PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2250

TANNER HIRSCHFELD; NATALIA MARSHALL,

Plaintiffs – Appellants,

v.

BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; MARVIN 

RICHARDSON, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives; MERRICK B. GARLAND, Attorney General,

 Defendants – Appellees.

-------------------------------

BRADY; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; EVERYTOWN 

FOR GUN SAFETY SUPPORT FUND,

 Amici Supporting Appellees.

Appeal from the United States District Court for the Western District of Virginia, at 

Charlottesville. Glen E. Conrad, Senior District Judge. (3:18−cv−00103−GEC)

Argued: October 30, 2020 Decided: July 13, 2021

Before AGEE, WYNN, and RICHARDSON, Circuit Judges.

Vacated, reversed, and remanded by published opinion. Judge Richardson wrote the 

opinion, in which Judge Agee joined. Judge Wynn wrote a dissenting opinion.
2

ARGUED: Elliott Michael Harding, HARDING COUNSEL PLLC, Charlottesville, 

Virginia, for Appellants. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellees. Kirti Datla, HOGAN LOVELLS US LLP, 

Washington, D.C., for Amicus Brady. Angela Ellis, SULLIVAN & CROMWELL LLP, 

Washington, D.C., for Amicus Giffords Law Center to Prevent Gun Violence. ON 

BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas T. Cullen, 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, 

Virginia, for Appellees. Jonathan E. Lowy, Kelly Sampson, BRADY, Washington, D.C.; 

Michael J. West, Washington, D.C., Jon M. Talotta, HOGAN LOVELLS US LLP, Tysons, 

Virginia, for Amicus Brady. Hannah Shearer, Hannah Friedman, San Francisco, 

California, J. Adam Skaggs, GIFFORDS LAW CENTER TO PREVENT GUN 

VIOLENCE, New York, New York; Robert A. Sacks, Leonid Traps, Jackson Froliklong, 

Rachel H. Vangelder, SULLIVAN & CROMWELL LLP, New York, New York, for 

Amicus Giffords Law Center to Prevent Gun Violence. Eric Tirschwell, William J. Taylor, 

Jr., EVERYTOWN LAW, New York, New York; Darren A. LaVerne, Karen S. Kennedy, 

Jessica K. Weigel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New 

York, for Amicus Everytown for Gun Safety Support Fund.
3

RICHARDSON, Circuit Judge:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In 

the law, a line must sometimes be drawn. But there must be a reason why constitutional 

rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional 

rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is 

no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws

and regulations that prevent federally licensed gun dealers from selling handguns to any

18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds 

possess Second Amendment rights. They enjoy almost every other constitutional right,

and they were required at the time of the Founding to serve in the militia and furnish their 

own weapons. We then ask, as our precedent requires, whether the government has met

its burden to justify its infringement of those rights under the appropriate level of scrutiny. 

To justify this restriction, Congress used disproportionate crime rates to craft overinclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing 

so, Congress focused on purchases from licensed dealers without establishing those dealers 

as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the 

challenged federal laws and regulations are unconstitutional under the Second 

Amendment. Despite the weighty interest in reducing crime and violence, we refuse to 

relegate either the Second Amendment or 18- to 20-year-olds to a second-class status. 
4

I. Background

Prospective handgun buyers sued the Bureau of Alcohol, Tobacco, Firearms and 

Explosives seeking an injunction and a declaratory judgment that federal statutes 

prohibiting Federal Firearm Licensed Dealers from selling handguns and handgun 

ammunition to 18-, 19-, and 20-year-olds (and the federal regulations implementing those 

statutes) violate the Second Amendment. See 18 U.S.C. § 922(b)(1), (c)(1); 27 C.F.R. 

§§ 478.99(b)(1), 478.96(b), 478.124(a).1

 

Nineteen-year-old Natalia Marshall had good reason to seek protection. She had 

been forced to obtain a protective order against her abusive ex-boyfriend who, since the 

issuance of the order, had been arrested for unlawful possession of a firearm and controlled 

substances. He was released on bail but never came to court, leading to the issuance of a 

capias for his arrest. Along with the threat from her ex-boyfriend, Marshall works as an

equestrian trainer, often finding herself in remote rural areas where she interacts with 

unfamiliar people. Having grown up training with guns, she believes that a handgun’s ease 

of carrying, training, and use makes it the most effective tool for her protection from these 

and other risks. But because Marshall was 18 when she tried to buy a handgun, a federal 

law prevented her from buying from a licensed dealer who would perform a background 

check to verify that she was not a felon or other prohibited person. She preferred using a 

licensed dealer because they tend to have a wider supply, a good reputation, and a guarantee 

1 Plaintiffs also contend that the laws violate the equal-protection component of the 

Fifth Amendment’s Due Process Clause. Because the laws violate the Second 

Amendment, we need not resolve that question.
5

that the guns have not been used, stolen, or tampered with. She is now 19 and remains 

unable to buy a handgun from a federally licensed dealer for self-defense.

The other Plaintiff, Tanner Hirschfeld, tried to buy a handgun from a licensed dealer

and was denied because he was only 20. But he has since turned 21 and is no longer 

affected by these laws. His claims are therefore moot. See Craig v. Boren, 429 U.S. 190, 

192 (1976). Marshall, however, is not yet 21, so this appeal may still proceed.

A. The challenged laws

In 1964, Congress, concerned about increasing gun violence, began a “field 

investigation and public hearings.” S. Rep. No. 88-1340, at 1 (1964). Congress concluded, 

among other things, “that the ease with which” handguns could be acquired by “juveniles 

without the knowledge or consent of their parents or guardians . . . is a significant factor in 

the prevalence of lawlessness and violent crime in the United States.” Omnibus Crime 

Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 901(a)(2), 82 Stat. 197, 

225; see, e.g., S. Rep. No. 90-1097, at 77 (1968). Statistics, testimony from law 

enforcement, and other evidence showed that a large portion of violent crime and its 

escalation stemmed from minors with guns.2

 Based on the testimony from Internal 

2 The legislative record established that “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). “[M]inors under the age 

of 21 years accounted for 35 percent of the arrests for the serious crimes of violence 

including murder, rape, robbery, and aggravated assault” and 21 percent of the arrests for 

murder. 114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Dodd, Chairman, S. 

Subcomm. on Juvenile Delinquency). Congress found “a causal relationship between the 

easy availability of firearms other than a rifle or shotgun and juvenile and youthful criminal 

behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat. at 225–26. Federal officials 
6

Revenue Service Commissioner Sheldon Cohen, Congress concluded that juveniles 

obtained these guns from licensed dealers who sell to “emotionally immature, or thrill-bent 

juveniles and minors prone to criminal behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 

82 Stat. at 226; see Federal Firearms Act: Hearings Before the H. Comm. on Ways and 

Means, 89th Cong. 31 (1965) (testimony of Sheldon S. Cohen) (explaining that “importers, 

manufacturers, and dealers who operate under licenses issued by the Federal Government” 

are responsible for putting firearms in the hands of juveniles). They also found that “the 

handgun is the type of firearm that is principally used in the commission of serious crime” 

and “the most troublesome and difficult factor in the unlawful use of firearms.” S. Rep. 

No. 89-1866, at 4–7 (1966). Seeking only to curtail the “clandestine” purchase of weapons 

by juveniles without their parents’ knowledge, Congress sought to permit the ownership 

and use of firearms with parental permission. Id. at 58–59; S. Rep. No. 90-1097, at 79; 

114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Thomas J. Dodd).

To address these concerns, Congress passed the Omnibus Crime Control and Safe 

Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197. The preamble declares:

[T]he ease with which any person can acquire firearms other than a rifle or shotgun 

(including criminals, juveniles without the knowledge or consent of their parents or 

testified that “[t]he greatest growth of crime today is in the area of young people, juveniles 

and young adults” and that “[t]he easy availability of weapons makes their tendency toward 

wild, and sometimes irrational behavior that much more violent, that much more deadly.” 

Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinquency 

of the S. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon S. Cohen). 

Law enforcement officers from New York City, Los Angeles, St. Louis, Chicago, 

Philadelphia, and Atlanta provided Congress with “statistics documenting the misuse of 

firearms by juveniles and minors,” which took on “added significance” because the “lawful 

acquisition of concealable firearms by these persons was prohibited by statute” in each of 

those cities. S. Rep. No. 89-1866, at 58–60.
7

guardians, narcotics addicts, mental defectives, armed groups who would supplant 

the functions of duly constituted public authorities, and others whose possession of 

such weapons is similarly contrary to the public interest) is a significant factor in 

the prevalence of lawlessness and violent crime in the United States. 

Id. § 901(a)(2), 82 Stat. at 225.

The Act prohibited licensed dealers from selling handguns to anyone under age 21 

but permitted the sale of shotguns and rifles to those individuals. Id. § 902, 82 Stat. at 230. 

Later that year, Congress amended the law to prohibit licensed dealers from selling any 

firearm to those under 18 and maintained the ban on the sale of handguns for 18-, 19-, and

20-year-olds. Gun Control Act of 1968, Pub. L. No. 90-618, tit. I, § 102, 82 Stat. 1213, 

1218.3

 The section, which has remained unchanged since 1968, reads:

[It is] 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. 

Id. (codified at 18 U.S.C. § 922(b)(1)). The implementing regulation, 27 C.F.R. 

§ 478.99(b)(1), contains similar language. The law did not eliminate any age group’s 

3 The provisions of the Omnibus Crime Control and Safe Streets Act of 1968 cited 

here never took effect. That Act, passed June 19, 1968, would not have taken effect until 

180 days later, or December 16, 1968. Pub. L. No. 90-351, tit. IV, § 907, 82 Stat. at 235. 

The Gun Control Act of 1968, passed October 22, 1968, supplanted the relevant sections 

of the Omnibus Crime Control and Safe Streets Act of 1968, see Pub. L. No. 90-618, tit. I, 

§ 102, 82 Stat. at 1214, and took effect on December 16, 1968, see id. § 105(a), 82 Stat. at 

1226.
8

ability to own, possess, or use a gun. Id.

4

 

Another part of the law requires licensed dealers to obtain a sworn statement of age 

before transferring a firearm to a remote purchaser. 18 U.S.C. § 922(c) (providing that a

licensed dealer “may sell a firearm to a person who does not appear in person at the 

licensee’s business premises . . . only if the transferee submits to the transferor a sworn 

statement” affirming “that, in the case of any firearm other than a shotgun or a rifle, [the 

buyer is] twenty-one years or more of age”). And regulations promulgated by the Bureau 

of Alcohol, Tobacco, Firearms and Explosives require licensed dealers to keep a firearms 

transaction record, Form 4473, which records, among other things, each transferee’s date 

and place of birth. See 27 C.F.R. § 478.124(a) (mandating that “[a] licensed importer, 

licensed manufacturer, or licensed dealer shall not sell or otherwise dispose, temporarily 

or permanently, of any firearm to any person, other than another licensee, unless the 

licensee records the transaction on a firearms transaction record, Form 4473”); id.

§ 478.124(c)(1), (f) (describing the Form 4473 requirements). 

The upshot of these statutes and regulations is that 18-, 19-, and 20-year-olds may 

not buy handguns or handgun ammunition from a licensed dealer. This is what Marshall

challenges.

4

 Dealers may lawfully sell firearms to parents or guardians who may gift them to 

their minor children if the minors are not otherwise prohibited from receiving or possessing 

a firearm. J.A. 45–49 (Opinion of ATF Chief Counsel, No. 23362 (Dec. 5, 1983)). But 

parents may not buy firearms for their children with money provided by children under the 

age of 21. See 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A); see also Abramski v. United States, 

573 U.S. 169, 193 (2014) (finding a violation of §§ 922(a)(6) and 924(a)(1)(A) when an 

individual prohibited from purchasing a gun used a straw man to acquire the gun).
9

B. Procedural history

Plaintiffs’ complaint challenged the facial validity of the federal laws and 

regulations restricting their ability to buy a handgun from a licensed dealer. For relief, they

sought a broad declaration that the challenged provisions violate the Second Amendment 

and an injunction preventing their enforcement. The government moved to dismiss for 

failure to state a claim, and Plaintiffs moved for summary judgment. 

The district court held that the laws were facially valid because they “are among the 

‘longstanding prohibitions’ and ‘conditions and qualifications on the commercial sale of 

arms,’ which the Supreme Court in Heller did not ‘cast doubt’ on.” Hirschfeld v. Bureau 

of Alcohol, Tobacco, Firearms & Explosives, 417 F. Supp. 3d 747, 756 (W.D. Va. 2019). 

The court also found that the laws fell outside the scope of the Second Amendment because 

similar regulations were historically common among the states. Id. In the alternative, the 

court relied on the legislative record and some of the amici’s evidence to find that the laws 

passed intermediate scrutiny. Id. at 758. So the court denied Plaintiffs’ motion for 

summary judgment and dismissed the complaint. Plaintiffs timely appealed. 

We have subject-matter jurisdiction over this appeal under 28 U.S.C. § 1291. The 

denial of summary judgment and the grant of a motion to dismiss are reviewed de novo. 

Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir. 2018); Betton v. 

Belue, 942 F.3d 184, 190 (4th Cir. 2019). 

II. 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 
10

infringed.” U.S. Const. amend. II. This “inherent,” “fundamental,” “pre-existing” 

individual right is not limited to militia service. Dist. of Columbia v. Heller, 554 U.S. 570, 

592–95, 628 (2008). Its core is “the right of law-abiding, responsible citizens to use arms 

in defense of hearth and home.” Id. at 635. So in Heller, the Court struck down a handgun 

ban and a law requiring guns to be unloaded and locked within the home as violating the 

core protection of the Second Amendment. Id. at 635–36. But in doing so, the Court made 

clear that the rights protected by the Second Amendment are not “unlimited.” Id. at 626. 

It did not “cast doubt on” “presumptively lawful regulatory measures,” such as 

“longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 

laws forbidding the carrying of firearms in sensitive places such as schools and government 

buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 

Id. at 626–27, 627 n.26. 

Several years later, the Court struck down a similar handgun ban in Chicago, 

holding that the Second Amendment was incorporated against the states. McDonald v. 

City of Chi., 561 U.S. 742, 750 (2010). It explained that while the original understanding 

of the Second Amendment focused on opposing a tyrannical federal government with a 

standing army, that fear eventually dissipated. Id. at 770–78; see also Heller, 554 U.S. at 

599. Instead, around the time of the Civil War, Congress repeatedly voiced concern that 

southern states were disarming abolitionists and freed slaves to harass and harm them. 

McDonald, 561 U.S. at 772–77. These concerns permeated the drafting and ratification of 

the Fourteenth Amendment, which reinforced the existing civil rights laws. Id. at 775. 

Reviewing this history, the Court held that “it is clear that the Framers and ratifiers of the 
11

Fourteenth Amendment counted the right to keep and bear arms among those fundamental 

rights necessary to our system of ordered liberty.” Id. at 778. 

But the Court has cautioned that it has not “undertake[n] an exhaustive historical 

analysis [] of the full scope of the Second Amendment.” Heller, 554 U.S. at 626. As a 

result, many questions remain, including what framework courts should use to analyze

Second Amendment claims. To fill that gap, most circuits, including our own, seem to 

follow some variation of a two-part inquiry. United States v. Chester, 628 F.3d 673, 680

(4th Cir. 2010).

5 And so we apply that inquiry here. See United States v. Hosford, 843 

F.3d 161, 165 (4th Cir. 2016) (holding that courts “generally engage in the . . . two-pronged 

[Chester] analysis for facial Second Amendment challenges”).

The first step asks “whether the challenged law imposes a burden on conduct falling 

within the scope of the Second Amendment’s guarantee.” Chester, 628 F.3d at 680. This 

“historical inquiry seeks to determine whether the conduct at issue was understood to be 

within the scope of the right at the time of ratification.” Id. The government bears the 

burden of showing that the conduct was not covered by the Second Amendment. See id. 

at 681–82; see also Ezell v. City of Chi., 651 F.3d 684, 702–04 (7th Cir. 2011); Tyler v. 

5 See Gould v. Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018); N.Y. State Rifle & 

Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); United States v. Marzzarella, 614 

F.3d 85, 89 (3d Cir. 2010); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, 

Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 

F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chi., 651 F.3d 684, 702–04 (7th Cir. 2011); 

United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); United States v. Reese, 627 

F.3d 792, 800–01 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 

788 F.3d 1318, 1322 (11th Cir. 2015); Heller v. Dist. of Columbia, 670 F.3d 1244, 1252 

(D.C. Cir. 2011) (Heller II). 
12

Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 688 (6th Cir. 2016). If the historical record 

is silent or ambiguous, we assume the conduct is protected. Chester, 628 F.3d at 680–82. 

If, however, the challenged law does not impose a burden on conduct falling within the 

scope of the Second Amendment’s historically understood guarantee, that is the end of the 

inquiry. Id. at 680. 

But if the challenged law burdens Second Amendment rights, “we move to the 

second step of applying an appropriate form of means-end scrutiny.” Id. Without 

articulating the applicable standard for Second Amendment challenges, the Supreme Court 

found that the handgun ban in Heller would fail any level of scrutiny that applies to 

enumerated constitutional rights. 554 U.S. at 628–29. It did offer some guidance, 

however, in rejecting a rational-basis test. Id. at 628 n.27. So at least some form of 

heightened scrutiny that places the burden on the government must be employed. Chester, 

628 F.3d at 680. 

To determine which form of heightened scrutiny applies to Second Amendment 

challenges, the Fourth Circuit has looked to the First Amendment. Kolbe v. Hogan, 849 

F.3d 114, 133 (4th Cir. 2017) (en banc). Just as the First Amendment employs strict 

scrutiny for content-based restrictions but intermediate scrutiny for time, place, and manner 

regulations, the scrutiny in this context “depends on the nature of the conduct being 

regulated and the degree to which the challenged law burdens the right.” Chester, 628 F.3d 

at 682. 

The Second Amendment’s “core protection” is “the right of law-abiding, 

responsible citizens to use arms in defense of hearth and home.” Kolbe, 849 F.3d at 131 
13

(quoting Heller, 554 U.S. at 634–35). When this right is “severely burden[ed],” we apply 

the “demanding” strict scrutiny test, which requires the government to show that the 

challenged law is “‘narrowly tailored to achieve a compelling governmental interest.’” Id.

at 133, 145 (quoting Abrams v. Johnson, 521 U.S. 74, 82 (1997)). But if the right is 

burdened only on the margins, intermediate scrutiny applies. See United States v. 

Masciandaro, 638 F.3d 458, 470–71 (4th Cir. 2011). And intermediate scrutiny in the

Second Amendment context has been described as requiring “a ‘reasonable fit’ between 

the challenged regulation and a ‘substantial’ government objective.” Chester, 628 F.3d at 

683 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). 

Our inquiry into the challenged provisions’ facial validity changes, however, if we

find them to be presumptively valid based on Heller’s list of “presumptively lawful 

regulatory measure[s].” United States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012); see 

also Hosford, 843 F.3d at 165–67.6 That list includes “longstanding prohibitions on the 

possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of 

firearms in sensitive places such as schools and government buildings, [and] laws imposing 

conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–

27, 627 n.26; see Christopher M. Johnson, Second-Class: Heller, Age, and the Prodigal 

Amendment, 117 Colum. L. Rev. 1585, 1600–03 (2017) (describing measures that 

seemingly fall within Heller’s list). If a law falls within this list, we conduct a more 

6 Though we follow this framework, one might question relying on the list in Heller

to carve out exceptions to the Second Amendment. See, e.g., Kanter v. Barr, 919 F.3d 437, 

453–54 (7th Cir. 2019) (Barrett, J., dissenting) (rejecting reliance on the Heller list).
14

streamlined analysis. Chester, 628 F.3d at 679–80; Moore, 666 F.3d at 318; Hamilton v. 

Pallozzi, 848 F.3d 614, 624 (4th Cir. 2017). This often effectively ends the inquiry and 

upholds the law as facially valid. But not always. Hamilton, 848 F.3d at 624–25; United 

States v. Pruess, 703 F.3d 242, 245–46 (4th Cir. 2012). So before turning to the full twopart test our circuit has adopted, we begin with the presumptively lawful inquiry. 

A. The challenged laws are not presumptively lawful

The government and amici argue that the challenged laws fall into two categories

on Heller’s presumptively valid list: conditions on commercial sales and longstanding 

regulations. Both contentions are incorrect. 

First, these laws are not “conditions and qualifications on the commercial sale of 

arms.” Heller, 554 U.S. at 627. A condition or qualification on the sale of arms is a hoop 

someone must jump through to sell a gun, such as obtaining a license, establishing a lawful 

premise, or maintaining transfer records. See Hosford, 843 F.3d at 166. Here, though, the 

restrictions operate as a total ban on buying a gun from a licensed dealer that has met the 

required conditions and qualifications to sell arms. There is nothing a law-abiding 18- to 

20-year-old can do to buy a handgun from a licensed dealer except wait until she turns 21. 

The amici compare this case to one of our precedents, Hosford, 843 F.3d at 165–67. 

There, we upheld a regulation requiring those who regularly sell firearms to obtain a 

license. Id. at 167. That law regulated only those who wanted to sell guns commercially,

but it placed no restrictions on those seeking to buy guns. Id. at 166. We described the

licensing law as a “mere condition” on commercial sales that “affects only those who 

regularly sell firearms, not owned for personal use, in the course of trade or business for 
15

the principal purpose of profit.” Id. In doing so, we found that requiring regular sellers of 

firearms to obtain a license was a limited condition on commercial sales. Id. (noting the 

requirements for obtaining a license). 

Hosford recognized that a law’s substance, not its form, determines whether it 

qualifies as a condition on commercial sales. Id. (explaining that though the regulation 

was “framed as a prohibition against unlicensed firearm dealing,” it was “in fact a 

requirement that those who engage in the commercial sale of firearms obtain a license”). 

We cited a district court case as an example of a commercial law that would be “so 

prohibitive as to turn [a] condition or qualification into a functional prohibition”: a 

Chicago ordinance that allowed firearm transfers only outside city limits. Id. (citing Ill. 

Ass’n of Firearms Retailers v. City of Chi., 961 F. Supp. 2d 928, 938–939, 947 (N.D. Ill. 

2014)). Similarly, in Ezell, the Seventh Circuit struck down a ban on firing ranges within 

city limits because the ban was “not merely regulatory” but “a serious encroachment” 

preventing “the ‘law-abiding, responsible citizens’ of Chicago from engaging in target 

practice in the controlled environment of a firing range.” 651 F.3d at 708–09; see also

Ezell v. City of Chi., 846 F.3d 888, 894 (7th Cir. 2017) (Ezell II) (finding that a commercial 

zoning and distancing law worked in tandem to functionally preclude any gun ranges, thus 

“severely” restricting Second Amendment rights).

The nature of these functional bans is highlighted by Heller, where the Court struck 

down a handgun possession ban and a law requiring legally held guns to be unloaded and 

locked within the home. 554 U.S. at 635–36. As to the handgun possession ban, the Court 

explained that “the American people have considered the handgun to be the quintessential 
16

self-defense weapon” and concluded that the ban “amount[ed] to a prohibition on an entire 

class of ‘arms.’” Id. at 628–29. Similarly, the Court discussed how the law requiring 

legally held guns to be unloaded and locked within the home amounted to meaningless 

firearm possession because it “ma[de] it impossible for citizens to use [the firearms] for 

the core lawful purpose of self-defense.” Id. at 630. While it was still theoretically possible 

to have a firearm, Heller recognized that the reality was a functional ban. 

Here, the substance of the challenged laws dictates that they are a functional 

prohibition on buyers, not a mere condition or qualification on sellers. They ban an entire 

group of adult, law-abiding citizens from purchasing handguns from licensed dealers, 

substantially burdening the group’s rights. The category of conditions and qualifications 

on commercial sales referenced in Heller is limited, as Hosford highlights, to laws that 

place conditions and qualifications on the seller, like licensing. It does not encompass a 

ban on a class of people seeking to purchase handguns from a qualified seller. 

The dissent argues that any restriction on a buyer is also a restriction on a seller and 

vice versa. No doubt a restriction on buyers indirectly affects sellers by reducing demand. 

