government must overcome this clear and germane evidence that eighteen-to-twenty-year-olds enjoyed the same Second Amendment rights as their twenty-one-year-old peers at the founding.
The government‘s theory inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age. Then the government works backward to assert that these laws are consistent with founding-era analogues focusing on the minority status and general “irresponsibility” of eighteen-to-twenty-year-olds. The government thus confects a longstanding tradition of firearm restrictions imposed on individuals under twenty-one.
We look at the historical evidence chronologically and fail to see the unbroken tradition or validity of the analogues that the government deploys.
1. Firearm Regulation at the Founding
The government presents a handful of regulations and practices from near the founding that asserted parental or supervisory authority over arms-bearing by eighteen-to-twenty-year-olds.
First, resolutions passed in 1810 and 1824, respectively, prohibited firearm possession by public university students at the Universities of Georgia and Virginia.10 These resolutions, however, are too different in both the “how” and the “why” to establish a compelling historical analogue for contemporary restrictions. The resolutions applied to all enrolled students regardless of age. Moreover, universities had heightened authority over student conduct in loco parentis. Actions taken in loco parentis say little about the general scope of Constitutional rights and protections. See, e.g., Morse v. Frederick, 551 U.S. 393, 416, 127 S. Ct. 2618, 2633 (2007) (Thomas, J., concurring) (“The doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way. It merely limited the imposition of excessive physical punishment.“).
principles underlying the Second Amendment . . . .“) (emphasis added). These resolutions also imposed a markedly different burden on students. See Bruen, 597 U.S. at 29, 142 S. Ct. at 2133. The current handgun ban prohibits law-abiding, adult citizens from buying handguns from FFLs on account of their age, whereas the university resolutions simply disarmed students while on school grounds. Not only are these resolutions inapt in scope and purpose, but we are mindful of the Supreme Court‘s caution against construing too broadly the category of “sensitive places such as schools and government buildings,” as it would “eviscerate the general right to publicly carry arms for self-defense.” See Bruen, 597 U.S. at 30-31, 142 S. Ct. at 2133-34.
Second, the government points to Pennsylvania‘s 1755 Militia Act, which permitted individuals under twenty-one to enroll in the militia only with the prior consent of their parents.11 Similarly, six state laws enacted between 1810 and 1826 required parents to furnish firearms for young men‘s militia duty. The Pennsylvania act is not relevant, as the legislature passed a militia statute in 1777 that set an unqualified enrollment age of eighteen, which remained through ratification of the Second Amendment.12 Further, requirements that parents furnish firearms for their sons’ militia service do not mean that the military-age young men lacked the right to keep and bear (or obtain) such arms themselves. They just as readily imply that eighteen-to-twenty-year-olds were expected to keep and bear arms, even if provided by parents.
Finally, the government cites an 1810 South Carolina treatise discussing the eligibility criteria for constables. At the time, justices of the peace appointed constables who could select “any particular private person” for appointment in “any case of emergency.”13 Although “infants,” i.e., legal minors under the age of 21, were categorically excluded from serving as constables, so also were justices of the peace, lawyers, attorneys, physicians, the poor, the sick, and the elderly.14 Obviously, limiting firearm access did not run parallel to constabulary duty. In any case, exempting “minors” from serving as constables hardly qualifies as “relevantly similar” to curtailing (or in some cases practically prohibiting, for those who lack access to gifts or secondary markets) their ability to acquire a handgun. See Bruen, 597 U.S. at 29, 142 S. Ct. at 2132-33.
In supplemental briefing after the Supreme Court‘s decision in Rahimi, the government makes passing mention that
determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 699, 144 S. Ct. at 1902. Rahimi expressly rejected the contention that, under its historical analysis, “[Petitioner] may be disarmed simply because he is not ‘responsible.‘” Id. at 701, 144 S. Ct. at 1903.
As William Rawle explained in his influential 1829 treatise, “even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”15 Rawle “clearly differentiated between the people‘s right to bear arms and their service in a militia: ‘In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens.‘” Heller, 554 U.S. at 607, 128 S. Ct. at 2806 (quoting W. Rawle, A View of the Constitution of the United States of America 140 (1825)). Taken together, Rawle‘s writings demonstrate that eighteen-to-twenty-year-olds, who were required to enroll in the militia, should be “permitted and accustomed to bear arms,” id., “burdened only if another could make out a specific showing of reasonable cause to fear an injury, or breach of the peace.” Bruen, 597 U.S. at 56, 142 S. Ct. at 2148 (internal quotations omitted); see Kopel & Greenlee, Rights of Young People, supra, at 135-36.
Moreover, contrary to the government‘s recitation of concerns expressed in the colonial and founding eras about the “irresponsibility” of those under twenty-one, these young individuals were expected to keep the peace rather than disturb it. In addition to serving in the militia, eighteen-to-
twenty-year-olds could be obliged to join the posse comitatus, for which the minimum age was often fifteen or sixteen, and bring “such arms or weapons as they have or can provide“. See Kopel & Greenlee, Rights of Young Adults, supra, at 534, n.235. Before the emergence of standing police forces, the posse comitatus was made up of civilians who accompanied sheriffs or other officials in pursuit of fugitives. Gautham Rao, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in the Mid-Nineteenth-Century America, 26 L. & HIST. REV. 1, 10 (2008). In early colonial America, the posse was “transformed . . . from an instrument of royal prerogative to an institution of local self-governance” that “all but precipitated the American Revolution.” Id. at 10. Citizens could be called to “execute arrests, level public nuisances, and keep the peace;” they faced fines or imprisonment if they refused. Id. at 2. Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety.16
2. Reconstruction-era and late-19th Century
The government also contends that 19th century statutes show that eighteen-to-twenty-year-olds’ access to handguns has been controlled for “most of American history.”
