We’ve reported many times on the ongoing battle for the Second Amendment rights of 18-, 19-, and 20-year-old Americans who are often discriminated against in a number of ways despite being legal adults.
Now, the U.S. Department of Justice has weighed in on the issue with a formal opinion concluding that the federal ban prohibiting licensed dealers from selling handguns to qualified adults under age 21 is unconstitutional under the Second Amendment.
The September 17 opinion was written by T. Elliot Gaiser, assistant attorney general in the Office of Legal Counsel. In the opinion, Gaiser indicated, in no uncertain terms, that the ban flatly defies the Constitution.
“Our laws deem an 18-year-old ‘mature enough to be drafted, vote, serve as a juror, and be sentenced to death,’” Gaiser wrote in the opening paragraph. “One such 18-year-old represented the United States at the Tokyo Olympics in 2020, shooting skeet. Yet, due to statutes predicated on concerns over an 18-year-old’s ability to handle a pistol as a responsible adult, it would have been a federal felony if a licensed dealer had sold her such a firearm before she left or after she returned to her studies at the University of Texas at Arlington.”
With that preface, Gaiser tore into the statute with vigor, pointing out several flaws as the law relates to the Second Amendment.
“To be sure, a young adult between the ages of 18 and 20 can, in some areas of the country, obtain a firearm in the secondary market,” he wrote. “For example, such an adult may acquire a handgun by gift or in a private, intrastate transfer from an unlicensed seller as a matter of federal law, and parents may purchase handguns on behalf of their children who are under the age of twenty-one. But the practical availability of the secondary market varies considerably, and many states restrict such private transfers.”
Gaiser then applied the 2022 Supreme Court Bruen test to the law.
“At the plain text step, we conclude that a bar against young adults between the ages of 18 and 20 purchasing commonly used firearms falls squarely ‘within the plain text of the Second Amendment,’” Gaiser wrote. “As the Court elaborated earlier this year, this plain-text inquiry ‘entails three subsidiary questions’: (1) whether the regulated party is a member of ‘the people’; (2) whether the regulation concerns ‘Arms;’ and (3) whether the regulation ‘place[s] any restrictions on either the ‘keeping’ (i.e., possession) or the ‘bearing’ (i.e., carrying) of arms.’ Our resolution of each question leads us to conclude that sections 922(b)(1) and (c)(1) are presumptively unconstitutional.”
Gaiser then turned to the second Bruen test: whether the government can prove a historical precedent.
“Historical context—and particularly the Founding-era militia, referenced in the Second Amendment’s prefatory clause—confirms that 18-year-olds are part of the political community,” Gaiser wrote. “Although Heller affirmed the Second Amendment as protecting ‘an individual right unconnected with militia service,’ it acknowledged that the prefatory clause serves a ‘clarifying function.’ The Heller decision also confirms that the Founding-era militia comprised a subset of ‘the people.’ If the militia was a subset of ‘the people’ and if the Founding-era militia included those between 18 and 20 years old, then such individuals were necessarily part of ‘the people’ whom the Second Amendment protects.”
Ultimately, the opinion concluded that the law is unconstitutional as currently applied and enforced.
“… we conclude only that section 922(b)(1) and (c)(1) may not be enforced to impose criminal penalties on dealers who sell handguns, the ‘quintessential self-defense weapon,’ to a class of law-abiding adults who in nearly every other domain are full members of the political community,” the opinion concluded.
Of course, gun-ban advocates were quick to decry the opinion as another Trump-related attempt to draw favor among those in the firearm industry.
“The Department of Justice’s job is to defend the law, not ignore it. This is yet another illegal and dangerous action by the Trump administration to please their gun lobby CEO donors,” Giffords Executive Director Emma Brown said in a hastily released statement. “People ages 18 to 20 are responsible for a disproportionate share of school shootings, public mass shootings and gun homicides overall. There is a reason minimum age laws exist. We will do everything we can to fight this.”