But that cannot be enough. If that was enough, then a ban on possession by 18-to 20-yearolds could qualify for this “exception” since that restriction on buyers also impacts the 

commercial sale of firearms. Cf. United States v. Deeb, 175 F.3d 1163, 1167–68 & n.8 

(9th Cir. 1999) (“It is clear to us that the word ‘sale’ contained in all of these statutes and 

regulations refers only to sellers, not buyers.”). In fact, the ban in Heller could be justified 

by blurring this divide. By the dissent’s reading, this “exception” functionally swallows

the Second Amendment. Cf. Marzzarella, 614 F.3d at 92 n.8. 
17

Moreover, this restriction falls asymmetrically on buyers rather than sellers. While 

the licensing regime in Hosford placed burdens on sellers with an indirect effect on buyers, 

the restrictions here fall on the buyers and operate as a functional ban. Under these laws, 

sellers lose a subset of customers but may still sell to anyone above 20. Those in the 

restricted age range, however, can do nothing to purchase a handgun from a licensed 

dealer.7

 And other options are not always readily available to many individuals. Not all 

young adults have friends or family members who are able or willing to gift them a gun. 

And secondary markets are not always available to everyone or easy to navigate safely. 

On the other hand, licensed dealers come with assurances of quality, safety, legality, and 

more. These laws push young law-abiding adults to a less safe, less regulated market to 

defend themselves. Hosford, 843 F.3d at 169 (highlighting the benefits of pushing 

customers to licensed dealers for safety and regulatory purposes). Not to mention that these 

restrictions apply to ammunition as well. So the severity and difference in burdens shows

why the laws at issue operate as a functional ban on 18- to 20-year-olds rather than a 

condition on the sale of firearms. 

Second, some courts have found laws to be presumptively valid because similar 

regulations could be described as “longstanding.” See, e.g., Heller II, 670 F.3d at 1253–

54; Drake v. Filko, 724 F.3d 426, 431–34 (3d Cir. 2013). The government and amici argue 

that age restrictions for purchasing guns are longstanding because many states had similar 

7 This contrasts with regulations that can be met through individual effort, like 

requiring a training course. With a readily accessible course, an individual can meet that 

“condition.” Here, a person can do nothing but wait until their 21st birthday.
18

laws in the late nineteenth and early twentieth centuries. See Nat’l Rifle Ass’n, 700 F.3d at

196–97, 203–04. We do not, however, read the word “longstanding” in Heller as a 

standalone exception to the Second Amendment. Consistent with the text of Heller, this 

Court has never employed that novel view. In our only case discussing the “longstanding” 

requirement, we correctly did not treat it as its own exception. Hosford, 843 F.3d at 166. 

We instead treated it as a potential limit on commercial conditions, requiring the law to be 

both a commercial condition and longstanding to be presumptively valid. Id. As Hosford

recognized, the sentence in Heller makes clear that “longstanding” serves as a modifier of 

part or all of the sentence, not as a freestanding category.8 Heller’s historical, textual, and 

structural analysis counsels against creating a freestanding category of laws exempt from 

Second Amendment scrutiny based solely on how long similar laws have existed. 

The laws are therefore not presumptively lawful either as commercial conditions or

longstanding laws.9

8 The sentence in Heller says, “[N]othing in our opinion should be taken to cast 

doubt on longstanding prohibitions on the possession of firearms by felons and the 

mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools 

and government buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms.” 554 U.S. at 626–27 (emphasis added). “[L]ongstanding” 

modifies prohibitions on felons and the mentally ill. Perhaps it could also modify the other 

categories. But it is not a separate category itself. That we are looking at the sentence 

structure of dicta in a judicial opinion affirms the need for more guidance from the Supreme 

Court. See Kanter, 919 F.3d at 453–54 (Barrett, J., dissenting) (“[J]udicial opinions are 

not statutes, and we don’t dissect them word-by-word as if they were.”). 

9 Even if the laws were presumptively valid, the presumption could be rebutted. 

Binderup v. Att’y Gen. U.S. of Am., 836 F.3d 336, 350–51 (3d Cir. 2016) (en banc) 

(plurality opinion) (holding that presumptions from Heller’s list may be rebuttable because 

“[u]nless flagged as irrebuttable, presumptions are rebuttable”). For while we need not 
19

B. Step one: 18- to 20-year-olds are protected by the Second Amendment

At step one of the Chester inquiry, we ask “whether the conduct at issue was 

understood to be within the scope of the right at the time of ratification.” Chester, 628 

F.3d at 680 (emphasis added) (citing Heller, 554 U.S. at 625). The government bears the 

burden to show that the regulation clearly falls outside the scope of the Second 

Amendment. See id. at 681–82; Ezell, 651 F.3d at 702–03; Tyler, 837 F.3d at 688. And in 

the face of historical silence or ambiguity, we assume the conduct is protected. Chester, 

628 F.3d at 680–82. At the very least, this inquiry requires us to consider text, structure, 

history, and practice to reveal the original public meaning of the Second Amendment. See 

Heller, 554 U.S. at 576–628. The relevant question is: What did the right to keep and bear 

arms mean to the public at the time of ratification?

When evaluating the original understanding of the Second Amendment, 1791—the 

year of ratification—is “the critical year for determining the amendment’s historical 

meaning.” Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012) (citing McDonald, 561 

U.S. at 765 & n.14). Sources near the time of ratification help us understand the original 

public meaning of the Second Amendment. Those sources shed light on how language was 

undertake a historical inquiry for every presumptively valid law, a challenger may still seek 

to rebut the presumption with affirmative historical evidence. But it would be the 

challenger’s burden to make that affirmative showing. So while historical silence or 

ambiguity would typically mean that conduct is covered by the Second Amendment, see 

Ezell, 651 F.3d at 702–03; Chester, 628 F.3d at 681–82, we would presume that conduct 

regulated by a presumptively valid law falls outside the Second Amendment in the face of 

silence or ambiguity, see Heller II, 670 F.3d at 1254–55 (upholding a handgun registration 

scheme as presumptively valid after noting that they found “no basis in either the historical 

record or the record of this case to rebut that presumption”). 
20

understood and how similar laws were read at the time. But because language, laws, cases, 

treatises, practices, and understandings change over time, the light provided dims as we 

move further from ratification. Heller, 554 U.S. at 601–03, 614; Nat’l Rifle Ass’n of Am., 

Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 714 F.3d 334, 337, 339 (5th 

Cir. 2013) (Jones, J., dissenting from denial of rehearing en banc). 

One relevant source is state law, as various state statutes and constitutions illuminate 

the pre-existing right embodied in the language of the Second Amendment. See Heller, 

554 U.S. at 584–86, 600–03 (relying on state constitutions and statutes to clarify the 

linguistic meaning of the Second Amendment). Indeed, the definitions and interpretive 

tools that would have been used to understand the language of state laws would have also 

been used by the public to understand the Constitution. John O. McGinnis & Michael B. 

Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case 

Against Construction, 103 Nw. U. L. Rev. 751, 769–70 (2009). State laws prove especially

helpful in determining who the public would have considered to be included in the

“militia.” This is especially true prior to ratification, as organized militias were creatures

of state law.10 

10 ARTICLES OF CONFEDERATION art. VI, § 4 (1777) (requiring that “every State [ ] 

always keep up a well regulated and disciplined militia” but largely leaving governance to 

the states); Parker v. Dist. of Columbia, 478 F.3d 370, 387–88 (D.C. Cir. 2007), aff’d sub 

nom. Heller, 554 U.S. 570 (2008) (“[T]he existence of the militia preceded its organization 

by Congress.”); David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights 

of Young Adults, 43 S. ILL. U. L.J. 495, 590 (2019) (lack of uniformity or control over the 

militia is part of the reason the Founders sought a stronger federal government). 
21

In 1788, however, the Constitution granted the federal government the power to call 

“forth the Militia to execute the Laws of the Union, suppress Insurrections and repel 

Invasions” and “provide for organizing, arming, and disciplining, the Militia.” See U.S. 

Const. art. I, § 8, cl. 15, 16. And the Supreme Court has held that state militia laws were 

preempted to the extent they conflicted with federal militia laws. Houston v. Moore, 18 

U.S. (5 Wheat.) 1, 24 (1820); J. Norman Heath, Exposing the Second Amendment: Federal 

Preemption of State Militia Legislation, 79 U. Det. Mercy L. Rev. 39, 43–47, 67 (2001). 

So after 1788 federal law became more relevant to understanding the linguistic meaning of 

the term “militia” as used in the Bill of Rights. 

This is not to suggest that state militia laws became irrelevant, as the Constitution 

still recognized important roles for the states in governing and defining their own militias.11 

Indeed, besides appointing officers, the states could pass laws governing their militias to 

the extent they did not conflict with federal law and could freely control their militias when 

11 See U.S. CONST. art. I, § 8, cl. 16 (acknowledging the role of state law in defining 

the militia even when called by Congress by “reserving to the States respectively, the 

Appointment of the Officers, and the Authority of training the Militia according to the 

discipline prescribed by Congress”); THE FEDERALIST No. 46, at 321 (James Madison) (J. 

Cooke ed., 1961) (extolling the virtue of “subordinate governments to which the people 

are attached, and by which the militia officers are appointed”); David Yassky, The Second 

Amendment: Structure, History, and Constitutional Change, 99 MICH. L. REV. 588, 606–

07 (2000) (finding that the militia mainly remained a state institution); cf. Robert Leider, 

Federalism and the Military Power of the United States, 73 VAND. L. REV. 989, 1004–07, 

1013–16 (2020) (finding that the federal role in controlling the militia was much greater 

but states still had some concurrent authority and control when the militia was not called 

by the federal government).
22

they were not called on by the federal government, which was almost always the case.

12

And the public would be most familiar with the composition of their own state militia. So 

both federal and state laws inform the linguistic meaning of “militia” near the time of 

ratification.

But state laws are less illuminating the further one moves from ratification. This is, 

in part, because the states initially were not restricted by the Bill of Rights. Barron v. City 

of Balt., 32 U.S. (7 Pet.) 243, 247–48 (1833). And as time passes, states may diverge from 

a common understanding and experiment, and language is more likely to evolve. New 

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (praising 

12 In Houston v. Moore, 18 U.S. 1, 3–4 (1820), a militiaman failed to attend a federal 

muster in Pennsylvania and was convicted by a military tribunal convened under the 

authority of Pennsylvania. Houston argued that federal law preempted state law on this 

issue. Id. The Court agreed that federal militia laws could preempt state laws but found 

that the militia law did not preclude concurrent jurisdiction in that case. Id. at 29–32. In 

coming to that conclusion, the Court acknowledged the importance of state law for the 

militias and emphasized that in the absence of a conflict with federal law, state law governs: 

It may be admitted at once, that the militia belong to the States, respectively, 

in which they are enrolled, and that they are subject, both in their civil and 

military capacities, to the jurisdiction and laws of such State, except so far as 

those laws are controlled by acts of Congress constitutionally made. 

Congress has power to provide for organizing, arming, and disciplining the 

militia; and it is presumable, that the framers of the constitution contemplated 

a full exercise of all these powers. Nevertheless, if Congress had declined to 

exercise them, it was competent to the State governments to provide for 

organizing, arming, and disciplining their respective militia, in such manner 

as they might think proper. 

Id. at 21. And “militia members served their states far more than they served the national 

government,” leaving most control in the hands of the states. Michael J. Golden, The 

Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of 

Independent State Militias, 21 WM. & MARY BILL RTS. J. 1021, 1033 (2013). 
23

states as laboratories of democracy); Thomas R. Lee et al., Corpus Linguistics & Original 

Public Meaning: A New Tool to Make Originalism More Empirical, 126 Yale L. J. Forum 

20, 22 (2016). The Heller Court recognized this, as it looked to state constitutions and 

laws at the time of ratification to determine the Second Amendment’s public meaning but

noted that post-Civil War sources “do not provide as much insight into its original meaning 

as earlier sources.” 554 U.S. at 614; Nat’l Rifle Ass’n, 714 F.3d at 337, 339 & n.5 (Jones, 

J., dissenting) (discounting late nineteenth- and early twentieth-century sources). Indeed, 

the Supreme Court has made clear that Heller relied on nineteenth-century sources “as 

mere confirmation of what the Court thought had already been established” by Foundingera sources. Gamble v. United States, 139 S. Ct. 1960, 1975–76 (2019). To the extent later 

sources conflict with evidence closer to ratification, their relevance is limited. 

Evidence about the ratification of the Fourteenth Amendment also highlights the 

waning usefulness of state laws. While the Founders sought to oppose a tyrannical federal 

government, the self-defense of freed Blacks was central to the passage of the Fourteenth 

Amendment. Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L. 

Rev. 145, 176 (2008). And McDonald reviewed pre- and post-Civil-War-era laws to show 

that a right to self-defense was part of the Second Amendment that was intended to be 

incorporated. 561 U.S. at 770–78. But in doing so, the Supreme Court’s review focused 

on federal laws, such as the Freedmen’s Bureau Act of 1866, and debates in Congress. Id.

at 773–77. Many of those debates focused on legislators’ alarm about southern laws and 

militias being employed to disarm recently freed slaves. Id. at 772, 775–76. The 

ineffectiveness of federal law at preventing southern states from disarming free people
24

motivated Congress to enact the Fourteenth Amendment to stop states from violating the 

right to keep and bear arms. Id. So we should hesitate to look to Civil-War-era state laws 

that restricted the right to bear arms as evidence of the scope of the Second Amendment 

right at the time of the Founding. 

Looking through this historical lens to the text and structure of the Constitution 

reveals that 18- to 20-year-olds have Second Amendment rights. Virtually every other 

constitutional right applies whatever the age. And the Second Amendment is no different. 

The militia laws in force at the time of ratification uniformly required those 18 and older

to join the militia and bring their own arms. While some historical restrictions existed, 

none support finding that 18-year-olds lack rights under the Second Amendment.

1. The text and structure of the Constitution 

As with any matter of constitutional interpretation, “our inquiry begins with the text 

of the Constitution.” Altman v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003). Both 

the text and structure of the Second Amendment, along with its place within the 

Constitution as a whole, reveal that it protects 18- to 20-year-olds. First, nothing in the 

text of the Second Amendment limits its application by age. Second, the most analogous 

rights to the Second Amendment, those in the First and Fourth Amendments, similarly 

contain no age limits. Third, most other constitutional rights are not age limited. And 

fourth, the few rights that may not apply to those under 18 or that change by age are not

analogous to the Second Amendment, and most of those rights become applicable at age 

18, not 21. 
25

As to the first point, while various parts of the Constitution include age 

requirements, the Second Amendment does not. The Founders set age requirements for 

Congress and the Presidency, but they did not limit any rights protected by the Bill of 

Rights to those of a certain age. See U.S. Const. art. I, § 2 (age 25 for the House); id. art.

I, § 3 (age 30 for the Senate); id. art. II, § 1 (age 35 for the President); cf. id. amend. XXVI 

(setting voting age at 18). In other words, the Founders considered age and knew how to 

set age requirements but placed no such restrictions on rights, including those protected by 

the Second Amendment. 

Turning to the second point, the two rights most like the Second Amendment apply 

to all people regardless of age. The Second Amendment refers to the “right of the people,” 

which is a phrase also used in the First and Fourth Amendments to denote an individual 

right. Heller, 554 U.S. at 579. Like the Second Amendment, both the First and Fourth 

Amendments codify a pre-existing, fundamental, inalienable individual right. Id. at 592. 

The Supreme Court and the Fourth Circuit have used First Amendment law as a 

guidepost for interpreting the Second Amendment. Heller, 554 U.S. at 591, 595, 626; 

Kolbe, 849 F.3d at 133; Chester, 628 F.3d at 678, 682. And the First Amendment applies 

to all persons, even those under 18. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 

503, 506 (1969) (free speech); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 

642 (1943) (free exercise). To be sure, minors’ First Amendment rights are qualified to 

some degree, see Tinker, 393 U.S. at 506, 513, but those qualifiers do not eliminate the 

rights altogether, for time, place, and manner regulations are a part of everyone’s First 

Amendment rights regardless of age, see Ward v. Rock Against Racism, 491 U.S. 781, 791 
26

(1989). Instead, Tinker presumes minors have similar rights as adults because they do not 

“shed their constitutional rights to freedom of speech or expression at the schoolhouse 

gate.” 393 U.S. at 506; accord Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 805 (2011)

(enjoining a California law prohibiting the sale of violent video games to those under 18

without a guardian’s permission as a violation of the First Amendment). 

The logic of Tinker has also been applied in the Fourth Amendment context. It is 

“indisputable” that the Fourth Amendment protects the rights of all persons, including

minors. New Jersey v. T.L.O., 469 U.S. 325, 334 (1985). But like the First Amendment, 

the context matters in determining the scope of the right. See id. at 337–38 (explaining that 

minors’ expectations of privacy differ based on the item searched and whether the search 

occurs on or off school property). But the existence of the right is not limited by age. 

To be clear, in considering analogous rights from the First and Fourth Amendments

and their application to minors, we are not suggesting that the protections of the Second 

Amendment necessarily extend in full force to those under 18.13 Nor do we suggest that 

minors have an unfettered right to purchase firearms. We merely emphasize that the First 

and Fourth Amendments’ protection of “the people,” including those under 18, confirms 

that “the people” protected by the Second Amendment includes at least those 18 and older.

As for the third point, less-analogous rights, such as the enumerated rights to due 

process and equal protection, also apply to all persons, including minors. See, e.g., Brown 

13 Indeed, we do not address the Second Amendment’s application to those under 

18 at all. As discussed in this section, while other constitutional rights apply by at least 

age 18, some have age variation. And the history of the right to keep and bear arms, 

including militia laws, may well permit drawing the line at 18. 
27

v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954) (Do separate-but-equal schools

“deprive the children of the minority group of equal educational opportunities? We believe 

that [they] do[].”); Goss v. Lopez, 419 U.S. 565, 574 (1975) (due process). Newer 

unenumerated rights do as well. See, e.g., Planned Parenthood of Central Mo. v. Danforth, 

428 U.S. 52, 74 (1976) (enjoining a law requiring a minor to obtain parental consent to get 

an abortion, declaring that “[c]onstitutional rights do not mature and come into being 

magically only when one attains the state-defined age of majority”). 

And while the Eighth Amendment applies differently based on age, it does so by 

providing greater constitutional protection to those under 18. In Roper v. Simmons, 543 

U.S. 551, 574 (2005), the Supreme Court held that the Eighth Amendment’s application to 

minors prohibited the use of the death penalty for those who were under 18 at the time they 

committed the offense. The Court drew the line at that age and has held to it. For “[t]he 

age of 18 is the point where society draws the line for many purposes between childhood 

and adulthood. It is . . . the age at which the line for death eligibility ought to rest.” Id. 

Since Roper, no federal court has expanded this logic to provide greater protection to those 

over 18. Similarly, no federal court has ever held that one loses protection under the Eighth 

Amendment—or somehow escapes its applicability altogether—by reaching the age of 

majority. 

Finally, there are some rights that do not apply to those under 18. But those rights

also suggest that 18-year-olds are protected by the Second Amendment because the Court 

has drawn the line for their application at age 18, not 21. The jury trial right does not apply 

to juvenile proceedings, McKeiver v. Pennsylvania, 403 U.S. 528, 545, 550–51 (1971), but 
28

many state laws end the jurisdiction of juvenile courts at age 17, with a few at age 16 and 

just recently one at age 18, Anne Teigen, Juvenile Age of Jurisdiction and Transfer to Adult 

Court Laws, Nat’l Conf. St. Legis. (April 8, 2021), (saved as ECF opinion attachment). 

And many view the protections of juvenile proceedings for minors as better and want to 

increase the age at which they apply. See McKeiver, 403 U.S. at 545, 550. The other

relevant right is voting, which the Constitution explicitly limits to those 18 and older. U.S. 

Const. amend. XXVI.

There are only two unenumerated rights states may restrict for those under a certain 

age: marriage and sex. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (finding a right 

for sexual autonomy but differentiating minors); Obergefell v. Hodges, 576 U.S. 644, 675 

(2015) (holding that the right to marry is fundamental). But even still, the legal age of

marriage in all but two states is 18, and even in those two states it appears that one can 

marry at 18 with parental consent. See Miss. Code Ann. § 93-1-5; Neb. Rev. Stat. §§ 42-

105, 43-2101. For sex, the oldest state-imposed age of consent (the age at which an 

individual can legally consent to sexual intercourse) is 18.14 So even these rights apply to 

some degree to 18-, 19-, and 20-year-olds. 

But whatever their import, the treatment of these rights cannot overcome the strong 

evidence that the Second Amendment right vests at least at age 18. Indeed, it would be 

odd to treat the Second Amendment like marriage and sex rather than contemporaneously 

14 Office of the Assistant Secretary for Planning and Evaluation, Statutory Rape: A 

Guide to State Laws and Reporting Requirements. Sexual Intercourse with Minors, U.S.

DEP’T OF HEALTH & HUMAN SERVS. (Dec. 15, 2004), (saved as ECF opinion attachment); 

see, e.g., TENN. CODE ANN. § 39-13-506 (age 18); CAL. PENAL CODE § 261.5 (age 18).
29

ratified rights such as the First and Fourth Amendments that have been described as 

fundamental pre-existing rights analogous to the Second Amendment. Heller, 554 U.S. at 

592.

There are many things that minors and even those under 21 cannot do. See Ent. 

Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot 

drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). 

But none of those restrictions implicate constitutional rights, so states have great leeway to 

regulate those activities under their general police powers. And while the Court has 

“recognized that the State has somewhat broader authority to regulate the activities of 

children than of adults,” that does not mean that children necessarily have different rights 

than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the 

states’ interests are stronger with regard to minors so restrictions may more easily pass 

constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude 

that 18- to 20-year-olds have no Second Amendment rights when almost every other 

constitutional right affords them protection. This conclusion becomes inescapable when 

we consider the history. 

2. Founding-era militia laws 

The historical evidence from the Founding shows that 18- to 20-year-olds are 

protected by the Second Amendment. Founding-era militia laws provide powerful 

historical evidence. Near the time of ratification, the federal government and every state 

required 18-year-old men to be part of the militia and bring their own arms. See Heller, 
30

554 U.S. at 596, 627. This evidences the Founding public’s understanding that the 

“militia,” and thus the Second Amendment, encompassed 18-year-olds. 

These Founding-era militia laws illuminate the broader individual right enshrined 

in the Second Amendment. Id. at 600–03. The phrase “[a] well regulated Militia, being 

necessary to the security of a free State” augments the individual “right of the people” and 

helps us understand its scope and resolve ambiguities. Id. at 577–78, 595–99. 

The civic purpose of preserving our nation’s security sits at the Second 

Amendment’s core. Id. at 597–98. Being part of the militia, having a firearm, and being 

prepared for action were vital to protecting the new Republic. This civic purpose addressed 

internal threats because there was no police force. So members of the militia “served 

various law enforcement functions,” including protection “against private thugs, such as 

pirates and renegade Indians, as well as against more organized threats.” Amar, supra, at

164. For this reason, many states required citizens to be armed and keep firearms at home 

even outside militia service.15 Indeed, these practices have deep roots in the common-law 

15 Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep 

Arms in Early America: The Legal Context of the Second Amendment, 25 L. & HIST. REV.

139, 145–48 (2007); Clayton E. Cramer, Colonial Firearm Regulation, 16 J. ON FIREARMS 

& PUB. POL’Y 1, 1–15 (2004); Young v. State, 992 F.3d 765, 795–96 (9th Cir. 2021) (en 

banc); Heller, 554 U.S. at 601 (citing 19 COLONIAL RECORDS OF THE STATE OF GEORGIA

137–39 (A. Candler ed., 1911 (pt. 1)) (1770), for the idea that some states required citizens 

to take guns to church); see, e.g., A Supplementary Act to the Act Entitled, an Act for 

Better Settling and Regulating the Militia of this Colony of New Jersey § 4 (1757), in ACTS 

OF THE GENERAL ASSEMBLY OF THE PROVINCE OF NEW JERSEY 139, 141 (1761) (requiring 

individuals to keep firearms in their homes); An Act for the Better Security of this Province 

Against the Insurrections and Other Wicked Attempts of Negroes and Other Slaves § 1

(1747), in STATUTES AT LARGE OF SOUTH CAROLINA 417, 417–19 (1836) (requiring guns 

at church due to a fear of slave uprisings); NEW HAVEN’S SETTLING IN NEW ENGLAND AND 
31

doctrines of hue and cry and the posse comitatus, where privately armed citizens would be 

called to respond to crimes or other public emergencies.

