Judge Rules Ban On Sale Of Firearms To People Under 21 Is Unconstitutional

RICHMOND, Virginia – A Federal District Court judge in Virginia has declared the federal prohibition of handguns being transferred to gun owners under 21 by federal firearms licensees (FFLs) unconstitutional.

The case, Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), was brought by four Virginia men between the ages of 18 and 20 who wanted to purchase handguns from a gun store. John “Corey” Fraser visited a local gun dealer in May of 2022 and attempted to buy a Glock 19x. Because federal law prohibits the transfer of a handgun to someone under the age of 21 through an FFL, Mr. Fraser was denied by the Virginia State Police background check. The other three men decided not to try to purchase handguns because of Fraser’s denial, but all insisted that they would if they could legally do so. Other than age, there are no disqualifying factors.

The men filed a federal lawsuit against the ATF a month later, claiming that the law violated the Second Amendment and the Due Process Clause of the Fifth Amendment. After an initial pre-trial conference last November, the Plaintiffs filed an amended complaint. The government then filed a motion to dismiss. A month later, in December of 2022, the men filed a motion for a summary judgment.

The government claimed that the men lacked standing because they could get a parent to make a straw purchase for them. Doing this would put the burden on the parent, and not all 18-year-olds have contact with their family. The government seemed to be reaching for any reason to claim that the Plaintiffs lacked standing. The judge didn’t buy the state’s argument.

The government also tried to claim that the men didn’t have standing since federal law doesn’t block them from buying a handgun in a private sale. The judge referenced a Fifth Circuit decision in NRA v. ATF that rejected the government’s claim that if a plaintiff can acquire a firearm without going through an FFL, then that plaintiff lacks standing.

“The reasoning in NRA and Reese are persuasive, and, considering that the Government cites no authority to the contrary, NRA and Reese stand unopposed,” Judge Robert Payne wrote.

The judge also discusses how the Bruen decision eliminated the “means end” test. He correctly points out that after Bruen many previous court decisions would not be the same.

“Bruen marks a sea-change in Second Amendment law, throwing many prior precedents into question,” the judge wrote.

The judge points out that the court must only use the original text, history, and tradition of the Second Amendment from 1791. The judge expressly rejects using laws from 1868 when the Fourteenth Amendment was ratified. Some judges have used that date to rule against the Second Amendment, and the Amicus briefs from Brady, Giffords, and Everytown also cited the 1868 date. The judge pointed out that the Fourteenth Amendment did not change the meaning of the Second Amendment, so 1868 is the wrong date to use.

The government tried to argue that there is no right to buy guns. They also argued that there is no right to buy a handgun from a particular source. The judge disagreed with the state’s case and ruled that the right to “keep and bear arms” also includes the right to purchase arms.

“Commonsense and logic tell us that, unless one is a maker of guns, the right to ‘keep’ /have a gun necessarily means that one must purchase it, steal it, be given it by another, or find one that another has lost. That, of course, includes a handgun which was the subject ‘arms’ in Heller. 554 U.S. at 628. Thus, given its ordinary, commonsense, and logical meaning the right to ‘keep arms’ (the right to ‘have’) of necessity includes the right, inter alia, to purchase arms. That then puts an end to the textual inquiry with the conclusion that the conduct at issue is protected by the plain text of the Second Amendment,” the decision reads.

The court also explains that “the people,” as referenced in the Second Amendment, reference a “political community.” A political community is the age of the majority. That age would be 18. Everytown, in their Amicus Brief, claimed that 18-year-olds are not part of “the people.” The judge called out Everytown on their assumption.

The judge points out that the government did not present any evidence of age-based restrictions from the founding era. The government did point to laws in Alabama and Tennessee in 1856. The judge felt this was too far removed from the founding era. To the government’s dismay, the judge refused to consider those laws.

“The Government has not presented any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding, or Early Republic. See Exhibit B {ECF No. 30-2); Gov. Replace Br. at 17-18 {‘there were no laws during [the] period [from 1776 to 1789] explicitly prohibiting the sale of firearms or handguns to individuals under the age of 21’). Nor has the Government offered evidence of such regulation between then and 1791 or in relevant proximity thereafter. For that reason alone, it has failed to meet the burden imposed on it by Bruen,” the judge wrote.

Since the judge was able to come to his conclusion by using the Second Amendment, he stated that there was no need to consider an equal protection analysis. The ATF will likely appeal Judge Payne’s decision to the Fourth Circuit Court of Appeals. The Fourth Circuit has a history of making anti-gun rulings, so many in the gun community are unsure how the case will be decided at the next level.

About John Crump

John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.