Twenty-two jurisdictions, including nineteen states, the District of Columbia, and two municipalities, passed laws between 1856 and 1897 that limited the Second Amendment rights of eighteen-to-twenty-year-olds in some way.17 One of the states prohibited only concealed carry of handguns and other weapons and is less immediately relevant in “how” it burdened the right. See 1885 Nev. Stat. 51, ch. 51, § 1 (“Every person under the age of twenty-one (21) years who shall wear or carry any dirk, pistol, sword . . . concealed upon his person, shall be deemed guilty of a misdemeanor . . . .“). Another comes from Kansas, where the state Supreme Court demonstrated a “fundamental misunderstanding of the right to bear arms, as expressed in Heller” around the time of its enactment. Bruen, 597 U.S. at 68, 142 S. Ct. at 2155 (discussing Salina v. Blaksley, 72 Kan. 230 (1905)). These proposed analogues are less probative in establishing a historical tradition of similar regulations.
The remaining 19th century laws, however, appear to be “relevantly similar” to the current handgun purchase ban, insofar as they purported to restrict firearm access by those under twenty-one-years-old to prevent misuse.18 See Rahimi, 602 U.S. at 692, 144 S. Ct. at 1898 (quoting Bruen, 597
U.S. at 29, 142 S. Ct. at 2132). Proceeding past the bounds of founding-era analogues, however, is risky under Bruen, and courts must “guard against giving [such] postenactment history more weight than it can rightly bear.” Bruen, 597 U.S. at 35, 142 S. Ct. at 2136. The limitation of these late 19th century analogues is not in the “how” or the “why” of regulation, but rather that the laws were passed too late in time to outweigh the tradition of pervasively acceptable firearm ownership by eighteen-to-twenty-year-olds at “the crucial period of our nation‘s history.” NRA II, 714 F.3d at 339 (Jones, J., dissenting from denial of rehearing en banc).
Bruen cautioned that “when it comes to interpreting the Constitution, not all history is created equal.” 597 U.S. at 34, 142 S. Ct. at 2136. Rather, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634-35, 128 S. Ct. at 2821; see Bruen, 597 U.S. at 34, 142 S. Ct. at 2136. As Justice Barrett explained in her concurrence in Rahimi, “for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.” Rahimi, 602 U.S. at 737-38, 144 S. Ct. at 1924 (Barrett, J., concurring); see Bruen, 597 U.S. at 36, 142 S. Ct. at 2137 (quoting Heller, 554 U.S. at 614, 128 S. Ct. at 2810) (“[B]ecause post-Civil War discussions of the right to keep and bear arms ‘took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.‘“); United States v. Connelly, 117 F.4th 269, 281-82 (5th Cir. 2024).
To be sure, Heller and Bruen both considered 19th century sources in their analysis—to confirm and reinforce earlier historical evidence contemporaneous with the Constitution‘s ratification. See Bruen, 597 U.S. at 37, 142 S. Ct. at 2137 (quoting Gamble v. United States, 587 U.S. 678, 702, 139 S. Ct. 1960, 1976 (2019)) (stating that, in Heller, “[t]he 19th-century evidence was ‘treated as mere confirmation of what the Court thought had already been established.‘“). While acknowledging the “ongoing scholarly debate” regarding the most relevant period of history for issues arising under the Fourteenth Amendment, the Court clarified that “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” Id. at 36, 38, 142 S. Ct. at 2137-38 (citations omitted) (emphasis in original). “[T]he scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Id. at 37, 142 S. Ct. at 2137-38 (citing Crawford v. Washington, 541 U.S. 36, 42-50, 124 S. Ct. 1354 (2004) (Sixth Amendment); Virginia v. Moore, 553 U.S. 164, 168-69, 128 S. Ct. 1598 (2008) (Fourth Amendment); Nevada Comm‘n on Ethics v. Carrigan, 564 U.S. 117, 122-25, 131 S. Ct. 2343 (2011) (First Amendment)).
III. Conclusion
Ultimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among “the people” whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 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, 142 S. Ct. at 2154 (citing Heller, 554 U.S. at 614, 128 S. Ct. at 2810). In sum,
We REVERSE the district court‘s judgment and REMAND for further proceedings consistent with this opinion.
Notes
In Rocky Mountain Gun Owners v. Polis, the court upheld a Colorado state firearms purchase ban on 18- to 20-year old adults as a “presumptively lawful regulatory measure” not characterized by “abuse” and therefore outside Second Amendment protection. 121 F.4th 96, 112-128 (10th Cir. 2024). The court excluded this ban from the Bruen analysis allegedly based on Heller‘s statement that regulations on commercial firearms sales are “presumptively lawful.” In our view, as pointed out above, the court committed a category error in its analysis that a complete ban of the most common way for a young adult to secure a firearm is not an abridgement of the Second Amendment right and therefore subject to Bruen‘s test.
Nor is this court‘s decision in McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), to the contrary. McRorey upheld expanded federal background checks for firearms purchases by 18- to 20-year olds. Although this court stated that the “keep and bear” language does not include “purchase,” it also observed that the right to “keep and bear” can “implicate the right to purchase” and noted that is the reason “the Court prohibits shoehorning restrictions on purchase into functional prohibitions on keeping.” Id. at 838 (citing Bruen, 597 U.S. at 38 n.9, 142 S. Ct. at 2138). The case before us is more than a “functional prohibition,” it is an outright ban. We fail to see how a purchase ban unknown at the time of the founding can evade Bruen analysis. See also United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) (applying Bruen to federal law disarming convicted felons).