16 

Militias were also important to repel invasions while reducing the need for the 

standing army feared at the time of the Founding. Heller, 554 U.S. at 597–98; The 

SOME LAWS FOR GOVERNMENT 64 (London, C. J. Hoadly ed., 1656) (requiring constant 

readiness and arms for patrol); An Act for Establishing a Militia Within this Government 

(1742), in LAWS OF THE GOVERNMENT OF NEW-CASTLE, KENT AND SUSSEX UPON 

DELAWARE 171, 171 (1741) (requiring the keeping of arms and ammunition by 

individuals’ side for the duration of the act); Proceedings of the Virginia Assembly (1619), 

in NARRATIVES OF EARLY VIRGINIA 245, 273 (Lyon Gardiner Tyler ed., 1907) (all must 

be armed in church); Records of the General and Particular Courts (1643), in THE PUBLIC 

RECORDS OF THE COLONY OF CONNECTICUT 1, 95 (1850) (requiring guns at public 

meetings and to travel because of the threat of Native Americans); Proceedings of the 

Council of Maryland (1642), in 3 ARCHIVES OF MARYLAND 45, 103 (1885) (requiring guns 

in church and to respond to alarms); Laws of the Colony of New Plymouth (1657), in THE 

COMPACT WITH THE CHARTER AND LAWS OF THE COLONY OF NEW PLYMOUTH 28, 102 

(1836) (requiring guns in church seasonally); The Colony Records (1636), in 1 RECORDS 

OF THE GOVERNOR AND COMPANY OF THE MASSACHUSETTS BAY IN NEW ENGLAND 71, 

190 (1853) (requiring those age 18 and older to bring guns to public meetings and to travel); 

Newport Records (1639), in 1 RECORDS OF THE COLONY OF RHODE ISLAND AND 

PROVIDENCE PLANTATIONS IN NEW ENGLAND 87, 94 (1856) (requiring guns for public 

meetings and travel).

16 See David B. Kopel, The Posse Comitatus and the Office of Sheriff: Armed 

Citizens Summoned to the Aid of Law Enforcement, 104 J. CRIM. L. & CRIMINOLOGY 761,

788–805 (2014); Brittany Occhipinti, We the Militia of the United States of America: A 

Reanalysis of the Second Amendment, 53 WILLAMETTE L. REV. 431, 444–46 (2017); see 

also James Wilson, Lectures on Law, in 2 COLLECTED WORKS OF JAMES WILSON 1017 

(Kermit L. Hall & Mark David Hall eds., 2007) (“No man above fifteen and under seventy 

years of age, ecclesiastical or temporal, is exempted from” posse comitatus service.); 3 

JOHN ADAMS, LEGAL PAPERS OF JOHN ADAMS 285 (L. Kinvin Wroth & Hiller B. Zobel 

eds., 1965) (During the trial of the soldiers responsible for the Boston Massacre, the court’s 

charge to the jury included the traditional duty of private persons to respond to the hue and 

cry and to carry arms: “It is the duty of all persons (except women, decrepit persons, and 

infants under fifteen) to aid and assist the peace officers to suppress riots &c. when called 

upon to do it. They may take with them such weapons as are necessary to enable them 

effectually to do it.”).
32

Federalist No. 29, at 182–87 (Alexander Hamilton) (J. Cooke ed., 1961); The Federalist 

No. 46, at 321 (James Madison).

17 The third purpose of the militia is closely related: to 

act as a check on a tyrannical government.

18 Many feared that a standing army would be 

used to disarm and oppress the people.19 The militia democratized self-defense and gave 

the people an important check on and voice in government action.20 In order to serve these 

purposes, a wide swath of the public had to be armed. 

As George Mason observed, “[T]o disarm the people; that [is] the best and most 

effectual way to enslave them.” 3 Jonathan Elliot, The Debates in the Several State 

17 A militia was first established by King Alfred in the ninth century to protect 

communities from Danish incursions. Kopel, supra note 16, at 771–72; Occhipinti, supra 

note 16, at 444–46. The public was called upon to bring their own arms in defense of their 

communities during an emergency. Occhipinti, supra note 16, at 444; see, e.g., Assize of 

Arms (1181), reprinted in 1 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 85 (Carl 

Stephenson & Frederick George Marcham eds. & trans., 1937) (requiring all freemen to 

possess arms in defense of the nation). The militia and related posse comitatus were vital 

to the American Revolution, as a privately armed and trained population could respond 

quickly to British incursions within their communities. See Kopel, supra note 16, at 792–

95; Golden, supra note 12, at 1030, 1039–41.

18 Heller, 554 U.S. at 597–98, 608–09; Ronald S. Resnick, Private Arms as the 

Palladium of Liberty: The Meaning of the Second Amendment, 77 U. DET. MERCY L. REV.

1, 40–41 (1999); Occhipinti, supra note 16, at 460–62; Golden, supra note 12, at 1029, 

1047–50, 1063–67.

19 United States v. Miller, 307 U.S. 174, 179 (1939); Golden, supra note 12, at 1029, 

1047–50; Resnick, supra note 18, at 29; Yassky, supra note 11, at 597.

20 Occhipinti, supra note 16, at 444–46; Golden, supra note 12, at 1029, 1047–50; 

see also JOEL BARLOW, ADVICE TO THE PRIVILEGED ORDERS IN THE SEVERAL STATES OF 

EUROPE RESULTING FROM THE NECESSITY AND PROPRIETY OF A GENERAL REVOLUTION 

IN THE PRINCIPLE OF GOVERNMENT 24–25 (3d ed. 1793) (noting that Europeans did not 

trust their people with arms because they saw arms “as a mark of an uncivilized people, 

extremely dangerous to a well ordered society” but because Americans were their own 

sovereign, “the people are civilized, that they are with safety armed”).
33

Conventions on the Adoption of the Federal Constitution 380 (1863). Hamilton noted “[i]f 

the representatives of the people betray their constituents, there is then no resource left but 

in the exertion of that original right of self-defence, which is paramount to all positive 

forms of government.” The Federalist No. 28, at 178 (Alexander Hamilton) (J. Cooke ed.,

1961); see also 3 Joseph Story, Commentaries on the Constitution of the United States 746 

(1833) (calling the right to keep and bear arms “a strong moral check against the usurpation 

and arbitrary power of rulers”). Thus, as Patrick Henry concluded, the people must 

“[g]uard with jealous attention the public liberty. Suspect every one who approaches that 

jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up 

that force, you are inevitably ruined.” Elliot, supra, at 45. So “[t]he great object is, that 

every man be armed . . . . Every one who is able may have a gun.” Id. at 386. 

Madison and other Founders often explained how the militia was key to safety and 

defense broadly. To serve those functions, and to avoid becoming a standing army, 

individuals needed to be privately armed. Indeed, one of the “advantage[s]” that Madison 

thought “Americans possess over the people of almost every other nation” was the 

“advantage of being armed.” The Federalist No. 46, at 321 (James Madison). 

In public discourse, Madison contrasted this American advantage of an armed 

citizenry with Europe, where governments were “afraid to trust the people with arms.” Id.

at 322. For European governments recognized an armed citizenry could not be conquered 

by the largest standing army that could be supported. Id. Indeed, the American Revolution 

proved this very point, as American militias could not be conquered by British regulars. 

Id. at 321. If European powers permitted an armed citizenry and local governments that 
34

appointed militia officers, then “the throne of every tyranny in Europe would be speedily 

overturned, in spite of the legions which surround it.” Id. at 322. For Madison, this 

combination in America—the “advantage of being armed” alongside “the existence of 

subordinate governments, to which the people are attached and by which the militia officers 

are appointed”—formed “a barrier” against tyranny. Id. at 321–22. And the Constitution 

protected both advantages to check arbitrary power: Its structural design protected local 

governments separate from the federal government and the Second Amendment protected 

private citizens’ right to privately keep and bear arms.

This civic purpose reflected the central belief that people voluntarily created the 

state to protect their own rights from others.21 And one of those rights was selfpreservation, which citizens could assert individually in self-defense.

22 The privately 

armed populace furthered these interconnected rights and duties at the core of the state and 

21 1 WILLIAM BLACKSTONE,COMMENTARIES 123–25, 130 (St. G. Tucker ed., 1803); 

M. de Montesquieu, The Spirit of the Laws bk I, pp. 4–6, bk XXVI, pp. 211 & 231, in THE 

COMPLETE WORKS OF M. DE MONTESQUIEU (London: T. Evans 1777); John Locke, TWO

TREATISES OF GOVERNMENT 129–30 (Haffner Pub. 1947) (1694); Thomas Hobbes, 

LEVIATHAN ch. XIII–XIV (London, George Routledge & Sons ed., 1894) (1651); see also 

Kopel, supra note 16, at 826; Don B. Kates Jr., The Second Amendment and the Ideology 

of Self-Protection, 265 CONST. COMMENT. 87, 89–92, 101–04 (1992). 

22 Hobbes, supra note 21, at ch. XIII–XIV; Brannon P. Denning, Palladium of 

Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth 

Century, 21 OKLA. CITY U. L. REV. 191, 207 (1996) (“[T]he Founders believed that the 

right to arms was a necessary ingredient of the moral duty of self-defense.” (quoting Kates, 

supra note 21, at 91)).
35

the Second Amendment: defense of oneself and one’s community. See Heller, 554 U.S. 

at 577–78.23

So while the individual right of self-defense was “the central component” of the 

Second Amendment, the civic purpose “was codified” based on the fear that a tyrannical 

government would eliminate the civically minded militia. Id. at 597–99. Both reflected 

the pre-existing right of self-defense that the Founders valued as the core purpose of the 

state. “In the Founders’ world, individual self-protection and community defense were not 

wholly separate spheres.” Amar, supra, at 164.24

The relationship between the narrower civic purpose and the broader individual 

right provides us one way to understand the scope of the individual right. The individual 

right belongs to “the people,” which “unambiguously refers to all members of the political 

community.” Heller, 554 U.S. at 580. The “militia,” on the other hand, is “a subset of ‘the 

people’—those who were male, able bodied, and within a certain age range.” Id. Those 

excluded from the militia were not excluded from the Second Amendment, but those 

23 Kopel, supra note 16, at 826; Occhipinti, supra note 16, at 457–58; Golden, supra 

note 12, at 1024.

24 Indeed, some militias were voluntary and used private arms, such as privateers 

protecting merchants with private battleships during the 1798–1800 Quasi-War between 

the United States and France. See An Act to Authorize the Defence of the Merchant 

Vessels of the United States Against French Depredations, ch. 60, §§ 1–2, 1 Stat. 572, 572 

(1798) (authorizing private ships to resist hostilities from French ships, capture them in 

return, and receive a portion of the salvage); An Act Further to Protect the Commerce of 

the United States, ch. 68, § 2, 1 Stat. 578, 579 (1798) (allowing commissioned private ships 

to capture armed French ships to the same extent as the Navy). See generally Alexander 

Tabarrok & Alex Nowrasteh, Privateers! Their History and Future, FLETCHER SECURITY

REV., Winter 2015, at 55; Golden, supra note 12, at 1030, 1063–65. The civic and 

individual purposes could and did reinforce each other. 
36

included in the militia were surely covered by the Second Amendment. So because the 

militia is a subset of “the people,” those in the militia share the same rights as “the people.”

With this in mind, we look to militia laws in effect at the time of ratification to 

determine how the public at that time would have understood the word “militia.” Those 

who were obligated to serve in the militia and bring their own arms fall unambiguously 

within the original public meaning of “the people” who had a right “to keep and bear 

Arms.”

a. Militia laws at the time of the Founding show that 18-yearolds have Second Amendment rights

“Men trained to Arms from their Infancy, and animated by the Love of Liberty, will 

afford neither a cheap or easy Conquest.”25

Every militia law near the time of ratification required 18-year-olds to be part of the 

militia and bring their own arms. Around the time the Second Amendment was ratified in 

1791, Congress began debating invoking its power under the Militia Clauses to better 

organize the militias for federal use in emergencies. U.S. Const. art. I, § 8, cls. 15–16. The 

effort was pushed by Secretary of War Henry Knox, who argued to Congress that while 

the “military age has generally commenced at sixteen,” the age for the federal select militia 

should be set at 18 because “the youth of sixteen do not commonly attain such a degree of 

robust strength as to enable them to sustain without injury the hardships incident to the 

field.” 2 Annals of Cong. 2088, 2092, 2099 (1790). One of the first rejected proposals

25 2 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789, at 169 (1905) 

(Continental Congress’s address to the inhabitants of Great Britain in 1775).
37

suggested that the federal government would arm everyone, but this drew sharp rebukes, 

such as Representative Wadsworth arguing “their parents would rather give them guns of 

their own, than let them take others from the U.S. which were liable to be taken away at 

the very moment they were most wanted.” 14 Documentary History of the First Federal 

Congress: Debates in the House of Representatives, Third Session: December 1790–March

1791, at 62 (1995). This proposal raised the concern that any check on tyranny could be 

undermined by federal control of the militia’s arms. In the end, Congress settled on the 

first federal Militia Act in 1792. That Act required “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 after excepted) 

shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, ch. 33, § 1, 

1 Stat. 271, 271 (emphasis added). The Act also required that “every citizen so enrolled 

and notified, shall, within six months thereafter, provide himself” with a firearm and

ammunition. Id.

26 

26 “That every citizen so enrolled and notified, shall, within six months thereafter, 

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare 

flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four 

cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper 

quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder-horn, 

twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall 

appear, so armed, accoutred and provided, when called out to exercise, or into service.” 

Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271, 271. This act was superseded by the Act of 

February 28, 1795, 1 Stat. 424, which kept the same substantive provisions but made the 

President’s authority to call the militia permanent. 
38

State laws also help us understand the original public meaning of “militia” because, 

as the Constitution recognizes, many militias were defined by state laws. See U.S. Const. 

art. I, § 8, cl. 16. And those state laws only further prove the point. 

Before ratification, when militias were solely defined by state law, most colonies

and states set the age for militia enlistment at 16.

27 Right after ratification, when federal 

law set the age at 18, every state also set their militia age at 18. See Appendix 2. Like the 

federal Militia Act, these state militia laws required enrolled citizens, including 18-yearolds, to bring their own firearms and ammunition either explicitly or as a general 

background principle.28 Generally firearms were owned privately and kept by the members 

27 J.A. 303–05; Cramer, supra note 15, at 2–10. While not every state set its militia 

enlistment age at 16 before ratification and some fluctuated, no state appears to have set its

age higher than 18 in decades preceding ratification. See Appendix 1. 

28 Every militia act around the time of ratification required enlistees to bring their 

own equipment, including a rifle or musket. As the Supreme Court has said, “the Militia 

comprised all males physically capable of acting in concert for the common defense. ‘A 

body of citizens enrolled for military discipline.’ . . . And further, that ordinarily when 

called for service these men were expected to appear bearing arms supplied by themselves

and of the kind in common use at the time.” Miller, 307 U.S. at 179 (emphasis added); see 

id. at 179–82 (citing some of the same militia laws and explaining that “as in England, the 

militia system was based on the principle of the assize of arms. This implied the general 

obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to 

cooperate in the work of defence,” and noting that the colonies enacted laws “intended to 

insure the possession of arms and ammunition by all who were subject to military service” 

(quoting 1 OSGOOD, THE AMERICAN COLONIES IN THE 17TH CENTURY, ch. XIII)); see also,

e.g., An Act to Amend & Reduce into One Act, the Several Laws for Regulating and 

Disciplining the Militia, and Guarding Against Invasions & Insurrections, ch. 1, § 3 (1785), 

in 12 WILLIAM WALLER HENING, THE STATUTES AT LARGE;BEING A COLLECTION OF ALL 

THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 

1619, at 9, 12 (1823) (cited by Miller and requiring personal arms); An Act to Organize 

the Militia of this State § 10 (1794), in AT THE GENERAL ASSEMBLY OF THE GOVERNOR 

AND COMPANY OF THE STATE OF RHODE-ISLAND AND PROVIDENCE-PLANTATIONS,BEGUN 
39

of the militia in their homes as the government did not provide or keep the guns unless the 

citizen was too poor to afford one.

29 That 18-year-olds had to be part of the militia and

bring their own arms establishes that 18-year-olds were included among “the people” who 

enjoyed the Second Amendment right to keep and bear arms. See Heller, 554 U.S. at 580. 

Many of those in the militia were quite young. As the Founder Tench Coxe wrote, 

“the powers of the sword are in the hands of the yeomanry of America from sixteen to 

AND HOLDEN BY ADJOURNMENT AT EAST-GREENWICH, WITHIN AND FOR THE STATE 

AFORESAID, ON THE LAST MONDAY IN MARCH, IN THE YEAR OF OUR LORD ONE 

THOUSAND SEVEN HUNDRED AND NINETY-FOUR, AND OF INDEPENDENCE THE 

EIGHTEENTH 14, 15, 21–22 (1794) (requiring those enlisted in Rhode Island to bring 

firearms and ammunition); An Act for the Regulation of the Militia of the Commonwealth 

of Pennsylvania §§ 2, 5 (1793), in THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682

TO 1801, at 454, 456–57 (1909) (same requirement for all except those under 21 during 

peacetime). And it was generally understood as a background principle that enlistees had 

to provide their own weapons unless they were too poor to do so. See Churchill, supra 

note 15, at 147 (concluding that those eligible for militia duty generally had to bring their 

own guns); Cramer, supra note 15, at 2 (“[A]lmost all colonies required white adult men 

to possess firearms and ammunition” and “[s]ome statutes were explicit that militiamen 

were to keep their guns at home; others imply the requirement, by specifying fines for 

failing to bring guns to muster or church.”); James Lindgren & Justin L. Heather, Counting 

Guns in Early America, 43 WM. & MARY L. REV. 1777, 1782 (2002) (“[G]uns were 

required by law to be supplied by adult males as part of their militia service.”). 

Some laws provided by the government also make this point. A few laws exempted 

those under 21 from serving in the militia during peacetime. But those laws still required 

those enrolled to bring their own firearm. See, e.g., An Act to Establish an Uniform Militia 

Throughout this State §§ 1, 4, in LAWS OF THE STATE OF DELAWARE 123, 123, 125–26 

(1807). Similarly, later state laws that held parents liable for a minor’s fees and equipment 

still required minors to bring their own firearm and ammunition; the laws just mandated 

that the minor’s parents provide his firearm or pay a fee if the minor could not afford a gun. 

J.A. 298–301; see, e.g., An Act, for Regulating and Governing the Militia of this State § 15

(1797), in 2 THE LAWS OF THE STATE OF VERMONT, DIGESTED AND COMPILED:INCLUDING 

THE DECLARATION OF INDEPENDENCE, THE CONSTITUTION OF THE UNITED STATES, AND 

OF THIS STATE 122, 131–32 (1808).

29 Churchill, supra note 15, at 141–42, 145–47; Cramer, supra note 15, at 24–30.
40

sixty . . . . Their swords . . . are the birthright of an American.” Tench Coxe, A 

Pennsylvanian, No. 3, Pa. Gazette, Feb. 20, 1788, at 22. Because the individual right is 

broader than the Second Amendment’s civic purpose, those required to serve in the militia 

and bring arms would most assuredly have been among “the people” who possessed the 

right. See Heller, 554 U.S. at 579–81. And the indisputable historical evidence establishes 

that 18-year-olds had to join the militia and bring their own firearms. So those 18 and older 

would have been understood to be covered by the Second Amendment at the Founding.

b. The militia laws cited by the government do not undermine 

the conclusion that 18-year-olds are protected

Despite the overwhelming evidence that federal and state militia laws around the 

Founding required those 18 and older to serve in the militia with their own firearm, the 

government suggests that more specific militia exclusions and requirements undermine the 

general laws. But none of the laws it cites undermine the Founding-era evidence that those 

older than 18 have Second Amendment rights. 

In the decades after ratification, several states enacted laws that at times raised the 

age for mandatory militia service to 21. But even if 18-year-olds were not part of the

compulsory militia, they were not necessarily excluded either from service in the militia or

the Second Amendment’s protection. For, once again, the militia is but a subset of those 

with Second Amendment rights. Heller, 554 U.S. at 580. For example, most militia laws 

did not require those over a certain age to serve in the militia, but we would not suggest 

that those over that age lack any Second Amendment rights. Militia laws are helpful 

because they provide a baseline for determining the relevant political community that 
41

enjoyed Second Amendment rights. They support the affirmative conclusion that 18-yearolds are protected by the Second Amendment. But even if history were less clear, 18-yearolds would not necessarily be excluded from the Second Amendment’s protections.

30 

Further, the substance and timeline of those laws fail to aid the government. The 

law closest to ratification cited by the government was enacted by Pennsylvania in 1793. 

That law, like all the militia laws at the Founding, required 18-year-olds to join the 

militia.31 It only exempted those under 21 from active militia service during times of peace. 

The next closest law to ratification comes from Delaware in 1807. It also required 18-yearolds to be enrolled in the militia, only exempting those under 21 from duty in peacetime.32 

The remaining laws are decades newer, and even some of those only provide peacetime 

30 Had 18- to 20-year-olds not been required to join the militia at the Founding, 

perhaps Plaintiffs would be left with silence or ambiguity. If Heller’s list of presumptively 

lawful measures were then to apply, the challengers would lack the necessary affirmative 

historical evidence to overcome it. But neither is the case here, as the presumption does 

not apply and even if it did, the laws put forth by the government do little to undermine the 

affirmative case that those 18 and older are protected.

31 J.A. 289; An Act for the Regulation of the Militia of the Commonwealth of 

Pennsylvania § 1 (1793), in 14 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682

TO 1801, at 454, 455 (1909).

32 J.A. 287; An Act to Establish an Uniform Militia Throughout this State §§ 1, 4

(1807), in LAWS OF THE STATE OF DELAWARE PASSED AT A SESSION OF THE GENERAL 

ASSEMBLY WHICH WAS BEGUN AND HOLDEN AT DOVER, ON TUESDAY THE FOURTH, AND 

ENDED ON THURSDAY THE THIRTEENTH OF AUGUST, IN THE YEAR OF OUR LORD, ONE 

THOUSAND EIGHT HUNDRED AND SEVEN 123, 123, 125 (1807). Another Delaware law

closer to ratification also required 18-year-olds to enlist but similarly excepted those 21 

and younger from militia duty. See An Act for Establishing the Militia in this State, §§ 1–

2 (1793), in 2 LAWS OF THE STATE OF DELAWARE FROM THE FOURTEENTH DAY OF 

OCTOBER, ONE THOUSAND SEVEN HUNDRED, TO THE EIGHTEENTH DAY OF AUGUST, ONE 

THOUSAND SEVEN HUNDRED AND NINETY-SEVEN 1134, 1134–35 (1797).
42

exemptions. J.A. 287–89; see also Nat’l Rifle Ass’n, 714 F.3d at 342 (Jones, J., dissenting) 

(making a similar argument that a 1843 Ohio law fails to show that 18-year-olds lack 

Second Amendment rights because even though they were exempt from service during 

peacetime, they were still required to be in the militia).33 These peacetime-exemption laws 

do not exclude those under 21 from enrolling in the militia. In fact, they often still required 

18-year-olds to join the militia. They just exempted them from certain militia requirements

during peacetime, such as bringing a firearm. So these laws do not undermine, but instead 

reinforce, the conclusion that 18-year-olds were included in the public’s conception of the 

militia. 

And, as noted previously, because states were not subject to the Bill of Rights, the 

further one moves from ratification, the more state variation will occur and the less 

33 Ohio set the mandatory militia enlistment age at 18 in 1837. See An Act to 

Organize and Discipline the Militia § 1 (1837), in ACTS OF A GENERAL NATURE, PASSED 

AT THE FIRST SESSION OF THE THIRTY-FIFTH GENERAL ASSEMBLY OF THE STATE OF OHIO

18, 18 (1837). In 1843, Ohio exempted those under 21 from duty during peacetime but 

still required them to be enrolled, like most other peacetime exemption laws. An Act to 

Amend the Act Entitled “An Act to Regulate the Militia” § 6 (1843), in ACTS OF A 

GENERAL NATURE, PASSED BY THE FORTY FIRST GENERAL ASSEMBLY OF THE STATE OF 

OHIO 99, 100 (1843). The next year, Ohio exempted the entire public from militia duties 

during peacetime—reflecting the decline in the importance of militias—and set the age for 

mandatory enlistment at 21. An Act to Regulate the Militia §§ 1–2 (1844), in ACTS OF A 

GENERAL NATURE, PASSED BY THE FORTY SECOND GENERAL ASSEMBLY OF THE STATE 

OF OHIO 53, 53 (1844). But the law also made clear that 18-year-olds could volunteer for 

the militia. Id. § 14, in ACTS OF A GENERAL NATURE PASSED BY THE FORTY SECOND 

GENERAL ASSEMBLY OF THE STATE OF OHIO 55. 
43

probative the laws will be in interpreting the Second Amendment.34 While we should not 

completely discount evidence closer to the Civil War, these later militia laws are less

instructive. In the decades after the Founding, the militia had become much less important 

while individual self-defense became more meaningful.

35 As a result, fewer people needed 

to be in the militia, and militias were less tied to gun ownership. Robert Leider, Our NonOriginalist Right to Bear Arms, 89 Ind. L.J. 1587, 1634 (2014). So militia laws enacted 

decades after ratification, especially when the militias were in decline, provide limited 

evidence of the original public meaning of the Second Amendment. See Nat’l Rifle Ass’n, 

714 F.3d at 339, 342 (Jones, J., dissenting).

The government also relies on a 1778 New Jersey law that set the militia age at 21

for a single call to arms. That New Jersey law called for 1,000 men ages 21 and older to 

enlist to defend the frontiers. See generally An Act to Embody, for a Limited Time, One 

Thousand of the Militia of this State, for the Defence of the Frontiers Thereof §§ 1, 3 

(1778), in Acts of the General Assembly of the State of New Jersey. At a Session Begun 

at Trenton on the 27th Day of October, 1778 and Continued by Adjournments 58, 58–59

34 The first state after ratification to adopt a law that set the minimum age for militia 

service at 21 was Kansas in 1859. See KAN. CONST. of 1859, art. 8, § 1. But there may be 

other laws that the parties, cases, articles, and our own efforts have yet to uncover. 

35 McDonald, 561 U.S. at 770–77; 3 JOSEPH STORY, COMMENTARIES ON THE 

CONSTITUTION OF THE UNITED STATES 746–47 (1833) (lamenting the declining 

importance of militias); see also JAMES B. WHISKER, THE RISE AND DECLINE OF THE 

AMERICAN MILITIA SYSTEM 330–31 (Susquehanna Univ. Press 1999); Gerald Orlo Van 

Slyke, Jr., The Citizen Militias of the United States: Their Antecedents, Development, and 

Present Condition 221–58 (Apr. 2016) (Ph.D. dissertation, Montana State University), 

(saved as ECF opinion attachment). 
44

(1778). The government’s reliance on this law reveals the sinking sand on which it stands. 

This law was a one-time call to arms for 1,000 people for a single purpose. Id. It permits 

officers to enlist those ages 16 to 21 but only calls upon those 21 and older for this particular 

service. Id. § 3. Moreover, New Jersey still generally required 16-year-olds to enroll in 

the militia, both before and after this temporary call to arms.

36 The mandatory enrollment 

age increased to 18 around ratification37 and remained there through 1829 when the state

36 An Act for the Better Regulating the Militia § 1 (1777), in ACTS OF THE GENERAL 

ASSEMBLY OF THE STATE OF NEW JERSEY, AT A SESSION BEGUN AT PRINCETON ON THE 

27TH DAY OF AUGUST 1776, AND CONTINUED BY ADJOURNMENTS 26, 26 (1777) (setting 

the age at 16 a year prior); An Act for the Regulating, Training, and Arraying of the Militia, 

and for Providing More Effectually for the Defence and Security of the State § 10 (1781),

in ACTS OF THE FIFTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A SESSION 

BEGUN AT TRENTON ON THE 24TH DAY OF OCTOBER, 1780, AND CONTINUED BY 

ADJOURNMENTS 39, 42 (1781) (affirming the age group to be enrolled in the state militia 

as 16 to 50).

37 An Act for Organizing and Training the Militia of this State § 4 (1792), in ACTS 

OF THE SEVENTEENTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY. AT A SESSION 

BEGUN AT TRENTON THE 23D DAY OF OCTOBER 1792, AND CONTINUED BY 

ADJOURNMENTS 824, 825 (1792) (age 18); A Supplement to the Act, Intitled, ‘An Act for 

Organizing and Training the Militia of this State’ § 6 (1793), in ACTS OF THE 

SEVENTEENTH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY. AT A SESSION BEGUN 

AT TRENTON THE 23D DAY OF OCTOBER 1792, AND CONTINUED BY ADJOURNMENTS 850, 

853 (1793) (same); An Act for the Regulation of the Militia of New-Jersey § 1 (1799), in

ACTS OF THE TWENTY-THIRD GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A 

SESSION BEGUN AT TRENTON, ON THE TWENTY-THIRD DAY OF OCTOBER, ONE THOUSAND 

SEVEN HUNDRED AND NINETY-EIGHT, AND CONTINUED BY ADJOURNMENTS 609, 609 

(1799) (same); An Act for Establishing and Conducting the Military Force of New-Jersey, 

§ 1, ACTS OF THE THIRTIETH GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AT A 

SESSION BEGUN AT TRENTON, ON THE FIFTH DAY OF FEBRUARY, ONE THOUSAND EIGHT 

HUNDRED AND SIX, AND CONTINUED BY ADJOURNMENTS 536, 536 (1806) (same).
45

enacted a peacetime-exemption law for those under 21.

38 Taken together, none of these 

New Jersey laws reflect that 18-year-olds were excluded from militia service. 

The government also points to a series of Virginia laws that set varying ages for 

militia service. But at the time of ratification, Virginia required militia service for all men 

ages 18 and older. An Act for Regulating the Militia of this Commonwealth § 12 (1792), 

in A Collection of All Such Acts of the General Assembly of Virginia 282, 284 (1792). In 

1705, Virginia set the age of service at 16. An Act for Settling the Militia (1705), in 3 

William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of 

Virginia, from the First Session of the Legislature, in the Year 1619, at 335, 335 (1823). 

In 1723, Virginia raised the mandatory age for enlistment to 21 but made it clear that 16-

year-olds could be admitted as substitutes. An Act for the Settling and Better Regulation 

of the Militia § 2, in 4 William Waller Hening, The Statutes at Large; Being a Collection 

of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at

118, 118 (1820). Virginia kept the minimum age for enlistment at 21 in 1738 and used that 

age of service for a special call to arms for the French and Indian War in 1754.39 The next 

38 J.A. 288; An Act to Exempt Minors from Militia Duty in Time of Peace § 1 

(1829), in ACTS OF THE FIFTY-FOURTH GENERAL ASSEMBLY OF THE STATE OF NEW 

JERSEY, AT A SESSION BEGUN AT TRENTON, ON THE TWENTY-SEVENTH DAY OF OCTOBER,

ONE THOUSAND EIGHT HUNDRED AND TWENTY-NINE 3, 3 (1829).

39 An Act, for the Better Regulation of the Militia § 2 (1738), in 5 WILLIAM WALLER 

HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA,

FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 16, 16 (1819); An 

Act for Raising Levies and Recruits to Serve in the Present Expedition against the French, 

on the Ohio §§ 1–3, in 6 WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A 
46

year, however, Virginia adopted 18 as the age of service, then reduced the age to 16 during 

the Revolutionary War, and returned to age 18 near the time of ratification.40 

Pennsylvania follows a similar story. In 1755, at the height of the French and Indian 

War, Benjamin Franklin drafted and got passed a militia law that required the enrollment 

COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE 

LEGISLATURE, IN THE YEAR 1619, at 438, 438–39 (1819).

40 An Act for the Better Regulating and Training the Militia § 3 (1755), in 6 

WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE 

LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at

530, 531 (1819) (age 18); An Ordinance for Raising and Embodying a Sufficient Force, 

for the Defence and Protection of this Colony (1775), in 9 WILLIAM WALLER HENING, THE 

STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE 

FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9, 16–17 (1821) (age 16); An 

Act for Amending the Several Laws for Regulating and Disciplining the Militia, and 

Guarding Against Invasions and Insurrections § 2 (1784), in 11 WILLIAM WALLER 

HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA,

FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 476, 476–77 (1823) 

(age 18); An Act for Regulating the Militia of this Commonwealth § 12 (1792), in A

COLLECTION OF ALL SUCH ACTS OF THE GENERAL ASSEMBLY OF VIRGINIA 282, 284 

(1792) (age 18).
47

of men over 21.

41 But in 1777 Pennsylvania lowered the age to 18 where it remained 

through ratification.42 

So 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. See Moore, 702 F.3d at 935 (citing McDonald, 561 U.S. at 765 & n.14); 

Chester, 628 F.3d at 680 (citing Heller, 554 U.S. at 625). 

Next, the government points to three state laws requiring parental consent to enlist 

in the militia. J.A. 291. But two of those states were not states at the Founding and their 

41 Even so, those under 21 could enlist with parental consent. An Act for the Better 

Ordering and Regulating Such as Are Willing and Desirous to Be United for Military 

Purposes Within this Province § 2 (1775), in 5 THE STATUTES AT LARGE OF 

PENNSYLVANIA FROM 1682 TO 1801, at 197, 200 (1898). And Pennsylvania quickly moved 

to ask 16-year-olds to voluntarily enroll and imposed a tax on those who did not. See Kopel 

& Greenlee, supra note 10, at 561 (first citing Resolves of Assembly, Agreed to November 

8th, 1775 para. 3, in 8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, 

at 492, 492 (1902); and then citing Resolutions Directing the Mode of Levying Taxes on 

Non-Associators para. 1–2, in 8 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682

TO 1801, at 538, 539 (1902)).

42 An Act to Regulate the Militia of the Commonwealth of Pennsylvania § 4 (1777), 

in 9 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 75, 77 (1909) 

(age 18); An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania

§ 3 (1780), in 10 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 144, 

146 (1904) (age 18); An Act for the Regulation of the Militia of the Commonwealth of 

Pennsylvania § 2 (1793), in 14 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1682

TO 1801, at 454, 455 (1909) (age 18); An Act for the Regulation of the Militia of the 

Commonwealth of Pennsylvania § 1 (1799), in 16 THE STATUTES AT LARGE OF 

PENNSYLVANIA FROM 1682 TO 1801, at 276, 276 (1911) (age 18); An Act for the 

Regulation of the Militia of the Commonwealth of Pennsylvania § 1 (1802), in 17 THE 

STATUTES AT LARGE OF PENNSYLVANIA FROM 1802 TO 1805, at 174, 174 (1915) (age 18); 

An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania § 2 (1807),

in 18 THE STATUTES AT LARGE OF PENNSYLVANIA FROM 1806 TO 1809, at 572, 573 (1915) 

(age 18).
48

laws were not passed until 1835 and 1863 respectively.43 The earliest of these laws was 

passed by New York in 1818, but it is a stretch to claim that it required parental consent 

for anyone under 21, as the law required 18-year-olds to enroll in the militia and only 

required parental consent to join particular companies such as cavalry and artillery.

44 

Before ratification New York set the enlistment age at 16 and right after ratification it was 

raised to 18 in line with the federal Militia Act.45 And even true parental-consent laws 

exempted 18-year-olds from mandatory service in the militia but still permitted them to 

join with their parents’ permission.

The government also points to a handful of laws requiring parents to furnish arms 

and pay fees for their enlisted children. J.A. 298–301. But those laws do little to suggest 

that those under 21 were not required to keep and bear arms. Most of those laws require 

18-year-olds to enlist but do not set an age for parental liability, just requiring guardians 

to be liable for the equipment and food of those “who shall be under their care.” Id. And 

the existence of these laws is unsurprising given that some states required those older than 

43 An Act to Organise, Govern, and Discipline the Militia art. IV, § 22 (1835), in 2 

LAWS OF A PUBLIC AND GENERAL NATURE OF THE STATE OF MISSOURI, PASSED BETWEEN 

THE YEARS 1824 & 1836, at 512, 521 (1842); An Act for the Reorganization of the Military 

Forces of the State of Michigan § 6 (1863), in 1 JAMES S. DEWEY, THE COMPILED LAWS 

OF THE STATE OF MICHIGAN 317, 320 (1872).

44 An Act to Organize the Militia § 33 (1818), in LAWS OF THE STATE OF NEW 

YORK, PASSED AT THE FORTY-FIRST SESSION OF THE LEGISLATURE 211, 225 (1818).

45 An Act to Regulate the Militia (1786), in 1 THOMAS GREENLEAF, LAWS OF THE 

STATE OF NEW YORK 227, 227 (1792) (age 16); An Act to Organize the Militia of this State

(1793), in 3 LAWS OF THE STATE OF NEW YORK 440, 440 (1887) (age 18).
49

16 to enroll in the militia.46 Regardless, “the point remains that those minors were in the 

militia and, as such, they were required to own their own weapons,” even if their parents 

had to buy those weapons or consent to them joining. Nat’l Rifle Ass’n, 714 F.3d at 342 

(Jones, J., dissenting).

So contrary to the government’s claims, state and federal militia laws show that 18-

year-olds had a right to keep and bear arms. Near ratification, every state and the federal 

government required 18-year-old men to be in the militia and have their own weapons, 

meaning that those people were part of “the people” protected by the Second 

Amendment.

47 Nothing in the few and distant militia laws the government identifies 

undermines this conclusion. 

46 Appendix 1; Kopel & Greenlee, supra note 10, at 585–86. Compare, e.g., An 

Act, for Regulating and Governing the Militia of this State § 15 (1797), in 2 THE LAWS OF 

THE STATE OF VERMONT DIGESTED AND COMPILED 122, 131–32 (1808) (parents must 

provide weapons for “those of [the] militia who shall be under their care and command”), 

with An Act Regulating the Militia of the State of Vermont (1787), in STATUTES OF THE 

STATE OF VERMONT 94, 94 (1787) (16-year-olds must join the militia). The 1797 Vermont 

law requires 18-year-olds to enroll but does not set an age under which parents must 

provide arms for those “under their care and command.” An Act, for Regulating and 

Governing the Militia of this State § 15 (1797), in 2 THE LAWS OF THE STATE OF VERMONT 

DIGESTED AND COMPILED 122, 131–32 (1808). This is typical of these laws. 

47 A fairly recent law review article confirms our research on the militia laws during 

the eighteenth century. See generally Kopel & Greenlee, supra note 10. With the 

exceptions of Virginia and Pennsylvania, where the age cutoff fluctuated as discussed 

earlier, every colony and state during the eighteenth century required 18-year-olds to serve 

in the militia and bring their own arms. Id. at 536–89. This was uniform in the decades 

surrounding the ratification of the Second Amendment. Id. And most states required 16-

year-olds to serve prior to the federal Militia Act but raised their enlistment age to 18 in 

line with the federal act for the rest of the century. Id. So at the very least 18-year-olds 

were unambiguously required to be in the militia and thus are included in the Second 

Amendment. Id. at 499–504. 
50

3. The government’s arguments do not point to a different 

conclusion

Founding-era militia laws provide strong evidence that 18-year-olds were covered 

by the Second Amendment. So to undermine this evidence, the government turns to other 

historical arguments. First, the government contends that the Second Amendment is tied 

to virtue and minors were not considered virtuous. The government thus posits that

because the age of majority at the Founding was 21, those under 21 were not covered by 

the Second Amendment. Second, it points to state laws in the late nineteenth and early 

twentieth centuries that restricted the sale of handguns based on age. We find neither 

argument persuasive. 

a. The age of full majority

Both parties rely on the age of majority to make their case, but they look to the age

of majority from different time periods. Neither is relevant. 

Plaintiffs argue that because the age of majority is now 18, 18-year-olds have 

Second Amendment rights. In response to a similar argument, the Fifth Circuit correctly 

explained that “‘majority or minority is a status’” that “lack[s] content without reference 

to the right at issue.” Nat’l Rifle Ass’n, 700 F.3d at 204 n.17 (quoting Jeffrey F. Ghent, 

Annotation, Statutory Change of Age of Majority as Affecting Pre–Existing Status or 

Rights, 75 A.L.R.3d 228 § 3 (1977)). Yet inexplicably, the Fifth Circuit then concluded

that 18-year-olds do not have Second Amendment rights because the age of majority was 

21 at the Founding. Id. at 201–03. The government likewise relies heavily on the idea that 

the age of majority was 21 at the Founding. See 1 William Blackstone, Commentaries 463 
51

(St. G. Tucker ed., 1803); Black’s Law Dictionary 847 (9th ed. 2009) (suggesting that the 

age of majority was 21 at the Founding). 

But the age of majority—even at the Founding—lacks meaning without reference 

to a particular right. As Blackstone’s Commentaries makes clear, the relevant age of 

majority depended on the capacity or activity. 1 William Blackstone, Commentaries 463–

64; see also id. at 465 (noting the “different capacities which [individuals] assume at 

different ages”). For example, a man 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 463–64. And a 

woman could consent to marriage at age 12, choose a guardian at age 14, and serve as an 

executrix at age 17. Id. at 463. Both sexes had to wait until age 21 to dispose of their 

lands. Id. So while the full age of majority was 21, that only mattered for specific 

activities. Id. And even so, constitutional rights were not generally tied to an age of 

majority, as the First and Fourth Amendments applied to minors at the Founding as they 

do today. So the age of majority Blackstone identifies for different activities tells us little 

about the scope of the Second Amendment’s protections.

To square the circle, some have attempted to connect the age of majority to the 

Second Amendment by arguing that the right to keep and bear arms depends on “civic 

virtue,” and those under 21—the Founding-era age of majority—were not considered

virtuous. Nat’l Rifle Ass’n, 700 F.3d at 201. But even if a group could be categorically 

restricted from possessing Second Amendment rights because of the group’s perceived 

virtue or dangerousness, we find the fact that those 18 and older had to serve in the militia 
52

at the time of ratification means that they are not such a group. Even so, any determination 

of a group’s dangerousness fits more appropriately at step two of this analysis.

But this age-of-majority argument has been proffered at step one to contend that 

those historically considered without virtue are outside the scope of the Second 

Amendment’s protection. See, e.g., Nat’l Rifle Ass’n, 700 F.3d at 200–01; United States v. 

Rene E., 583 F.3d 8, 15–16 (1st Cir. 2009). There is an ongoing debate about the relevance 

of virtue,

48 but whether the Second Amendment hinges on notions of virtue is irrelevant 

for our purposes. As the Sixth Circuit said, “that the Founders understood the Amendment 

to protect the virtuous does not explain who was counted among that class.” Tyler, 837 

F.3d at 688–90 (rejecting the claim that the mentally ill were categorically unvirtuous). 

Even if virtue matters, there is no Founding-era evidence that 18- to 20-year-olds were 

considered unvirtuous, as only a few of the cited sources refer to minors and the ones that 

do fail to rely on primary sources.49 That is not historical evidence. 

48 See, e.g., United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010); United 

States v. Carpio-Leon, 701 F.3d 974, 979–81 (4th Cir. 2012); Don B. Kates, Jr., The Second 

Amendment: A Dialogue, 49 L. & CONTEMP. PROBS. 143, 146 (1986); Saul Cornell, “Don’t 

Know Much About History”: The Current Crisis in Second Amendment Scholarship, 29 N.

KY. L. REV. 657, 679 (2002). But see Folajtar v. Att’y Gen. of the U.S., 980 F.3d 897, 

912–20 (3d Cir. 2020) (Bibas, J., dissenting); Kanter, 919 F.3d at 462–64 (7th Cir. 2019) 

(Barrett, J., dissenting); Churchill, supra note 15, at 155–56, 165.

49 The sources relied on for the notion that 18-year-olds were not considered 

virtuous “are like the layers of a matryoshka doll, each nested layer successively larger 

with little at the core.” Folajtar, 980 F.3d at 915–18 (Bibas, J., dissenting); see Kates,

supra note 48, at 146 (suggesting that minors were not among the “virtuous” citizenry 

allowed to own guns, citing only his own article, Don B. Kates, Jr., Handgun Prohibition 

and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 266 (1983), 

which does not provide any historical evidence from the Founding to support that 
53

The cited evidence to support the contention that minors could be prevented from 

buying firearms comes from a passing reference in a footnote in Thomas Cooley’s treatise, 

which was published nearly a century after ratification. Thomas M. Cooley, Treatise on 

Constitutional Limitations 740 n.4 (5th ed. 1883) (“[t]hat the State may prohibit the sale of 

arms to minors” (citing State v. Callicutt, 69 Tenn. 714 (1878), which held a Tennessee 

state law, 1856 Tenn. Pub. Acts 92, 92, that made it illegal for someone to sell, loan, or 

give a minor a pistol except for hunting was valid)). Putting aside the limited weight that 

should be given to this passing statement in a footnote, Cooley’s lone source is a state case 

applying a state law from decades after ratification. Id. Neither the law nor the case carries

much value in determining original public meaning. Moreover, the case cited, State v. 

Callicutt, relies on Aymette v. Tennessee, 21 Tenn. (2 Hum.) 154, 158 (1840), for the 

proposition that the Second Amendment only protects the right “to keep and bear arms for 

their common defense” in a military context, not an individual right. Callicutt, 69 Tenn. 

proposition); Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and 

Criminological Considerations, 60 HASTINGS L.J. 1339, 1360 (2009) (cited by the 

government but only providing sources for felon restrictions, not restrictions on minors); 

Don B. Kates, Jr., Second Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN 

REVOLUTION 1640 (Leonard W. Levy et al. eds., 1986) (claiming that minors could be 

prevented from buying firearms but providing no sources); Cornell, supra note 48, at 679 

(discussing civic virtue but not discussing minors); Glenn Harlan Reynolds, A Critical 

Guide to the Second Amendment, 62 TENN. L. REV. 461, 480 (1995) (implying minors are 

not virtuous based on Kates’s scholarship); Yassky, supra note 11, at 588, 626 (cursorily 

discussing virtue and not in the context of minors). These sources merely cite each other 

without offering primary sources supporting the idea that minors were considered 

unvirtuous. See Folajtar, 980 F.3d at 915–18 (Bibas, J., dissenting); see also Eugene 

Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical 

Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1511–12 (2009) (arguing 

that a danger justification could apply to those under age 18 but the justification was not 

persuasive considering the other rights enjoyed by those 18 and older).
54

at 716 (also citing Page v. State, 50 Tenn. (3 Heisk.) 198 (1871)). Not only did Heller 

explicitly reject this limited military and collective view of the Second Amendment, but it

also rejected Aymette as offering an “odd reading of the right . . . [and] not the one we 

adopt.” 554 U.S. at 579–80, 613. So the only primary source the government can muster, 

that comes long after ratification, does nothing to support its case. 

And even so, in Cooley’s separate discussion of the Second Amendment as an 

individual right he states that “[t]he meaning of the provision 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.” Thomas M. Cooley, 

The General Principles of Constitutional Law in the United States of America 271 (1880). 

So if anything, Cooley’s perspective on the Second Amendment reinforces our conclusion 

that those who were in the militia at the time of ratification had Second Amendment rights.

The idea that 18- to 20-year-olds are not virtuous in the same manner as felons is a 

strange contention. Why would the federal government and every state require unvirtuous 

people to have guns and be in a militia? Especially if being unvirtuous means that you can, 

and probably should, be disarmed? It is also odd considering that this group has most other 

rights, while at least some of those rights are circumscribed for felons. As a result, the 

government’s arguments fail to persuade us that 18- to 20-year-olds were considered

unvirtuous and thus outside the Second Amendment’s protections.

b. Historical gun regulations

Failing to find purchase in Founding-era militia laws or the age of majority, the 

government turns to historical gun regulations. See Nat’l Rifle Ass’n, 700 F.3d at 200–01. 
55

While some gun regulations existed at the Founding, there were no regulations restricting

minors’ ability to possess or purchase weapons until two states adopted such laws in 1856. 

See id. at 202 n.14. The Fifth Circuit relied on the prevalence of gun-safety regulations 

around the Founding to conclude that “gun use and gun control have been inextricably 

intertwined” and that restrictions on particular groups were also allowed. Id. at 200–01. 

Ironically, the very laws the Fifth Circuit relied on to permit general gun regulation were 

rejected in Heller as justifications for broader regulations. Id. at 337–38 (Jones, J.,

dissenting) (rejecting the majority’s argument based on Heller). Compare id. at 200–01

(majority opinion), with Heller, 554 U.S. at 683–86 (Breyer, J., dissenting) (using similar 

laws as the panel majority in Nat’l Rifle Ass’n), and id. at 631–34 (majority opinion)

(rejecting those laws as not probative). Perhaps for that reason, the government does not 

force this argument but turns instead to laws that deal with age.

The government offers a long list of state laws that set various ages for purchasing 

or possessing guns. J.A. 51–71. At least at step one of our analysis, however, these laws

carry little weight. Instead, the list reveals that near the time of ratification there were no 

laws restricting the sale of firearms to 18-year-olds. The earliest laws cited were passed 

over 60 years after ratification, and most were enacted after the Civil War. 

According to the government, by the end of the nineteenth century, 18 states and 

D.C. in some way restricted gun ownership by those under age 21. Id. This was less than 

half of the 45 states admitted by 1899. Only 5 states and D.C. explicitly restricted gun
56

ownership for those under 21;

50 the rest, the government argues, restricted gun ownership

by “minors” and those under 21 were considered minors.51 But the nineteenth-century 

cases that are typically cited to support such restrictions either do not deal with this issue, 

50 These states did so expressly: Indiana, 1875 Ind. Acts 59, 59; Maryland, 1882 

Md. Laws 656, 656; West Virginia, 1882 W. Va. Acts 421, 421 (good cause and home 

exceptions); Louisiana, 1890 La. Acts 39, 39; Wyoming, 1890 Wyo. Sess. Laws 127, 140. 

J.A. 50–71. The District of Columbia did so expressly as well. 27 Stat. 116, 117 (1892); 

see also J.A. 53. Nevada only restricted concealed carry by those under 21, not purchase, 

possession, or open carry. See 1885 Nev. Stat. 51. As a result, we do not include Nevada 

in our numbers.

51 These state statutes do not define the term “minors” so the government infers from

other laws that the term includes all those under age 21: Alabama, 1856 Ala. Laws 17, 17

(males only); Tennessee, 1856 Tenn. Pub. Acts 92, 92 (hunting exception); Kentucky, 1860

vol. 1 Ky. Acts 242, 245 (guardian can transfer to minors); Georgia, 1876 Ga. Laws 112, 

112 (exception for defense); Mississippi, 1878 Miss. Laws 175, 175 (cannot sell to minors); 

Missouri, 1883 Mo. Laws 76, 76 (parental-consent exception); Delaware, 16 Del. Laws 

716, 716 (1881) (prohibiting sales to minors); Illinois, 1881 Ill. Laws 73, 73 (guardian can 

transfer to minors); Kansas, 1883 Kan. Sess. Laws 159, 159; Wisconsin, 1883 vol. I Wis. 

Sess. Laws 290, 290; Iowa, 1884 Iowa Acts 86, 86; North Carolina, 1893 N.C. Sess. Pub. 

Laws 468, 468; and Texas, 1897 Reg. Sess. Tex. Gen. Laws 221, 221 (parental-consent

exception).

The government relies on caselaw to show that “minors,” as used in these statutes, 

meant those under 21. But many cases it cites were decided much earlier or later than the 

gun restrictions, addressed matters unrelated to gun ownership, or both. See, e.g., Walker 

v. Walker, 17 Ala. 396, 398–99 (1850) (assuming that where a will used the term “become 

of age,” it meant when the beneficiaries reached 21); Doe v. Archdiocese of Milwaukee, 

700 N.W.2d 180, 188 (Wis. 2005) (explaining in 2005, 122 years after the relevant 

Wisconsin law was passed, that before 1971 the age of majority was 21 for tolling a statute 

of limitations). As the government points out, Illinois, Missouri, and Oklahoma set the age 

of majority at 21 for men and 18 for women. See Anderson v. Williams, 104 N.E. 659, 661 

(Ill. 1914); Reisse v. Clarenbach, 61 Mo. 310, 313 (1875); Bassett v. Bassett, 521 P.2d 434, 

435 n.2 (Okla. Civ. App. 1974). 
57

apply only to those under 18, do not address constitutional concerns, or rely on logic 

rejected by Heller.

52

By the early 1920s, another state explicitly restricted gun ownership by those under 

age 21 while two others did so by implication, bringing the grand total to 21 states and 

D.C.

53 So even if we consider laws from more than a century after the Founding era, a 

majority of states, 27, seem not to have restricted 18-year-olds from purchasing or 

52 David B. Kopel & Joseph G.S. Greenlee, History and Tradition in Modern Circuit 

Cases on the Second Amendment Rights of Young People, 43 S. ILL. U. L.J. 119, 121–31

(2018) (reviewing cases cited by Rene E., 583 F.3d at 14–15, and Nat’l Rifle Ass’n, 700 

F.3d at 202). For example, in McMillen v. Steele, 119 A. 721, 722 (Pa. 1923), the 

Pennsylvania Supreme Court made clear that age 16 was being used as a substitute “for the 

proof necessary to show lack of capacity,” as “[c]hildren under that age have been 

legislatively declared utterly unfit to handle firearms.” Virginia’s Supreme Court instead

drew the line at 18, saying: “We know, as a matter of fact, that at the age of eighteen, a 

man is capable intellectually and physically of bearing arms,” recognizing that such a line 

had been drawn by all “States of the Union, perhaps without exception.” United States v. 

Blakeney, 44 Va. (3 Gratt.) 405, 418 (1847). Tankersly v. Commonwealth, 9 S.W. 702, 

703 (Ky. 1888), was brief and decided on jurisdictional, rather than Second Amendment, 

grounds. State v. Quail, 92 A. 859, 859 (Del. 1914), addressed only whether a concealed 

unloaded revolver could still be considered a concealed “deadly weapon” and did not 

consider the Second Amendment validity of the law. In Parman v. Lemmon, 244 P. 227, 

230 (Kan. 1925), the court first held that shotguns were dangerous weapons that could not 

be sold to minors. A forceful dissent noted the historical importance of armed minors to 

the republic. Id. at 231–32 (Dawson, J., dissenting). On rehearing, the court reversed, 

saying “the Legislature did not intend to make law violators of 60 per cent. of the militia 

of the state, it being estimated that 60 per cent. of the personnel of that body are minors” 

and adopted the dissenters’ views from the original case. Id. at 233.

53 New Hampshire’s law (1923) was explicit while Oklahoma (1890, admitted as a 

State in 1907) and South Carolina’s (1923) laws functioned by implication. 
58

possessing handguns; they instead restricted younger people.54 In fact, the cited 1868 

Oregon law affirmatively protects the gun rights of those older than 16.

55 

54 The government admits that some of these laws set the minimum age between 12 

and 20. In the late nineteenth and early twentieth centuries, many states set the age limit 

at or below 18: Oregon (1868) (age 16), Ohio (1880) (age 14), Florida (1881) (age 16), 

Pennsylvania (1881) (age 16), New Jersey (1882) (age 15), Michigan (1883) (age 13), 

Rhode Island (1883) (age 15), New York (1883) (age 18), Massachusetts (1884) (age 15), 

Minnesota (1889) (age 14), Virginia (1889) (age 16), Washington (enacted 1883, admitted 

as a State in 1889) (age 16), Vermont (1896) (age 12), South Dakota (1903) (age 15), Utah 

(1905) (age 14), Montana (1907) (age 14), Idaho (1909) (age 16), Arizona (enacted 1883, 

admitted as a State in 1912) (age 14), California (1923) (age 18), and Connecticut (1923) 

(age 18). Later, age-related restrictions were also enacted by New Mexico (1971) 

(unlawful to hunt or shoot a firearm unless completed hunter-safety course, 18 or older, or 

supervised by adult), Arkansas (1975) (prohibiting sale of firearm to minor without consent 

of parent), Nebraska (1977) (unlawful for those under 18 to possess pistol), Alaska (1978) 

(barring possession of a firearm by unemancipated minors under 16 without consent of a 

parent), North Dakota (1985) (barring person under 18 from possessing a firearm without

supervision from an adult), Hawaii (1988) (limiting licensing for unconcealed carry to 

those 21 or older), and Colorado (1993) (barring handgun possession under 18). J.A. 51–

71. While these laws may provide evidence that some age restrictions are acceptable, they 

do not suggest that 18-year-olds are not protected by the Second Amendment. Moreover, 

their passage so far removed from ratification makes their evidentiary value minimal. That 

many of these laws came so late also suggests—at least for states or territories that existed 

earlier—that these states had no age restrictions before these laws.

55 1868 Or. Laws 18, 18–19. One reason the government may have included this 

law is because it implies that age restrictions are generally allowed. But it reads more like 

a gap-filling or enforcement law rather than a law implicitly condoning age restrictions. 

The law states, “[w]hereas, [t]he constitution of the United States” and “the constitution of 

the State of Oregon” protect the right to bear arms, the Oregon legislature “therefore” 

protects the rights of those over 16. That is, the “whereas” and “therefore” structure reads: 

“Reflecting” the protections of the U.S. and Oregon Constitutions, the Oregon legislature 

protects those over age 16, suggesting that the U.S. and Oregon Constitutions protect those 

over 16. This law makes clear that this age group is protected in line with the constitutional 

right, which may have been uncertain in the absence of this law. It also prohibits state 

officials from taking the firearms of those over age 16, providing practical enforcement of 

their Second Amendment rights. None of this implies that age restrictions are acceptable. 

Quite the opposite.
59

As explained earlier, we focus the historical inquiry in step one on the time of

ratification in 1791. Chester, 628 F.3d at 680 (citing Heller, 554 U.S. at 625); Moore, 702 

F.3d at 935 (citing McDonald, 561 U.S. at 765 & n.14). At the time of ratification, there 

were no laws restricting minors’ possession or purchase of firearms. Most laws affecting 

minors post-date the Civil War, and the only two states to pass such laws before the Civil 

War did so immediately before the war (over 60 years after ratification). See J.A. 51–71; 

1856 Ala. Acts 17, 17; 1856 Tenn. Pub. Acts 92, 92. These laws from later time periods

provide little insight into the Amendment’s original public meaning. Heller, 554 U.S. at 

614; Nat’l Rifle Ass’n, 714 F.3d at 337, 339 (Jones, J., dissenting) (discounting late 

nineteenth- and early twentieth-century sources). And these laws were passed by states 

that were not bound by the Second Amendment. See Barron, 32 U.S. (7 Pet.) at 247–48; 

New State Ice Co., 285 U.S. at 311; Lee, supra, at 22; Nelson Lund, The Second 

Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354, 1359, 

1368–69 (2009). 

It would also be strange to rely on two southern laws restricting gun rights that were 

enacted before the Civil War given Congress’s grave concerns about southern states 

disarming freed Blacks during this period. Amar, supra, at 176; McDonald, 561 U.S. at 

770–78. State laws passed decades after the ratification restricting gun ownership—at a 

time when state laws were used to disarm disfavored groups—is weak evidence of the 

original scope of the Second Amendment. 
60

* * *

A review of the Constitution’s text, structure, and history reveals that 18-year-olds

are covered by the Second Amendment. See Nat’l Rifle Ass’n, 714 F.3d at 337 (Jones, J.,

dissenting). Like most other constitutional rights, the Second Amendment has no explicit 

age limit, and the most analogous constitutional rights apply equally to everyone. And 

when a constitutional right applies differently to minors, the age cutoff has consistently 

been set at 18, not 21. 

Founding-era history confirms that the public understood the Second Amendment 

to cover 18-year-olds. At the time of ratification, every state and the federal government 

required 18-year-old men to enroll in the militia. Those in the militia, as Heller reminds 

us, were a subset of the political community known as “the people” that enjoyed Second 

Amendment rights. 554 U.S. at 580. While most of the militia laws the government

identifies still allowed 18-year-olds to join the militia, those that required enlistees to be 

21 are few in number and distant in time from ratification. So the historical basis for those 

18 and older having Second Amendment rights rests on firm ground. 

Not only has the government failed to carry its burden to show that the regulated 

conduct was outside the Second Amendment’s scope, see Chester, 628 F.3d at 680–81; 

Ezell, 651 F.3d at 702–03; Tyler, 837 F.3d at 688, but the Constitution’s text, structure, and 

history affirmatively prove that 18-year-olds are covered by the Second Amendment. 

C. Step two: the laws do not pass intermediate scrutiny

Having found that 18-year-olds are protected by the Second Amendment, our 

precedent requires that we apply “an appropriate form of means-end scrutiny.” Chester, 
61

628 F.3d at 680. The Second Amendment’s “core protection” is “the right of law-abiding, 

responsible citizens to use arms in defense of hearth and home.” Kolbe, 849 F.3d at 131 

(quoting Heller, 554 U.S. at 634–35). When that right is “severely burden[ed],” we apply 

the “‘demanding’” strict scrutiny test. Id. at 133, 138 (quoting City of Boerne v. Flores, 

521 U.S. 507, 534 (1997)). But if the right is burdened only on the margins, intermediate 

scrutiny applies. Masciandaro, 638 F.3d at 470–71. Because we find that the laws do not 

even pass intermediate scrutiny, we need not decide how close to the core of the Second 

Amendment these laws strike.

Intermediate scrutiny requires the government to show “a reasonable fit between the 

challenged regulation and a substantial government objective.” Chester, 628 F.3d at 683

(internal quotations marks omitted).

56 Various evidence can be mustered to meet this 

standard but “reference to legislative findings, academic studies, or other empirical data is 

necessary.” Tyler, 837 F.3d at 694; see also Ezell, 651 F.3d at 709 (lack of empirics 

doomed the range ban). And while “case law, and even common sense” may be relied on, 

the government may not “rely upon mere ‘anecdote and supposition.’” Tyler, 837 F.3d at 

694 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 822 (2000)). The 

government must therefore offer more than speculation to connect a ban on 18- to 20-year56 Exactly what intermediate scrutiny requires in a given situation remains unclear. 

Compare Chester, 628 F.3d at 683 (“reasonable fit”), with Miss. Univ. for Women v. 

Hogan, 458 U.S. 718, 724 (1982) (“substantially related”). Given the lack of descriptive 

clarity, its application varies widely. See Duncan v. Becerra, 970 F.3d 1133, 1165–67 (9th 

Cir. 2020) (noting varying standards and degrees of deference). In response, some have 

argued that courts’ Second Amendment scrutiny should focus instead on the text, structure, 

history, and traditions of the Constitution. See Heller II, 670 F.3d at 1271–75 (Kavanaugh, 

J., dissenting).
62

olds purchasing handguns from licensed dealers to a substantial interest. See 18 U.S.C. 

§ 922(b)(1).

To begin, the government’s interests in preventing crime, enhancing public safety, 

and reducing gun violence are “not only substantial, but compelling.” Kolbe, 849 F.3d at

139; see Schall v. Martin, 467 U.S. 253, 264 (1984) (“The ‘legitimate and compelling state 

interest’ in protecting the community from crime cannot be doubted.”); Schenck v. Pro–

Choice Network of W. N.Y., 519 U.S. 357, 376 (1997) (referring to the “significant 

governmental interest in public safety”); see also Wrenn v. Dist. of Columbia, 864 F.3d 

650, 655 (D.C. Cir. 2017) (“[G]un laws almost always aim at the most compelling goal—

saving lives—while evidence of their effects is almost always deeply contested.”). Thus, 

we look to whether the regulations are a reasonable fit to that interest. 

At the summary judgment stage, the government only proffered evidence from the 

Congressional Record to support finding a reasonable fit between its compelling interests

and the challenged laws. Before the district court, amici offered more contemporary 

evidence to address the intermediate-scrutiny analysis. The government, however, neither 

adopted nor relied on that evidence. So it is unclear whether we may rely on amici’s 

evidence on appeal.

57 But even if we consider amici’s evidence, it does not change our 

57 In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720–21 (2014), the 

Supreme Court refused to consider statistics raised by amici because it “do[es] not 

generally entertain arguments that were not raised below and are not advanced in th[at] 

Court by any party.” The Court justified this conclusion because the government may not 

have agreed with amici’s “intensely empirical argument” and plaintiffs would not have a 

fair chance to respond to it. Id. at 721. 
63

analysis, for amici merely offer contemporary evidence to reinforce the congressional 

record, and that evidence does not alter or remedy its flaws. 

The basic logic of the argument is: (1) the brains of those under age 25 are not fully 

developed so those individuals are prone to reckless and emotional behavior;58 (2) because 

of this underdevelopment, youth, especially those ages 18 to 20, commit a disproportionate 

But unlike in Hobby Lobby, the amici’s arguments here were raised and adopted by 

the district court, and some of their evidence is in the record. J.A. 341–401; Hirschfeld, 

417 F. Supp. 3d at 758–59 (depending on the Congressional Record and Fifth Circuit’s 

reasoning but noting that amici’s evidence supported the conclusion). As in Hobby Lobby, 

however, amici offer an “intensely empirical argument,” and it is not clear that the 

government shares their views. 

58 The Congressional Record concludes that “[t]he greatest growth of crime today 

is in the area of young people, juveniles and young adults. The easy availability of weapons 

makes their tendency toward wild, and sometimes irrational behavior that much more 

violent, that much more deadly.” Federal Firearms Act: Hearings Before the Subcomm. 

to Investigate Juvenile Delinquency of the S. Comm. on the Judiciary, 90th Cong. 57 (1967) 

(testimony of Sheldon S. Cohen).

Amici support this contention with recent scientific studies showing that those under 

25 have underdeveloped brains that lead them to make emotional, reckless, and violent 

decisions. See, e.g., J.A. 342–54 (reprinting Mariam Arain et al., Maturation of the 

Adolescent Brain, 9 NEUROPSYCHIATRIC DISEASE & TREATMENT 449, 453, 456 (2013)); 

J.A. 356–65 (reprinting Leah H. Somerville et al., A Time of Change: Behavioral and 

Neural Correlates of Adolescent Sensitivity to Appetitive and Aversive Environmental 

Cues, 72 BRAIN & COGNITION 124, 125 (2010)); Michael Dreyfuss et al., Teens Impulsively 

React Rather Than Retreat from Threat, 36 DEVELOPMENTAL NEUROSCIENCE 220, 220 

(2014) (“Adolescents commit more crimes per capita than children or adults in the USA 

and in nearly all industrialized cultures. Their proclivity toward . . . risk taking has been 

suggested to underlie the inflection in criminal activity observed during this time.” (internal 

citations omitted)).
64

amount of violence;59 (3) handguns are the main tool used to commit that violence;

60 and 

(4) many of those handguns are bought from licensed dealers, so restricting that avenue of 

purchase for the relevant age group will reduce crime.61 Amici then try to tie the bow by 

59 Congress concluded that the growth in crime it investigated was largely 

attributable to youth. See Federal Firearms Act: Hearings Before the Subcomm. to 

Investigate Juvenile Delinquency of the S. Comm. on the Judiciary, 90th Cong. 57 (1967) 

(testimony of Sheldon S. Cohen). Congress’s investigation had shown that “juveniles 

account for some 49 percent of the arrests for serious crimes in the United States,” while 

“minors account for 64 percent of the total arrests in this category.” S. Rep. No. 90–1097, 

at 77. Specifically, “minors under the age of 21 years accounted for 35 percent of the 

arrests for the serious crimes of violence including murder, rape, robbery, and aggravated 

assault” and 21 percent of the arrests for murder. 114 Cong. Rec. 12,279, 12,309 (1968) 

(statement of Sen. Thomas J. Dodd). Law enforcement officers from New York City, Los 

Angeles, St. Louis, Chicago, Philadelphia, and Atlanta provided Congress with “statistics 

documenting the misuse of firearms by juveniles and minors,” which “take on added 

significance” given that minors were prohibited from acquiring concealable firearms in 

those cities. S. Rep. No. 89-1866, at 58–60.

Amici offered contemporary evidence to support this claim. See, e.g., J.A. 371 

(“Age-specific homicide offending rates rise sharply in the late teens and peak at age 20” 

with a peak homicide rate of around 16 per 100,000.). Though 18-, 19-, and 20-year-olds 

make up around 4% of the population, they account for about 15% of homicide arrests and 

a disproportionate amount of other violent crimes. Compare Federal Bureau of 

Investigation, 2018: Crime in the United States, Arrests by Age, 2018, (saved as ECF 

opinion attachment), with U.S. Census Bureau, Current Population Reports: Population 

Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050, at 

76, (saved as ECF opinion attachment).

60 Congress found that “the handgun is the type of firearm that is principally used in 

the commission of serious crime” and “the most troublesome and difficult factor in the 

unlawful use of firearms.” S. Rep. No. 89-1866, at 4–7. Congress also found “a causal 

relationship between the easy availability of firearms other than a rifle or shotgun and 

juvenile and youthful criminal behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat. 

at 225–26. 

61 Congress relied on IRS Commissioner Cohen’s testimony for the proposition that 

[t]he vast majority, in fact, almost all of these firearms, are put into the hands 

of juveniles by importers, manufacturers, and dealers who operate under 

licenses issued by the Federal Government . . . . The way to end this 
65

arguing that the passage of state gun laws has coincided with decreases in youth suicides

and unintentional deaths.

62

Whatever credence these contentions may have, we find that this chain of logic 

suffers from two debilitating flaws: (1) a showing of disproportionate bad conduct by a 

group cannot justify categorical restrictions on rights when the percentage of the group 

engaged in the unwanted conduct is minuscule, and (2) the evidence does not sufficiently 

link purchases from licensed dealers to crimes committed by youth. 

dangerous practice is to stop these Federal licensees from selling firearms to 

juveniles and this is one of the major things that [the proposed legislation] 

would do.

Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means, 89th Cong. 31 

(1965) (testimony of Sheldon S. Cohen); Pub. L. No. 90–351, tit. IV, § 901(a)(6), 82 Stat. 

at 226 (finding that concealable firearms had been “widely sold by federally licensed 

importers and dealers to emotionally immature, or thrill-bent juveniles and minors prone 

to criminal behavior”); id. § 901(a)(3), 82 Stat. at 225 (concluding that “only through 

adequate Federal control over interstate and foreign commerce in these weapons, and over 

all persons engaging in the business of importing, manufacturing, or dealing in them, can 

this grave problem be properly dealt with, and effective State and local regulation of this 

traffic be made possible”).

Amici offer other evidence to support this proposition. J.A. 387–92 (reprinting 

Katherine A. Vittes et al., Legal Status and Source of Offenders’ Firearms in States with 

the Least Stringent Criteria for Gun Ownership, 19 INJURY PREVENTION 26, 29–30 

(2013)).

62 J.A. 394–401 (reprinting Mark Gius, The Impact of Minimum Age and Child 

Access Prevention Laws on Firearm-Related Youth Suicides and Unintentional Deaths, 52 

THE SOC. SCI. J. 168, 173 (2015) (finding that youth suicides and accidental deaths 

decreased after Congress increased the minimum age for gun possession to 18)); Daniel 

W. Webster et al., Association Between Youth-Focused Firearm Laws and Youth Suicides, 

292 JAMA 594, 598 (2004) (state laws raising the minimum age for handgun purchases to 

21 were linked to a 9% decline in firearm suicide rates among 18- to 20-year-olds).
66

The Supreme Court case Craig v. Boren, 429 U.S. 190 (1976), guides much of our 

analysis. In the first case to announce the intermediate-scrutiny standard, the Court 

enjoined an Oklahoma law that prohibited licensed sellers from “sell[ing], barter[ing] or 

giv[ing]” low-alcohol beer (3.2% alcohol) to males under the age of 21 and females under 

the age of 18 because the state could not show that the sex classification was “substantially 

related” to road safety. Id. at 191 n.1, 204 (quoting Okla. Stat. tit. 37, § 241 (1953); Okla. 

Stat. tit. 35, § 245 (1972)).

63 The Court reviewed studies that showed that 18-, 19-, and 

20-year-old males were disproportionately arrested for, killed by, and injured by drunk 

driving. Id. at 200–01. The Court accepted that only 0.18% of females compared to 2% 

of males had been arrested for drunk driving (over 10 times as many). Id. at 201–02. But 

it rejected this evidence as sufficient to satisfy intermediate scrutiny: “[I]f maleness is to 

63 The dissent argues that the firearm regulations at issue in this case are narrow and 

uses this purported narrowness to help find that the laws pass intermediate scrutiny. 

Dissenting Op. at 99–101, 106–08. But the constitutional burden here is no narrower than 

the burden in Craig. In Craig, the law only prohibited licensed sellers from selling or 

giving low-alcohol beer to men ages 18 to 20 even though they could sell it to women of 

the same age. The constitutional burden here is quite similar. Both laws only restrict 

licensed sellers, allowing a minor to obtain the product by other means. Both laws are also 

temporary, only applying until one turns 21. And both laws only restrict access for one 

particular group of people to one particular product out of a larger category (handguns 

versus all guns compared to low-alcohol beer versus all alcohol). And despite the dissent’s 

claim that the availability of long guns lessens the burden, Heller explicitly rejected a 

similar argument. See 554 U.S. at 629. 

Moreover, the alternatives for acquiring a handgun are not as straightforward as the 

dissent envisions. Many young people lack friends or family who can afford to gift them 

a gun. And the secondary market is often not readily available. Further, the federally 

licensed dealers assure the safety, reliability, and legality of the weapons, unlike sellers on 

the secondary market. The ban here also applies to ammunition. So these burdens are 

hardly narrow or minor, especially when compared to the burdens placed on men by the 

disparate restrictions in Craig. 
67

serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly 

tenuous ‘fit.’” Id. The Court also found it significant that the state did not “measure the 

use and dangerousness of 3.2% beer as opposed to alcohol generally” to tie the challenged 

restriction to its interest in reducing drunk driving. Id. at 203. So in total, the state’s 

evidence did “not satisfy [the Court] that sex represents a legitimate, accurate proxy for the 

regulation of drinking and driving.” Id. at 204. 

The same flaws plague the evidence here.

64 First, while 18- to 20-year-olds commit 

a disproportionate amount of crime compared to other age groups, very few members of 

that group commit crime, making the correlation between age and gun crimes “an unduly 

tenuous ‘fit.’” Id. at 201–02. Second, like the connection between low-alcohol beer and 

drunk driving, the connection between handgun purchases from licensed dealers—as 

opposed to the many other ways to obtain handguns—and crimes committed by 18- to 20-

year-olds has not been made. So just as sex was a poor proxy for drunk driving in Craig, 

age is a poor proxy for gun violence in this case. 

64 The dissent claims that the Second Amendment is not treated as a second-class

right. But then the dissent says that legislatures should receive more deference when 

regulating guns. Dissenting Op. at 104–05, 138–39. But see Chester, 628 F.3d at 683 

(quoting language from Marzzarella, 614 F.3d at 98, suggesting that the various 

descriptions of intermediate scrutiny describe the same test, including that from the 

progenitor of intermediate scrutiny, Craig, 429 U.S. at 197). And even though Craig

created the intermediate-scrutiny test, the dissent says Craig is inapplicable, in part, 

because of the history of sex discrimination that makes the issue in Craig “repugnant to 

the nation’s commitment to equal protection in a way the challenged provisions in this case 

are not.” Dissenting Op. at 136; cf. Duncan, 970 F.3d at 1165–67 (noting that some courts 

seem to apply a lower form of intermediate scrutiny to the Second Amendment). We refuse 

to create this hierarchy of constitutional rights. 
68

1. Disproportionate rates cannot justify vastly over-inclusive group 

restrictions

The laws at issue here rest on the premise that young adults’ Second Amendment 

rights can be limited because they are responsible for a disproportionate amount of violent 

crime. But these laws over-inclusively restrict the rights of a large group of law-abiding 

citizens to target a tiny portion of them. In 1967, Congress was concerned about a 

disproportionate increase in crimes committed by youth. But the disproportionate rate of 

crime committed by this group tells us nothing about the percentage of the group that 

commits gun violence. Amici’s contemporary sources purport to show that 18-, 19-, and 

20-year-olds make up around 4% of the population but account for around 9.4% of violent 

crime arrests (about 37,000 of the 400,000 arrests each year).65 So while 18- to 20-yearolds may commit a disproportionate share of violent crime, an exceedingly small 

65 Federal Bureau of Investigation, 2018: Crime in the United States, Arrests by Age, 

2018, (saved as ECF opinion attachment); U.S. Census Bureau, Current Population 

Reports: Population Projections of the United States by Age, Sex, Race, and Hispanic 

Origin: 1995 to 2050, at 76, (saved as ECF opinion attachment). One can quibble with 

these statistics but only at the margins. For example, the FBI Report covers about 80% of 

the population, so the number of violent crimes committed is likely 25% higher. But the 

report also covers all violent crime, without accounting for the proportion of that crime 

committed using a handgun. And while we lack detailed data on all violent crime, the FBI 

reports that handguns are used to commit around 47% of murders (and about 71% of 

murders involve some kind of firearm). Federal Bureau of Investigation, 2017: Crime in 

the United States, Murder Victims by Weapon, 2013–2017, (saved as ECF opinion 

attachment); see also J.A. 389 (finding that 81% of offenses committed with a firearm 

involved a handgun). 
69

percentage, around 0.3% and definitely less than 1%, of the 13 million young adults in this 

group commit those crimes.66 This alone cannot justify restricting the entire group’s rights.

66 The amici’s sources suggest that 0.3% of young adults ages 18 to 20 commit 

violent crime each year, while more recent data suggests only a slightly greater percentage, 

about 0.37%. There are several things worth noting about these calculations. First, we 

consider only the crime rates of 18-, 19-, and 20-year-olds because the laws do not apply 

once one turns 21. Second, while exact calculations are difficult, the sources consistently 

show that less than 1% of this age group is arrested for committing a violent crime each 

year. So we can comfortably say that the true value lies somewhere below 1%. Third, we 

calculate these numbers using the formula: violent crime arrests for 18-, 19-, and 20-yearolds / (the number of individuals in that age group * the percentage of the population the 

FBI statistics cover). This gives us the percentage of 18-, 19-, and 20-year-olds arrested 

for violent crimes, not reflecting the many repeat offenders. See infra note 67. We thus 

have a theoretical “maximum” percentage if every individual arrested was unique.

To arrive at the 0.3% number, we used the data provided by amici. Amici provided 

a census report from 1996 that estimated that America’s population would be 317 million 

by 2018. U.S. Census Bureau, Current Population Reports: Population Projections of the 

United States by Age, Sex, Race, and Hispanic Origin: 1995 to 2050, at 32, (saved as ECF 

opinion attachment). We also took their estimate that 5% of the total population, or around 

16 million people, would be 18-, 19-, and 20-year-olds. J.A. 206. We then used the FBI’s 

2018 data comprising 78% of the population which showed that 18-, 19-, and 20-year-olds 

were arrested a bit fewer than 37,000 times for violent crimes in 2018. See Federal Bureau 

of Investigation, 2018: Crime in the United States, Arrests by Age, 2018, (saved as ECF 

opinion attachment). We plugged those numbers into the formula: 37,000 / (16,000,000 

x 0.78) = 0.3%. 

Because amici’s 1996 report underestimated America’s total population by about 

10 million, we used more recent data to calculate another estimate. Recent data estimates

the total population at 327 million and 18- to 20-year-olds at only 13 million in 2018. See

U.S. Census Bureau, Annual Estimates of the Resident Population by Single Year of Age 

and Sex for the United States: April 1, 2010 to July 1, 2019, (saved as ECF opinion 

attachment) (for consistency we used the 2018 numbers adding 18- (4,311,728), 19-

(4,253,664), and 20- (4,262,078) year-olds to get 12,827,470). The change in America’s 

population meant that the FBI data only accounted for 76% of the population, so we also 

adjusted that number. Plugging these numbers in, we get 37,000 / (13,000,000 x 0.76) = 

0.37%. 

Similarly, Judge Jones’s dissent in Nat’l Rifle Ass’n notes that “only 0.58% of 18-

to 20-year olds were arrested for violent crimes in 2010,” which stemmed from the Fifth 

Circuit’s Plaintiffs’ Petition for Rehearing En Banc. 714 F.3d at 347 (Jones, J., dissenting). 

The plaintiffs in that case had divided the FBI violent crime arrest statistics by age (59,921) 
70

What’s more, those calculations do not account for repeat offenders. In fact, a year 

after being released, over 40% of criminals are arrested again, and that number approaches

80% in the 6 years after release.

67 This means that an even smaller portion of the group is 

likely responsible for its disproportionate commission of violent crime.

Beyond its overbreadth, consider the implications of this argument. Men commit 

disproportionally more violent crime than women.68 Does that mean that the Second 

Amendment rights of men can be categorically restricted? See Volokh, supra note 49, at

1512–13. Treating the sexes differently would also receive intermediate scrutiny. So why 

not? A similar argument could be made for any number of groups, such as those living in 

a specific geographic location. See Heller, 554 U.S. at 681–82 (Breyer, J., dissenting) 

by the group’s total population (13,256,712) multiplied by the percentage of the total 

population that the FBI statistics covered (0.775). See Petition for Rehearing En Banc at 

12 n.1, Nat’l Rifle Ass’n, 714 F.3d 334 (No. 11-10959) (citing FBI and census data). 

Plaintiffs’ initial brief in Nat’l Rifle Ass’n uses the same method to find that 0.64% of 

young adults were arrested for committing a violent crime in 2009. See Opening Br. at 55 

n.17, Nat’l Rifle Ass’n, 700 F.3d 185 (No. 11-10959) (citing FBI and census data). These 

similar numbers confirm our general point that a tiny fraction of individuals in this age 

group commit violent crimes.

67 Bureau of Justice Statistics, 2018 Update on Prisoner Recidivism: A 9-Year 

Follow-up Period (2005–2014), at 4 (2018), (saved as ECF opinion attachment).

68 Roughly 80% of violent crimes are committed by males. See Federal Bureau of 

Investigation, 2018: Crime in the United States, Arrests by Sex, 2018, (saved as ECF 

opinion attachment). The more than 150 million men in America account for around 

310,000 violent-crime arrests. Id.; U.S. Census Bureau, Current Population Reports: 

Population Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995 

to 2050, at 76, (saved as ECF opinion attachment). And males in prison are reported to be 

2.5 to 3 times as likely as females to have possessed a firearm during the crime for which 

they are imprisoned. Bureau of Justice Statistics, Source and Use of Firearms Involved in 

Crimes: Survey of Prison Inmates, at 6 (2016), (saved as ECF opinion attachment).
71

(arguing that because crime is higher in urban centers more restrictions are allowed); id. at 

634 (majority opinion) (rejecting the dissent’s “judge-empowering ‘interest-balancing 

inquiry’” that permits greater regulation in urban areas). And amici’s own evidence and 

arguments would support restricting 21- to 25-year-olds’ rights, if not older adults, as much 

as it supports drawing the line at age 21. See supra notes 58, 59. Is that acceptable, and if 

so, where is the line? 

Craig explains why such laws would fail when it declared that “a correlation of 2% 

must be considered an unduly tenuous ‘fit.’” Craig, 429 U.S. at 201–02. The question is 

not about the disparity between groups or the total crime each group commits, but the 

percentage of the group that uses a gun in an impermissible manner. That statistic gives 

us some insight into the likelihood that any one person in the group will use a gun 

improperly and pose a danger to the public. Whatever the precise answer to that question,

here it falls well below the unduly tenuous threshold from Craig. 

The rights of more than 99% of a group cannot be restricted because a fraction of 

1% commit a disproportionate amount of violent crime. And it is already illegal for felons, 

fugitives, drug users, and aliens unlawfully in the United States, among others, to buy

firearms from licensed dealers. So the laws at issue by their nature prevent a more lawabiding, less dangerous subset of 18- to 20-year-olds from purchasing from a more 

regulated market. For reducing gun violence and crime, restricting a whole group that is 

almost entirely law-abiding is the definition of an unduly tenuous fit. And, because those 
72

who are young are also disproportionately the victims of crime,69 preventing them from 

purchasing handguns implicates the self-defense core of the Second Amendment the 

most.70 

The irony does not escape us that, under the government’s reasoning, the same 18-

to 20-year-old men and women we depend on to protect us in the armed forces and who 

have since our Founding been trusted with the most sophisticated weaponry should 

nonetheless be prevented from purchasing a handgun from a federally licensed dealer for 

their own protection at home. We refuse to accept this conclusion. These men and women

who, historically, have served either voluntarily or by conscription may not be read out of 

“the people” in the Second Amendment.

2. Handgun purchases from licensed dealers have not been 

connected to gun violence

The second major flaw with the laws at issue is that the licensed dealers whose sales 

to 18- to 20-year-olds are the subject of the challenged regulations are not connected to the

incidence of crime Congress sought to control. It is not enough to target guns generally 

and argue that less access to guns means less crime, as this would justify almost any 

restriction and eviscerate the Second Amendment. In Craig, the government could not

69 Bureau of Justice Statistics, Criminal Victimization, 2019, at 21, 45 (2019), (saved 

as ECF opinion attachment).

70 Cf. INSTITUTE OF MEDICINE AND NATIONAL RESEARCH COUNCIL OF THE 

NATIONAL ACADEMIES, PRIORITIES FOR RESEARCH TO REDUCE THE THREAT OF FIREARMRELATED VIOLENCE 15 (Alan I. Leshner et al. eds., 2013) (“Almost all national survey 

estimates indicate that defensive gun uses by victims are at least as common as offensive 

uses by criminals.”).
73

merely contend that access to alcohol generally led to drunk driving by men to justify a 

sex-based restriction on low-alcohol beer purchases. 429 U.S. at 203. Instead, the Court 

was concerned that no objective evidence purported to “measure the use and dangerousness 

of 3.2% beer as opposed to alcohol generally.” Id. The government needed to connect the 

low-alcohol beer to drunk driving to justify the disparate treatment. Id. at 202–03. So too 

here. Access to guns through licensed dealers—rather than access to handguns generally—

must be sufficiently connected to 18- to 20-year olds’ use of those firearms to commit 

violence. Yet neither the Congressional Record nor amici’s evidence can draw this 

connection, further undermining any claim to a reasonable fit. 

In its congressional findings, Congress concluded that concealable firearms had 

been “widely sold by federally licensed importers and dealers to emotionally immature, or 

thrill-bent juveniles and minors prone to criminal behavior,” which caused an increase in 

crime. Pub. L. No. 90–351, tit. IV, § 901(a)(6), 82 Stat. at 226; see also id. § 901(a)(3), 82 

Stat. at 225.

71 The basis for that conclusion appears to be the hearing testimony of IRS 

71 The dissent attempts to add several new congressional justifications for the 

challenged restrictions. First, the dissent pulls several quotes from the broad legislative 

history that reflect a general concern about suicides. Dissenting Op. at 111–13, 120, 136–

37. But those concerns were not tied to the provisions at issue here or to 18- to 20-yearolds generally. See, e.g., 109 Cong. Rec. 13,946, 13,948 (statement of Sen. Dodd) 

(referring to general suicide rates to support an early version of the bill that did not apply 

to those ages 18 to 20). Compare 114 Cong. Rec. 12,305 (statement of Sen. Dodd) 

(comparing national suicide rates to support the bill generally), with id. at 12,309 

(discussing only crime in relation to the challenged provision). Second and similarly, the 

dissent argues that “Congress was also concerned with simple gun accidents and the toll 

they took on young people.” Dissenting Op. at 112. Yet the only evidence the dissent can 

muster is a general statement about accidental tragedies in support of a mail-order ban and 

a single anecdote by an officer about a 20-year-old injuring himself by striking a handgun 
74

Commissioner Sheldon Cohen. During one hearing, Commissioner Cohen stated that 

“[t]he vast majority, in fact, almost all of these firearms, are put into the hands of juveniles 

by importers, manufacturers, and dealers who operate under licenses issued by the Federal 

Government.” Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means, 

89th Cong. 31 (1965) (testimony of Sheldon S. Cohen); see also Federal Firearms Act: 

Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the S. Comm. on the 

Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon S. Cohen). The government and 

amici rely on this statement to connect guns bought from licensed dealers to crimes 

committed by young adults. But there are several problems with this line of reasoning. 

First, Commissioner Cohen’s testimony notes that “almost all” firearms in the hands 

of minors—not that “almost all” guns used by minors to commit violent crime—came from 

a licensed dealer. Cohen only discusses access to firearms generally, which tells us little 

about the connection between the guns minors bought from licensed dealers and the guns 

minors use in crime. 

Second, his testimony could be read to make the point that “almost all” of the 

firearms have, at some point, come from federally licensed “importers, manufacturers, and 

dealers,” even if indirectly. That fact, while true, does little to show the regulations are a 

reasonable fit to the goal of reducing gun violence. Most guns, at some point, come from 

with a hatchet to discharge it. Dissenting Op. at 112 (citing S. Rep. No. 88-1340, at 17 

(1964)); see also S. Rep. No. 88-1340, at 1, 12, 27 (1964). Congress justified the 

challenged provisions based on violent crime committed by young adults and the desire to 

increase parental oversight. We may not now say that Congress had broader justifications 

by pointing to general statements about an omnibus crime bill.
75

a manufacturer whether they are later sold on the black market or by a licensed dealer. So 

read, this statement provides no support for a link between handgun purchases directly 

from licensed dealers and gun violence committed by young adults. So this reading of 

Cohen’s statement is far too broad to tell us anything meaningful. 

The only way Commissioner Cohen’s statements could support this causal link is if 

he meant that “almost all” firearms that (1) are used by minors to commit crimes (2) were 

directly sold to those minors by “importers, manufacturers, and dealers.” But nothing in 

the Congressional Record says that, and Commissioner Cohen’s statements fall 

considerably short of supporting such a contention. 

To begin, while the IRS regulated licensed dealers, this information seems beyond 

Commissioner Cohen’s experience. He was not in law enforcement, did not know from 

experience where guns used in crimes come from, and presented no studies or expertise 

from law enforcement to support his contention. Federal Firearms Act: Hearings Before 

the H. Comm. on Ways and Means, 89th Cong. 31 (1965) (testimony of Sheldon S. Cohen). 

Interestingly, Commissioner Cohen did cite studies and the experiences of law enforcement 

to support many of his other statements, but he was brief and conclusory in his contention 

that almost all guns in the hands of minors came from licensed dealers. Id. While the 

studies sought in Craig may not always be necessary, one person’s unsupported, inexpert, 

and conclusory testimony is not enough to establish a link between licensed dealers and 

gun crimes.

It is true that we sometimes give weight to Congress’s “predictive judgments” under 

Turner Broadcasting System Inc. v. FCC, 512 U.S. 622, 665–66 (1994). But this does not 
76

mean that we should blindly abdicate our obligation to review Congress’s actions under 

heightened scrutiny. Indeed, as we have made clear “[o]ur obligation is simply ‘to assure 

that, in formulating its judgments, [the legislature] has drawn reasonable inferences based 

on substantial evidence.’” Kolbe, 849 F.3d at 140 (emphasis added) (quoting Turner, 512 

U.S. at 666). As Turner explained, “deference afforded to legislative findings does ‘not 

foreclose our independent judgment of the facts bearing on an issue of constitutional law.’” 

512 U.S. at 666 (quoting Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989)); 

see also Moore, 702 F.3d at 942 (noting that the “legislative facts” used to determine the 

constitutionality of statutes do “not present factual questions for determination in a trial” 

but are instead questions of law that judges resolve outside the normal strictures of 

summary judgment or a motion to dismiss).

Congress’s conclusion depends on Commissioner Cohen’s testimony, which itself

is conclusory and rests on no evidence. But the government “must supply actual, reliable 

evidence,” such as empirical studies, not mere “speculation” even if facially reasonable. 

Ezell, 651 F.3d at 709; see also Tyler, 837 F.3d at 694. Yet all the government offers to 

connect licensed dealers to young-adult crime is a conclusory finding by Congress based 

on a conclusory statement from someone who is not an expert on this issue. That is not 

“substantial evidence,” and it is not due deference. Turner, 512 U.S. at 666. Congress 

may not pass intermediate scrutiny by relying on unsupported conclusory testimony to 

justify its desired outcome. As the statements are merely conclusory, they are owed no

special deference, lest we edge perilously close to rational-basis review, a standard Heller

prohibits.
77

Furthermore, one of the contemporary studies provided by amici affirmatively 

undermines the connection between handguns bought from licensed dealers and violent

crime.

72 That study reflects self-reporting from 253 inmates convicted of offenses 

committed with any firearm. Vittes et al., supra note 61, at 26–31. Of those inmates, 

13.4% claimed to have bought the firearm used to commit the crime from a gun store or 

pawn shop. Id. at 30. And only 11.8% of inmates in the study obtained their gun from that 

source legally. Id.73 But unlike another study conducted by the Bureau of Justice Statistics, 

this study does not appear to account for whether the reported gun store or pawn shop was 

licensed or whether the purchase was made under the inmate’s own name. A Bureau of 

Justice Statistics study suggests that 1.9% of all prisoners possessing a firearm bought it 

from a retailer, and 7–8% of inmates who possessed a firearm during their offense bought 

the gun under their own name from a licensed firearm dealer while 1–2% used another 

name at the licensed dealer and 1–2% bought the gun from an unlicensed seller at a retail 

72 Amici cite the study for the proposition that a minimum legal age of 21 for 

purchasing firearms would have prohibited 17% of the offenders from obtaining firearms 

when their crimes were committed, a finding that “underscore[d] the importance of 

minimum-age restrictions.” J.A. 209–10 (quoting Vittes et al., supra note 61, at 29–30). 

But both the study’s finding and the cited quote expressly relate to laws banning 

possession, not the purchase, of all firearms by those under 21. Vittes et al., supra note 61,

at 30 (“These findings underscore the importance of minimum-age restrictions for firearms 

possession and disqualifications for serious offences committed as juveniles.” (emphasis 

added)).

73 Of the 253 inmates surveyed, only 34 bought a gun from a licensed dealer. Of 

those 34, 4 did so illegally, and 30 did so legally. So 11.8% of the surveyed inmates (30 

divided by the total sample size of 253) legally bought a firearm from a licensed dealer to 

commit their crime. Vittes et al., supra note 61, at 30.
78

source.

74 As a result, very few inmates of any age bought the firearm used at licensed 

dealers generally, much less legally.

Both studies substantially undermine Commissioner Cohen’s claim that “[t]he vast 

majority, in fact, almost all” firearms in the hands of minors come from licensed dealers. 

Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means, 89th Cong. 31

(1965) (testimony of Sheldon S. Cohen). Instead, these studies show that few guns used 

in crimes come from licensed dealers and those guns are rarely transferred from the dealer 

directly to the criminal. The majority come from friends and family, the black market, the 

street, or some other unlicensed source.75 Commissioner Cohen’s statement was already 

insufficient to support the connection between licensed dealers selling firearms to minors 

and minors using those firearms to commit crimes, and these studies show that his 

contentions do not have legs to stand on.

This defect raises an under-inclusivity problem. While under-inclusivity matters 

much less than over-inclusivity, as Congress does not have to combat every facet of a 

problem at once, a law that so under-inclusively addresses the government’s interest by 

74 Bureau of Justice Statistics, Source and Use of Firearms Involved in Crimes: 

Survey of Prison Inmates, 2016, at 1–2, 7–9 (2019), (saved as ECF opinion attachment).

75 Amici’s study shows that 34% of offenders received their guns from family 

members or friends and over 30% received them from the black market. Vittes et al., supra 

note 61, at 29–30. The Bureau of Justice Statistics study shows that the most common 

source (43%) of guns used to commit crimes was off-the-street or the underground market, 

6.4% were stolen, and 17.4% came from other sources such as straw purchasers or the 

location of the crime. Only 10% came from a retail source, including the secondary market, 

and only 8.2% came from a licensed dealer. Bureau of Justice Statistics, Source and Use 

of Firearms Involved in Crimes: Survey of Prison Inmates, 2016, at 7–8 (2019), (saved as 

ECF opinion attachment). 
79

targeting one of the least problematic avenues of purchasing a handgun raises serious 

questions about whether the law actually furthers that interest. Compare Buckley v. Valeo, 

424 U.S. 1, 105 (1976), with Nat’l Inst. of Fam. & Life Advoc. v. Becerra, 138 S. Ct. 2361, 

2376–77 (2018). For example, in Sorrell v. IMS Health Inc., 564 U.S. 552, 572–73 (2011), 

the Supreme Court found that a restriction on sharing prescriber information was too 

narrow to further the interest of physician confidentiality because it allowed the 

information to be given to anyone, just not for marketing purposes. The Court noted that 

a broader “more coherent” policy might withstand scrutiny, but the narrowness of the law 

as it stood burdened rights without meaningfully furthering the government’s stated 

interests. Id. 

The same is true here. At most, amici’s study suggests that 11.8% of inmates who 

used guns to commit crimes bought them legally from licensed dealers. But even closing 

off access to licensed dealers does not mean that the 11.8% would no longer obtain guns, 

as they would likely move to unregulated markets, like most other criminals, without a

background check or other safety measures. In fact, the study itself concludes that 

“criminals avoid the regulated gun market of licensed sellers and prefer the largely 

unregulated market involving unlicensed sellers. . . . The lack of regulation of firearm sales 

by unlicensed sellers is likely to significantly limit the government’s ability to keep 

firearms from prohibited individuals.” Vittes et al., supra note 61, at 30. Indeed, only 20% 

of inmates who could legally purchase a weapon from a licensed dealer chose that avenue 

rather than another more clandestine route. Id. Even aside from Commissioner Cohen’s 

testimony, these studies undermine any argument that there is a connection between 
80

licensed dealers and firearms used in crime. This is especially true for otherwise legally 

purchased firearms from licensed dealers, which is exactly what this law bans for 18- to

20-year-olds. 

We previously relied on amici’s study to conclude that “very few offenders 

purchased a weapon from a federal firearms dealer, in large part because of the 

background-check requirement.” Hosford, 843 F.3d at 169. There, we upheld a licensing 

regime in part because the government established that pushing buyers into a regulated 

market reduced crime because the regulated market requires background checks, tracking, 

oversight, and more. Id. Yet strangely, the government here wants to push 18- to 20-yearolds away from licensed dealers and into the unregulated markets where most guns used 

for criminal purposes are obtained and where government oversight is more difficult.

Congress justified these restrictions to increase parental oversight of firearm 

purchases in order to reduce youth criminality, but Congress and the government have no 

evidence that parental oversight is effective, much less preferable, to the protections 

provided by licensed dealers. See Pub. L. No. 90-351, tit. IV, § 901(a)(3), 82 Stat. at 225; 

S. Rep. No. 90-1097, at 79; 114 Cong. Rec. 12,309 (statement of Sen. Dodd). In fact, 

Congress went to pains to assure the country that minors could still have various guns and 

possess handguns through other means. See 114 Cong. Rec. 12,309 (statement of Sen. 

Dodd); S. Rep. No. 90-1097, at 79; S. Rep. No. 89-1866, at 58; Pub. L. No. 90–351, tit. 

IV, § 901(b), 82 Stat. at 226. And the ban “perversely assures that when such young adults 

obtain handguns, they do not do so through licensed firearms dealers, where background 

checks are required, see 18 U.S.C. § 922(t), but they go to the unregulated market.” Nat’l 
81

Rifle Ass’n, 714 F.3d at 346 (Jones, J., dissenting). These laws leave youth with three 

options: (1) receive their gun as a gift from their parents or others (not an option for many),

(2) buy it privately (this law does not provide parental oversight of those sales), or (3) 

obtain it illegally. This incentivizes young adults to get guns in less regulated ways, all 

without assuring parental input. So these laws seem to do little to increase parental 

guidance while pushing youth to unlicensed markets without background checks. 

Finally, it is unclear whether these laws have been effective at all. While we 

recognize that it would be difficult to determine the effectiveness of these laws now, 

Congress could have considered the effectiveness of similar state laws before passing these

laws. In fact, one study found that these laws did not influence youth crime rates.76 

Amici’s evidence fares no better. Their primary study shows a decrease in youth suicides

and accidental deaths after the massive 1994 Crime Bill that, in part, banned firearm 

possession for those under 18.

77 But that study has no nexus to 18- to 20-year-old adults. 

It is hard to draw any conclusions on the effect of a handgun-purchase ban from this narrow 

study of a broader ban. And the study admits that state laws that prohibit handgun 

possession for those under a certain age have been ineffective. Gius, supra note 62, at 169; 

76 See Gary Kleck, Regulating Guns Among Young Adults, 44 AM. J. CRIM. JUST.

689, 690–704 (2019) (analyzing data on the effectiveness of the Gun Control Act of 1968 

and various state laws and finding them ineffective).

77 Gius, supra note 62, at 173; see also Monika K. Goyal et al., State Gun Laws and 

Pediatric Firearm-Related Mortality, 144 PEDIATRICS No. 2, at 3 (2019) (reviewing 

stricter state laws, many not dealing with age); Webster et al., supra note 62, at 598 (finding 

that state laws raising the minimum age for handgun purchases to 21 were linked to a 9%

decline in firearm suicide rates among 18-to-20-year-olds).
82

see also Daniel W. Webster et al., The Case for Gun Policy Reforms in America 8 (2012)

(noting that evaluations of laws setting a minimum legal age for handgun purchases or 

possession “have failed to find any beneficial effects of these laws on either juvenile 

homicide victimization or youth suicide”). The study also tells us nothing about crime and

very little about the cause of the decrease in suicides, as it admits that there were many 

other gun-control regulations that could have been contributing causes. Gius, supra note 

622, at 173. At best, amici’s study shows a potential correlation between one part of a 

much broader law and fewer suicides and accidental deaths decades after the law was 

passed. And “the share of violent crime arrests among the 18- to 20-year age group has 

increased, and the use of guns by that group is still disproportionately high.” Nat’l Rifle 

Ass’n, 714 F.3d at 346 (Jones, J., dissenting). Neither the government nor amici can show 

that the burden the challenged laws impose on 18- to 20-year-olds’ rights has led to any 

meaningful or measurable positive effects. This highlights the lack of a reasonable

connection between licensed dealers and gun crimes. 

These laws are both over- and under-inclusive in contravention of the principles 

espoused in Craig. As a result, the laws lack the reasonable fit required to pass intermediate 

scrutiny. 

* * *

Those of good faith on both sides of the gun debate wish to protect lives and uphold 

individual rights. We appreciate the seriousness of gun violence in this country and 

applaud Congress’s laudable desire to curb senseless violence. But we also recognize that 

the Second Amendment embodies a fundamental, pre-existing right that enables “the 
83

people” to preserve their own life, liberty, and property. Striking a balance between those 

interests is a difficult exercise that draws intense passions on both sides. And that is for 

good reason. 

But while Congress—or judges—may have struck a different balance long after 

ratification, that role is foreclosed to us by the balance that the Founders chose. We cannot 

now second-guess or undermine their choice. History makes clear that 18- to 20-year-olds

were understood to fall under the Second Amendment’s protections. Those over 18 were 

universally required to be part of the militia near the ratification, proving that they were 

considered part of “the people” who enjoyed Second Amendment rights, and most other 

constitutional rights apply to this age group. And Congress may not restrict the rights of 

an entire group of law-abiding adults because a minuscule portion of that group commits a 

disproportionate amount of gun violence. Congress’s failure to connect handgun purchases 

from licensed dealers to youth gun violence only serves to highlight the law’s “unduly 

tenuous ‘fit’” with the government’s substantial interests. Craig, 429 U.S. at 202.

Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged 

laws impermissibly burden those rights. As a result, we vacate the district court’s grant of 

the motion to dismiss, reverse the denial of summary judgment, and remand for further 

proceedings. 

VACATED, REVERSED, AND REMANDED
84

Appendix 1: Pre-Ratification Militia Laws

Colony/State Age Citations

Connecticut 16

An Act for Forming, Regulating, and Conducting the Military 

Force of this State (1786), in ACTS AND LAWS OF THE STATE 

OF CONNECTICUT, IN AMERICA 144, 144, 150 (1786).

Delaware 18 An Act for Establishing a Militia Within this State §§ 2, 5 

(1778).

Georgia 16

An Act for Regulating the Militia of the State, and for 

Repealing the Several Laws Heretofore Made for that Purpose 

(1786).

Maryland 16 An Act to Regulate the Militia § 2 (1777).

Massachusetts 16

An Act for Regulating and Governing the Militia of the 

Commonwealth of Massachusetts, and for Repealing All Laws 

Heretofore Made for that Purpose § 2 (1785), in THE 

PERPETUAL LAWS OF THE COMMONWEALTH OF 

MASSACHUSETTS, FROM THE COMMENCEMENT OF THE 

CONSTITUTION, IN OCTOBER 1780, TO THE LAST WEDNESDAY 

IN MAY, 1789, at 338, 339 (1789).

New Hampshire 16

An Act for Forming and Regulating the Militia Within this 

State, and for Repealing All the Laws Heretofore Made for that 

Purpose (1786), in THE LAWS OF THE STATE OF NEWHAMPSHIRE, TOGETHER WITH THE DECLARATION OF 

INDEPENDENCE: THE DEFINITIVE TREATY OF PEACE BETWEEN 

THE UNITED STATES OF AMERICA AND HIS BRITANNIC 

MAJESTY: THE CONSTITUTION OF NEW-HAMPSHIRE, AND THE 

CONSTITUTION OF THE UNITED STATES, WITH ITS PROPOSED 

AMENDMENTS 356, 357 (1792).

New Jersey 16

An Act for the Regulating, Training, and Arraying of the 

Militia, and for Providing More Effectually for the Defence and 

Security of the State § 10 (1781), in ACTS OF THE FIFTH 

GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY, AT A 

SESSION BEGUN AT TRENTON ON THE 24TH DAY OF OCTOBER,

1780, AND CONTINUED BY ADJOURNMENTS 39, 42 (1781); An 

Act for the Better Regulating the Militia § 1 (1777), in ACTS OF 

THE GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY, AT A 

SESSION BEGUN AT PRINCETON ON THE 27TH DAY OF AUGUST 

1776, AND CONTINUED BY ADJOURNMENTS 26, 26 (1777).

New York 16

An Act to Regulate the Militia (1786), in 1 LAWS OF THE STATE 

OF NEW YORK, COMPRISING THE CONSTITUTION, AND THE 

ACTS OF THE LEGISLATURE, SINCE THE REVOLUTION, FROM 

THE FIRST TO THE FIFTEENTH SESSION, INCLUSIVE 227, 227 

(1792).
85

North Carolina 16 An Act to Establish a Militia in this State § 2, (1777), in ACTS 

OF ASSEMBLY OF THE STATE OF NORTH CAROLINA 1, 1 (1777). 

Pennsylvania 18

An Act to Regulate the Militia of the Commonwealth of 

Pennsylvania § 2 (1777), in 9 THE STATUTES AT LARGE OF 

PENNSYLVANIA FROM 1682 TO 1801, at 75, 77 (1903); An Act 

for the Regulation of the Militia of the Commonwealth of 

Pennsylvania § 3 (1780), in 10 THE STATUTES AT LARGE OF 

PENNSYLVANIA FROM 1682 TO 1801, at 144, 146 (1904).

Rhode Island 16

The Act for Better Forming, Regulating and Conducting the 

Military Force of this State (1779), in AT THE GENERAL 

ASSEMBLY OF THE GOVERNOR AND COMPANY OF THE STATE 

OF RHODE-ISLAND, AND PROVIDENCE-PLANTATIONS, BEGUN 

AND HOLDEN AT SOUTH-KINGSTOWN, WITHIN AND FOR THE 

STATE AFORESAID, ON THE LAST MONDAY IN OCTOBER, IN THE 

YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND 

SEVENTY-NINE, AND IN THE FOURTH YEAR OF INDEPENDENCE 

29, 29.

South Carolina 16

An Act for the Regulation of the Militia of this State (1782), in

ACTS PASSED AT A GENERAL ASSEMBLY, BEGUN AND HOLDEN 

AT JACKSONSBURGH, IN THE STATE OF SOUTH-CAROLINA 20, 

20.

Vermont 16

An Act Regulating the Militia of the State of Vermont (1787), 

in STATUTES OF THE STATE OF VERMONT, PASSED BY THE 

LEGISLATURE IN FEBRUARY AND MARCH 1787, at 94, 94 (1787).

Virginia 16 (1775); 

18 (1785)

An Ordinance for Raising and Embodying a Sufficient Force, 

for the Defence and Protection of this Colony (1775), in 9 

WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING 

A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE 

FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9, 

16–17 (1821); An Act to Amend and Reduce into One Act, the 

Several Laws for Regulating and Disciplining the Militia, and 

Guarding Against Invasions and Insurrections § 3 (1785), in 12 

WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING 

A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE 

FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 9, 

10 (1823).
86

Appendix 2: Post-Ratification Militia Laws

Colony/State Age Citations

Connecticut 18

An Act for Forming and Conducting the Military Force of this 

State, Conformable to the Act of Congress, Passed the Eighth 

Day of May, A.D. 1792, Which Is as Follows:—“An Act More 

Effectually to Provide for the National Defence, by 

Establishing an Uniform Militia Throughout the United States” 

§ 1 (1792), in ACTS AND LAWS OF THE STATE OF CONNECTICUT 

IN AMERICA 298, 298–99 (1796).

Delaware 18

An Act for Establishing the Militia in this State § 1 (1793), in 2

LAWS OF THE STATE OF DELAWARE FROM THE FOURTEENTH 

DAY OF OCTOBER, ONE THOUSAND SEVEN HUNDRED, TO THE 

EIGHTEENTH DAY OF AUGUST, ONE THOUSAND SEVEN 

HUNDRED AND NINETY-SEVEN 1134, 1134 (1797).

Georgia 18

An Act to Revise and Amend the Militia Law of this State, and 

to Adapt the Same to the Act of the Congress of the United 

States, Passed the Eighth Day of May, One Thousand Seven 

Hundred and Ninety–Two, Entitled “An Act More Effectually 

to Provide for the National Defence, by Establishing and 

Uniform Militia Throughout the United States” § 9 (1792), in 

DIGEST OF THE LAWS OF THE STATE OF GEORGIA 348, 350 

(1802).

Maryland 18

An Act to Regulate and Discipline the Militia of this State 

pmbl. (1793), in LAWS OF MARYLAND, NOVEMBER SESSION 

1793 (1793).

Massachusetts 18

An Act for Regulating and Governing the Militia of the 

Commonwealth of Massachusetts, and for Repealing All Laws 

Heretofore Made for that Purpose; Excepting an Act Intitled 

“An Act for Establishing Rules and Articles for Governing the 

Troops Stationed in Forts and Garrisons, Within this 

Commonwealth, and also the Militia, When Called into Actual 

Service” § 2 (1793), in ACTS AND LAWS, PASSED BY THE 

GENERAL COURT OF MASSACHUSETTS, BEGUN AND HELD AT 

BOSTON, IN THE COUNTY OF SUFFOLK, ON WEDNESDAY THE 

TWENTY-NINTH DAY OF MAY, ANNO DOMINI, 1793, at 289, 

290 (1793).

New Hampshire 18

An Act for Forming and Regulating the Militia Within This 

State, and for Repealing All the Laws Heretofore Made for that 

Purpose (1792), in THE LAWS OF THE STATE OF NEW 

HAMPSHIRE, PASSED AT A SESSION OF THE HONORABLE 

GENERAL-COURT, BEGUN AND HOLDEN AT EXETER,

NOVEMBER 1972, at 441, 441 (1793).
87

New Jersey 18

An Act for Organizing and Training the Militia of this State § 4 

(1792), in ACTS OF THE SEVENTEENTH GENERAL ASSEMBLY OF 

THE STATE OF NEW JERSEY 824, 825 (1792).

New York 18

An Act to Organize the Militia of this State (1793), in LAWS OF 

THE STATE OF NEW YORK, PASSED AT THE SIXTEENTH SESSION 

OF THE LEGISLATURE 440, 440.

North Carolina 18

An Act for Establishing a Militia in this State § 1 (1786), in THE 

LAWS OF NORTH-CAROLINA 18, 18 (amended by An Act to 

Carry into Effect an Act of Congress, Entitled, “An Act More 

Effectually to Provide for the National Defence, by 

Establishing an Uniform Militia Throughout the United States,” 

Also to Amend an Act, Passed at Fayetteville, in the Year One 

Thousand Seven Hundred and Eighty Six, Entitled, “An Act for 

Establishing the Militia in this State” (1793)).

Pennsylvania 18

An Act for the Regulation of the Militia of the Commonwealth 

of Pennsylvania § 1 (1793), in THE STATUTES AT LARGE OF 

PENNSYLVANIA FROM 1682 TO 1801, at 454, 455 (1909).

Rhode Island 18 *

South Carolina 18

An Act to Organize the Militia Throughout the State of South 

Carolina, in Conformity with the Act of Congress (1794), in

ACTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY, OF THE 

STATE OF SOUTH-CAROLINA, PASSED IN APRIL, 1794, at 1, 2 

(1794) (evidencing a shift from the former militia age of 16 

mandated in An Act for the Regulation of the Militia of this 

State (1782), in ACTS PASSED AT A GENERAL ASSEMBLY OF 

THE STATE OF SOUTH-CAROLINA, &C, 20, 20).

Vermont 18

An Act, for Regulating and Governing the Militia of this State 

§ 1 (1797), in 2 THE LAWS OF THE STATE OF VERMONT,

DIGESTED AND COMPILED INCLUDING THE DECLARATION OF 

INDEPENDENCE, THE CONSTITUTION OF THE UNITED STATES,

AND OF THIS STATE 122, 122 (1808).

Virginia 18 **

* The most relevant Founding-era law we could find from Rhode Island set the militia age 

at 18 in 1794. An Act to Organize the Militia of this State (1794), in AT THE GENERAL 

ASSEMBLY OF THE GOVERNOR AND COMPANY OF THE STATE OF RHODE-ISLAND AND 

PROVIDENCE-PLANTATIONS, BEGUN AND HOLDEN BY ADJOURNMENT AT EASTGREENWICH, WITHIN AND FOR THE STATE AFORESAID, ON THE LAST MONDAY IN MARCH,

IN THE YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND NINETY-FOUR, AND OF 

INDEPENDENCE THE EIGHTEENTH 14, 14–15 (1794) (reprinting the federal Militia Act and 

organizing the militia in line with federal law setting the age at 18). Prior laws had set the 

militia age at 16. The Act for Better Forming, Regulating and Conducting the Military 
88

Force of this State (1779), in AT THE GENERAL ASSEMBLY OF THE GOVERNOR AND 

COMPANY OF THE STATE OF RHODE-ISLAND, AND PROVIDENCE-PLANTATIONS, BEGUN AND 

HOLDEN AT SOUTH-KINGSTOWN, WITHIN AND FOR THE STATE AFORESAID, ON THE LAST 

MONDAY IN OCTOBER, IN THE YEAR OF OUR LORD ONE THOUSAND SEVEN HUNDRED AND 

SEVENTY-NINE, AND IN THE FOURTH YEAR OF INDEPENDENCE 29, 29; An Act, Regulating 

the Militia in this Colony, in THE CHARTER, GRANTED BY HIS MAJESTY, KING CHARLES 

II. TO THE GOVERNOR AND COMPANY OF THE ENGLISH COLONY OF RHODE-ISLAND AND 

PROVIDENCE-PLANTATIONS, IN NEW-ENGLAND, IN AMERICA 179, 179 (1767).

** Preceding ratification, Virginia required 18-year-olds to join the militia and bring their 

own arms. An Act to Amend and Reduce into One Act, the Several Laws for Regulating 

and Disciplining the Militia, and Guarding Against Invasions and Insurrections § 3 (1785), 

in 12 WILLIAM WALLER HENING, THE STATUTES AT LARGE;BEING A COLLECTION OF ALL 

THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 

1619, at 9, 10, 12 (1823). This law also created a separate company for 18- to 25-yearolds that trained more often than the rest of the militia. Id. § 3, in HENING, supra, at 14–

15. Following ratification, Virginia’s militia law did not mention age or equipment, 

focusing more on the organization by county. An Act for Regulating the Militia of this 

Commonwealth (1792), in A COLLECTION OF ALL SUCH ACTS OF THE GENERAL 

ASSEMBLY OF VIRGINIA, OF A PUBLIC AND PERMANENT NATURE, AS ARE NOW IN FORCE

282, 282–90 (1803). But the act did not alter the age requirements set in 1785 and kept the 

light company of 18- to 25-year-olds. Like many other statutes at the time, however, 

Virginia’s law said that it was helping to “carry the [federal Militia Act] into effect.” Id. 

§ 1, in A COLLECTION OF ALL SUCH ACTS, supra, at 282. And the federal Militia Act 

required 18-year-olds to enlist and bring their own arms.
89

WYNN, Circuit Judge, dissenting: 

Today, my good colleagues in the majority break new ground by invalidating a 

modest and long-established effort to control gun violence. The majority holds that 

Congress may not enact a law making 21 the minimum age to purchase handguns from 

federally licensed gun dealers. 

But the majority’s decision to grant the gun lobby a victory in a fight it lost on 

Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the 

proper role of the federal judiciary in our democratic system. Cf. Kolbe v. Hogan, 849 F.3d 

114, 149–150 (4th Cir. 2017) (en banc) (Wilkinson, J., concurring) (arguing that because 

“[n]o one really knows what the right answer is with respect to the regulation of firearms,” 

we federal judges ought not “[d]isenfranchis[e] the American people on this life and death 

subject” by arrogating to ourselves “decisions that have been historically assigned to other, 

more democratic, actors”). 

To be sure, the Second Amendment’s right to keep and bear arms is an exceptional 

right, just not in the way the majority imagines. According to my colleagues, even though 

all individual constitutional rights are subject to limitations, the Second Amendment risks 

being relegated to a disfavored “second-class status.” Maj. Op. at 3.

While they are not alone in this concern, see, e.g., Silvester v. Becerra, 138 S. Ct. 

945, 945 (2018) (Thomas, J., dissenting from denial of certiorari) (arguing that the Second 

Amendment protects a “disfavored right” that lower courts have treated “cavalierly”), I do 

not share it. Indeed, in a country that boasts a Congress, bench, bar, academy, and electorate 

that are all attentive to the prerogatives of gun owners, where many may conceal their 
90

weapons,1 carry them openly,2 or “stand their ground,”3 and where civilian gun ownership 

rates are second to none,4 the majority’s second-class status concern is simply surreal.5

No, the Second Amendment is exceptional not because it is uniquely oppressed or 

imperiled, but rather because it is singularly capable of causing harm. As other courts have 

recognized, while there are dangers inherent in other constitutionally protected rights—

1 At present, “[e]very state—as well as the District of Columbia—allows the 

carrying of concealed weapons in some form.” Giffords Law Center to Prevent Gun 

Violence (“Giffords”), Concealed Carry, https://giffords.org/lawcenter/gun-laws/policyareas/guns-in-public/concealed-carry/. 

2 Giffords, Open Carry, https://giffords.org/lawcenter/gun-laws/policy-areas/gunsin-public/open-carry/ (noting that “many states now place few or no restrictions on open 

carry”).

3 Giffords, Stand Your Ground, https://giffords.org/lawcenter/gun-laws/policyareas/guns-in-public/stand-your-ground-laws/, (“A majority of states (30) have now 

enacted Stand Your Ground laws applicable in all public places.”). 

4 Aaron Karp, Estimating Global Civilian-Held Firearms Numbers: Briefing Paper, 

Small Arms Survey, June 2018 at 4, http://www.smallarmssurvey.org/fileadmin/docs/TBriefing-Papers/SAS-BP-Civilian-Firearms-Numbers.pdf (establishing that the United 

States has the highest rates of civilian possession of firearms, both in terms of absolute 

numbers and in terms of the number of firearms per 100 residents, and that our nearest 

peers on both fronts—India and Yemen, respectively—each come in a distant second). 

5 Cf. Linda Greenhouse, Uncomfortable Timing for a Supreme Court Gun Fight, 

N.Y. Times (Apr. 22, 2021), https://www.nytimes.com/2021/04/22/opinion/supremecourt-gun-rights-second-amendment.html (“I’ve always been puzzled by the notion that 

any limitation on the Second Amendment converts it into some sort of second-class right. 

I can’t think of a constitutional right that the Supreme Court has interpreted as absolutely 

unlimited.”).
91

like the rights to speak and assemble—the Second Amendment alone protects a direct and 

lethal right to endanger oneself and others.6

We are fortunate, then, that our courts have hitherto been careful to construe the 

Second Amendment in a manner that gives the people latitude to try to control gun violence 

through the democratic process. In the Fourth Circuit, as in nearly every other circuit, we 

protect the individual right to keep and bear arms while honoring the public’s “right not to 

be shot,” Lowy, supra, at 204, by applying a two-step analysis.7

6 E.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (“The risk 

inherent in firearms and other weapons distinguishes the Second Amendment right from 

other fundamental rights that have been held to be evaluated under a strict scrutiny test, 

such as the right to marry and the right to be free from viewpoint discrimination, which 

can be exercised without creating a direct risk to others.”); Heller v. Dist. of Columbia, 801 

F.3d 264, 283 (D.C. Cir. 2015) (“Heller III”) (Henderson, J., concurring in part and 

dissenting in part) (“Although our Second Amendment precedent draws on First 

Amendment and voting-rights cases, the right to bear arms is meaningfully different from 

the rights to speak and vote. . . . [T]he reality of gun violence means our constitutional 

analysis should incorporate deference to the legislature.” (internal citations omitted)); 

Piszczatoski v. Filko, 840 F. Supp. 2d 813, 816 (D.N.J. 2012) (“[The Second Amendment] 

privilege is unique among all other constitutional rights to the individual because it permits 

the user of a firearm to cause serious personal injury—including the ultimate injury, 

death—to other individuals, rightly or wrongly.”), aff’d sub nom. Drake v. Filko, 724 F.3d 

426 (3d Cir. 2013); see also Jonathan Lowy & Kelly Sampson, The Right Not to Be Shot: 

Public Safety, Private Guns, and the Constellation of Constitutional Liberties, 14 Geo. J.L. 

& Pub. Pol’y 187, 194 (2016) (“No other right exposes the public to such grave risks of 

lethal, imminent harm.”). 

7 On a public right to live—or “right not to be shot,” see Lowy, supra, at 204–05. 

On the ubiquity of analyzing Second Amendment challenges through a two-step 

framework, see Maj. Op. at 11 n.5 (collecting cases). The Eighth Circuit, which has not 

expressly addressed the issue, appears to be the lone holdout in not adopting the Second 

Amendment two-step inquiry. But see United States v. Adams, 914 F.3d 602, 607–08 (8th 

Cir. 2019) (Kelly, J., concurring in the judgment) (faulting the majority for not applying 

the “sensible, two-pronged approach” employed by the other circuits for analyzing gun 

rights claims). 
92

Under this approach, we first ask “whether the challenged regulation ‘burdens or 

regulates conduct that comes within the scope of the Second Amendment.’” Harley v. 

Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021) (quoting United States v. Chester, 628 F.3d 

673, 680 (4th Cir. 2010)). Then, “[i]f the challenged regulation satisfies this first prong, or 

if we assume without deciding that the regulation meets this requirement, we turn to 

perform under our second prong a ‘means-end’ review, in which we consider the regulation 

under the appropriate level of constitutional scrutiny.” Id. (quoting Chester, 628 F.3d at 

680). 

We have also applied a “simplifie[d]” version of this analysis for “prohibitions 

deemed ‘presumptively lawful’” by the Supreme Court in District of Columbia v. Heller, 

554 U.S. 570 (2008). United States v. Hosford, 843 F.3d 161, 165 (4th Cir. 2016). As 

discussed below, Heller deemed longstanding conditions and qualifications on the 

commercial sale of firearms to be presumptively lawful, and our circuit precedent in United 

States v. Hosford establishes that facial challenges against such regulations must fail. 

Purporting to apply our two-step approach, the majority breaks new ground and 

creates a circuit split by striking down a modest effort at gun control passed more than fifty 

years ago that does not prevent young adults from purchasing, possessing, or using 

handguns. 

Conversely, I would hold that the challenged provisions are facially valid 

longstanding conditions and qualifications on the commercial sale of arms. In the 

alternative, I would assume on the first prong of our two-part approach that the challenged 

provisions burden conduct protected by the Second Amendment. I would then join the Fifth 
93

Circuit in holding on prong two that the challenged provisions easily survive intermediate 

scrutiny. 

Because the majority holds otherwise, I respectfully dissent. In doing so, I consign 

neither “the Second Amendment [n]or 18- to 20-year-olds to a second-class status.” Maj. 

Op. at 3. 

I.

In Heller, the Supreme Court recognized the “right of law-abiding, responsible 

citizens to use arms in defense of hearth and home.” 554 U.S. at 635. However, Heller 

itself emphasized that it was “not meant ‘to clarify the entire field’ of Second Amendment 

jurisprudence,” Hosford, 843 F.3d at 165 (quoting Heller, 554 U.S. at 635), and that it 

should not “be taken to cast doubt on longstanding prohibitions on the possession of 

firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in 

sensitive places such as schools and government buildings, or laws imposing conditions 

and qualifications on the commercial sale of arms,” Heller, 554 U.S. at 626–27. Heller

dubbed these sorts of firearm restrictions “presumptively lawful” and explained that it 

identified these measures “only as examples” and that its “list d[id] not purport to be 

exhaustive.” Id. at 627 n.26.

This was no idle prattle. Cf. Carlton F.W. Larson, Four Exceptions in Search of a 

Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 

(2009) (criticizing Heller’s discussion of presumptively lawful regulatory measures as “ad 

hoc” and “patchy” but nonetheless acknowledging that to the extent the discussion was 
94

dicta, it was “dicta of the strongest sort”). In fact, in its only significant post-Heller Second 

Amendment case, McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court 

“repeat[ed] [its] assurances” that its holding in Heller “did not cast doubt on such 

longstanding regulatory measures as . . . [‘]laws imposing conditions and qualifications on 

the commercial sale of arms.’” 561 U.S. at 786 (plurality opinion) (quoting Heller, 554 

U.S. at 626–27). 

As the majority recognizes, we have fashioned “a more streamlined analysis” for 

Second Amendment challenges to regulatory measures deemed presumptively lawful in 

Heller. Maj. Op. at 13–14. Specifically, we have held that facial challenges to such 

measures fail.8 Hosford, 843 F.3d at 166 (“Hosford’s facial challenge fails if the 

prohibition against unlicensed firearm dealing is the type of regulation deemed 

‘presumptively lawful’ in Heller.”). Because Plaintiff Natalia Marshall9 brought a facial, 

8 In dicta, the majority suggests that a facial challenge to a presumptively lawful 

measure will not always fail. See Maj. Op. at 13–14 (“If a law falls within [Heller’s list of 

presumptively lawful measures], we conduct a more streamlined analysis. This often 

effectively ends the inquiry and upholds the law as facially valid. But not always.” (internal 

citations omitted)). In support of that statement, the majority cites to our precedent in 

Hamilton v. Pallozzi, 848 F.3d 614, 624–25 (4th Cir. 2017), and United States v. Pruess, 

703 F.3d 242, 245–46 (4th Cir. 2012). But it is unclear how these cases, both of which 

involved as-applied challenges to felon-in-possession laws, support the majority’s position. 

To the extent that the majority believes a facial, rather than as-applied, challenge to a 

presumptively lawful measure can succeed, that belief squarely contradicts Hosford. See 

Hosford, 843 F.3d at 167 (“[T]he prohibition against unlicensed firearm dealing is a 

longstanding condition or qualification on the commercial sale of firearms. As a result, 

Hosford’s facial Second Amendment challenge fails.”). To be sure, plaintiffs can still make 

as-applied challenges to presumptively lawful measures, id., but no such challenge was 

brought in this case.

9 As the majority finds, this case is moot as to Plaintiff Tanner Hirschfeld.
95

and not an as-applied challenge, we can therefore resolve this case quickly if we determine 

that the challenged provisions are presumptively lawful as (1) longstanding (2) conditions 

and qualifications (3) on the commercial sale of arms.10 Id. at 166–67. 

Here, the challenged provisions indisputably cover “only the commercial sale of 

firearms.” Id. at 166. Young adults aged 18 to 20 may still possess and use handguns, may 

still receive handguns as gifts, and can even purchase handguns through unlicensed, but 

otherwise legal, private sales.11 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, 

Tobacco, Firearms & Explosives, 700 F.3d 185, 189–90 (5th Cir. 2012) (“NRA”). In other 

words, in enacting the challenged provisions, Congress was careful not to burden use, 

possession, or non-commercial sales.12

The challenged provisions are also longstanding. Importantly, “a regulation can be 

deemed ‘longstanding’ even if it cannot boast a precise founding-era analogue.” NRA, 700 

F.3d at 196–97, 202–03 (collecting authorities and concluding that the same provisions at 

10 While the district court conducted both a facial and an as-applied analysis, “[w]e 

look to the scope of the relief requested to determine whether a challenge is facial or asapplied in nature.” AFSCME Council 79 v. Scott, 717 F.3d 851, 862 (11th Cir. 2013) (citing 

Doe v. Reed, 561 U.S. 186, 194 (2010)). Here, Marshall requested a broad declaration that 

the challenged provisions were unconstitutional and requested that they be enjoined 

generally, not simply as to her. Her claim was thus facial in nature. The majority agrees. 

11 And, of course, they can still purchase and use long guns. See 18 U.S.C. 

§ 922(b)(1).

12 While every sale is “commercial” in the sense that an exchange of value occurs, 

we distinguish between commercial sales—that is, sales made by those who “regularly sell 

firearms, not owned for personal use, in the course of trade or business for the principal 

purpose of profit”—and non-commercial sales, that is, infrequent, non-professional sales 

as may occur, for example, between friends. Hosford, 843 F.3d at 166. 
96

issue in this case are “consistent with [the] longstanding, historical tradition” of “age-based 

restrictions on the purchase of firearms”). Indeed, much more recent regulations can 

qualify. See Hosford, 843 F.3d at 166–67 (finding a licensing requirement for firearm 

dealers to be “longstanding” when it had been required by the federal government since 

1938); Drake, 724 F.3d at 431–34 (relying on late nineteenth- and early twentieth-century 

authorities to conclude that a New Jersey law requiring applicants to demonstrate a 

“justifiable need” to obtain a permit to publicly carry a handgun was a “longstanding” 

regulation); Silvester v. Harris, 843 F.3d 816, 818 (9th Cir. 2016); id. at 831 (Thomas, C.J., 

concurring) (contending that California’s ten-day waiting period to buy a gun was 

“longstanding” because it had been on the books in some form since 1923). 

This rule follows from Heller, which listed “prohibitions on the possession of 

firearms by felons” as examples of the type of “longstanding” regulations that it did not 

“cast doubt on.” Heller, 554 U.S. at 626–27. This is an illustrative example because, as the 

D.C. Circuit observed in Heller II, “states did not start to enact [prohibitions on the 

possession of firearms by felons] until the early 20th century.” Heller v. Dist. of Columbia, 

670 F.3d 1244, 1253 (D.C. Cir. 2011) (citing C. Kevin Marshall, Why Can’t Martha 

Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 708 (2009)). Furthermore, “Heller 

considered firearm possession bans on . . . the mentally ill to be longstanding” despite the 

fact that the “current version[] of th[is] ban[] [is] of mid-20th century vintage,” dating back 

to 1968. NRA, 700 F.3d at 196–97 (citing United States v. Skoien, 614 F.3d 638, 640–41 

(7th Cir. 2010) (en banc) (explaining that the federal ban on possession by the mentally ill 

was passed in 1968)). 
97

Here, the challenged provisions are longstanding because they, just like the federal 

ban on possession of firearms by the mentally ill, were passed in 1968—over fifty years 

ago—and because similar provisions making 21 the minimum age to purchase or use 

certain firearms have been commonplace for more than a century. As the Fifth Circuit noted 

in NRA, “by the end of the 19th century, nineteen States and the District of Columbia had 

enacted laws expressly restricting the ability of persons under 21 to purchase or use 

particular firearms, or restricting the ability of ‘minors’ to purchase or use particular 

firearms while the state age of majority was set at age 21.” Id. at 202. Furthermore, by 

1923, “twenty-two States and the District of Columbia had made 21 the minimum age for 

the purchase or use of particular firearms.” Id. Considering this pedigree, the challenged 

provisions are sufficiently longstanding.13

The question of whether the challenged provisions constitute “conditions and 

qualifications” is somewhat trickier because the Supreme Court “did not explain what 

precisely it meant by the phrase.” Silvester v. Harris, 41 F. Supp. 3d 927, 962 (E.D. Cal. 

13 The majority contends that the Fourteenth Amendment was enacted, in part, to 

protect the rights of recently emancipated slaves to bear arms in the face of southern efforts 

to disarm them and that we should therefore be cautious about using “Civil-War-era state 

laws that restricted the right to bear arms as evidence of the scope of the Second 

Amendment right at the time of the Founding.” Maj. Op. at 24. However, here, I merely 

seek to understand whether laws restricting the ability of young adults to buy guns are 

“longstanding.” The existence of antebellum and Reconstruction-era laws regulating the 

use of firearms by young adults is undoubtedly relevant to this inquiry. Furthermore, while 

I leave for another day the question of what—if any—role America’s racial history ought 

to play in our Second Amendment jurisprudence, I am not convinced that the Second 

Amendment is best understood as a guarantor of the rights and liberties of freedmen and 

their descendants. See generally Carol Anderson, The Second: Race and Guns in a Fatally 

Unequal America (2021).
98

2014), rev’d on other grounds, 843 F.3d 816. Fortunately, the terms “conditions” and 

“qualifications” have uncontroversial common meanings. Silvester, 843 F.3d at 830 

(Thomas, C.J., concurring). A condition “is [s]omething established or agreed upon as a 

requisite to the doing or taking effect of something else” and a qualification is a “condition 

precedent that must be complied with for the attainment of a status,” such as “for admission 

to an office.” Id. (alteration in original) (quoting dictionary definitions). Thus, a condition 

and qualification on the commercial sale of arms is simply a prerequisite or requirement 

that a purchaser or seller must comply with before engaging in a commercial gun 

transaction.

In Hosford, we further refined this definition by distinguishing such conditions and 

qualifications—which, if they are also longstanding, are presumptively lawful—from 

regulations “so prohibitive as to . . . functional[ly] prohibit[]” the sale of firearms. 843 F.3d 

at 166. The challenged provision at issue in Hosford was a licensing scheme that required 

a prospective firearm dealer to obtain a license by submitting an application, paying a fee, 

establishing lawful premises for selling firearms, and being at least 21 years old. Id. In 

upholding the scheme, we distinguished it from the functional prohibitions on the sale of 

weapons discussed in two other cases. Id. (citing Illinois Ass’n of Firearms Retailers v. 

City of Chicago, 961 F. Supp. 2d 928 (N.D. Ill. 2014); Teixeira v. Cnty. of Alameda, 822 

F.3d 1047 (9th Cir. 2016), rev’d on other grounds, 873 F.3d 670, 673 (9th Cir. 2017) (en 

banc)).

The first, Illinois Association of Firearms Retailers, invalidated a Chicago law that 

totally banned the sale and transfer of all firearms except by inheritance. 961 F. Supp. 2d 
99

at 930–931. In the second, a divided panel of the Ninth Circuit reasoned that a zoning 

ordinance that flatly banned the sale of guns would be subject to stricter scrutiny than an 

ordinance that merely regulated the location of gun stores. Teixeira, 822 F.3d at 1059–60. 

However, both the majority and the partially dissenting judge agreed that the zoning 

ordinance at issue—which prohibited establishing a gun store within 500 feet of a 

residentially zoned district—merely placed conditions and qualifications on the 

commercial sale of arms.14 Id. at 1050, 1058; id. at 1064 (Silverman, J., concurring in part 

and dissenting in part).

In contrast, the challenged provisions here impose no functional prohibition on the 

sale, or, to flip to the other side of the coin, purchase, of firearms. Rather, they merely 

impose a limited condition and qualification on whom a subset of sellers (federally licensed 

dealers) may sell a subset of firearms—handguns—to (not those aged 18 to 20). Put another 

way, while the law at issue in Heller flatly banned handgun possession, and while the 

Chicago ordinance at issue in Illinois Association of Firearms Retailers banned all 

commercial sales (and even gifts) of guns generally, the challenged provisions in this case 

permit federally licensed dealers to sell handguns to most adults, and young adults aged 18 

to 20 can still purchase handguns from other sources. Moreover, unlike regulations that 

amount to functional prohibitions on the sale of arms, this condition and qualification is of 

a temporary duration as to potential purchasers—it evaporates once the would-be purchaser 

turns 21. 

14 The panel majority nevertheless concluded that the law was not “longstanding” 

and therefore was not presumptively lawful under Heller. Teixeira, 822 F.3d at 1058.
100

I would therefore hold that the challenged provisions are presumptively lawful as 

longstanding conditions and qualifications on the commercial sale of arms and thus are 

facially constitutional.

The majority disagrees. While it does not contest the fact that the challenged 

provisions are longstanding and regulate only the commercial sale of arms, it contends that 

Heller’s presumptively lawful category of conditions and qualifications is limited “to laws 

that place conditions and qualifications on the seller, like licensing,” and “does not 

encompass a ban on a class of people seeking to purchase handguns from a qualified seller.” 

Maj. Op. at 16. 

There are two problems with this claim. First, as explained above, the challenged 

provisions are neither a ban on selling handguns nor even a ban on young adults buying 

handguns. Second, and more fundamentally, the challenged provisions cannot be excluded 

from the ranks of presumptively lawful conditions and qualifications on the grounds that 

they place a greater burden on buyers than sellers because every restriction on a seller is 

also a restriction on a buyer, and vice versa. 

Furthermore, the majority asserts that the challenged provisions cannot be 

conditions and qualifications on the commercial sale of arms because “[t]here is nothing a 

law-abiding 18- to 20-year-old can do to buy a handgun from a licensed dealer except wait 

until she turns 21.” Id. at 14. I take the majority to mean that a condition and qualification 

must be something the burdened actor can overcome through her own initiative, rather than 

simply through aging. That is wrong under our precedent. As noted, one of the conditions 
101

and qualifications to obtain a firearm license in Hosford was that the prospective dealer 

“be at least twenty-one years old.” 843 F.3d at 166.

The challenged provisions are therefore longstanding conditions and qualifications 

on the commercial sale of arms. As such, Marshall’s facial challenge fails. Case closed.

II.

Even if Marshall’s claim did not fail as a facial challenge to a longstanding condition 

and qualification on the commercial sale of arms, it would still fail under our normal twostep analysis of Second Amendment challenges.

A.

Once again, at the first step of our two-step analysis, we ask “whether the challenged 

regulation ‘burdens or regulates conduct that comes within the scope of the Second 

Amendment.’” Harley, 988 F.3d at 769 (quoting Chester, 628 F.3d at 680). “This historical 

inquiry seeks to determine whether the conduct at issue was understood to be within the 

scope of the right at the time of ratification.” Chester, 628 F.3d at 680. “If it was not, then 

the challenged law is valid.” Id. 

Here, the majority has done careful historical research and has assembled persuasive 

evidence that young adults aged 18 to 20 had Second Amendment rights at the time the 

amendment was ratified. In light of this evidence, and given this Circuit’s “prudent” 

practice of not “impart[ing] a definitive ruling” at the first step of our two-step inquiry, I 

assume for purposes of this opinion that the challenged provisions burden or regulate 

conduct within the scope of the Second Amendment. Woollard v. Gallagher, 712 F.3d 865, 
102

875 (4th Cir. 2013); see also, e.g., Harley, 988 F.3d at 769. I therefore proceed to the 

second step of our two-step inquiry. 

B.

Having assumed that the challenged provisions burden conduct within the scope of 

the Second Amendment, I move to our second step: considering the challenged provisions 

“under the appropriate level of constitutional scrutiny.” Harley, 988 F.3d at 769. 

Because Heller ruled out the possibility of applying rational-basis review to Second 

Amendment challenges, 554 U.S. at 628 n.27, we must “select between strict scrutiny and 

intermediate scrutiny,” Chester, 628 F.3d at 682. In making this selection, courts consider 

“the nature of the conduct being regulated and the degree to which the challenged law 

burdens the right.” Id.

“[I]ntermediate scrutiny is the appropriate standard [where the challenged 

provision] does not severely burden the core protection of the Second Amendment, i.e., the 

right of law-abiding, responsible citizens to use arms for self-defense in the home.” Kolbe, 

849 F.3d at 138. A law severely burdens this core right if it “effectively disarm[s] 

individuals or substantially affect[s] their ability to defend themselves.” Id. at 139 (holding 

that a law that did not have this disarming effect was subject to intermediate scrutiny) 

(quoting N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 260 (2d Cir. 2015)). 

Extremely few laws are so burdensome. In fact, “there has been near unanimity in the postHeller case law that, when considering regulations that fall within the scope of the Second 

Amendment, intermediate scrutiny is appropriate.” Mai v. United States, 952 F.3d 1106, 
103

1115 (9th Cir. 2020) (quoting United States v. Torres, 911 F.3d 1253, 1262 (9th Cir. 

2019)).

Here, the majority assumes that intermediate scrutiny applies. This is a safe 

assumption. As the Fifth Circuit held in NRA, the challenged provisions should be subject 

to intermediate scrutiny because “they do not prevent 18-to-20-year-olds from possessing

and using handguns in defense of hearth and home,” and “regulate commercial sales 

through an age qualification with temporary effect.” 700 F.3d at 206–07 (internal quotation 

marks omitted); accord Nat’l Rifle Ass’n of Am., Inc. v. McGraw, 719 F.3d 338, 342, 348 

(5th Cir. 2013) (applying intermediate scrutiny to Texas law preventing adults under 21 

from carrying handguns in public). Simply put, a temporary restriction on which sellers 

that young adults can buy handguns from does not severely burden the Second 

Amendment’s core right to at-home self-defense. Accordingly, intermediate scrutiny 

applies.15

15 Plaintiff Marshall’s arguments to the contrary are not compelling. First, she posits 

that we must apply strict scrutiny because the challenged provisions constitute a “universal 

prohibition on the . . . purchase of new or un-owned handguns and . . . ammunition,” and 

that this prohibition is particularly suspect given the importance of handguns to selfdefense. Opening Br. at 34–36. While the Fourth Circuit has shown special solicitude for 

handguns in the past, see Kolbe, 849 F.3d at 138–139, Marshall provides no authority for 

a constitutionally protected right to purchase a new weapon for self-defense. Her attempt 

to jury-rig a class of arms out of what is really a subset of handguns—those purchased from 

a federally licensed dealer—is unpersuasive. See id. at 138 (“The initial weakness in the 

plaintiffs’ theory is that the banned assault weapons cannot fairly be said to be a ‘class’ 

like that encompassing all handguns, in that the banned assault weapons are just some of 

the semiautomatic rifles and shotguns in existence.”). Second, Marshall argues that we 

should decline to apply traditional levels of heightened scrutiny altogether and should 

instead focus on the “text, history, and tradition” of the Second Amendment. Opening Br. 

at 31–32. Binding Fourth Circuit precedent forecloses this approach. E.g., Kolbe, 849 F.3d 

at 133. 
104

C. 

“Under the standard of intermediate scrutiny, the government bears the burden of 

establishing a reasonable fit between the challenged law and a substantial governmental 

objective.” Harley, 988 F.3d at 769. This fit need not be perfect or even the least intrusive 

means of accomplishing the desired objective, United States v. Staten, 666 F.3d 154, 162 

(4th Cir. 2011), and a law “may meet this standard despite being overinclusive in nature,” 

Harley, 988 F.3d at 769. 

“[T]he Constitution does not mandate a specific method by which the government 

must satisfy its burden under heightened judicial scrutiny.” United States v. Carter, 669 

F.3d 411, 418 (4th Cir. 2012). Rather, as the majority recognizes, “[v]arious evidence can 

be mustered” to show a reasonable fit, including legislative findings, academic studies, 

case law, and even common sense, though “anecdote” and “supposition” alone will not cut 

it. Maj. Op. at 61 (collecting authorities) (internal quotation marks omitted). 

Furthermore, in deciding whether a firearm regulation is reasonably related to a 

substantial government interest, we owe “substantial deference to the predictive judgments 

of [Congress.]” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 97 (2d Cir. 2012) (quoting 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997)); accord Schrader v. Holder, 

704 F.3d 980, 990 (D.C. Cir. 2013) (same); Drake, 724 F.3d at 436–37 (same). We owe 

such substantial deference “[i]n the context of firearm regulation” because “the legislature 

is ‘far better equipped than the judiciary’ to make sensitive public policy judgments (within 

constitutional limits) concerning the dangers in carrying firearms and the manner to combat 

those risks.” Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 
105

622, 665 (1994) (plurality opinion)); accord Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 

2019) (same). 

Finally, as the Supreme Court has explained, the “quantum of empirical evidence 

needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down 

with the novelty and plausibility of the justification raised,” with justifications that are 

plausible and not novel requiring less empirical support. Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377, 391 (2000); see id. at 391–95 (finding an affidavit from a state senator, 

citations to newspaper articles, and a statewide vote in support of campaign expenditure 

restrictions to be sufficient evidence to support a state law limiting campaign expenditures). 

Where, as here, intermediate scrutiny applies and the justifications offered by Congress are 

“both familiar and plausible,” they need only be supported by “minimal” empirical 

evidence. Carter, 669 F.3d at 418 (citing Satellite Broad. & Commc’ns Ass’n v. FCC, 275 

F.3d 337, 355, 360 (4th Cir. 2001)). In fact, “[e]ven when applying strict scrutiny—

requiring a more taxing proof threshold than the one we apply here—the government may, 

in appropriate circumstances, carry its burden by relying solely on history, consensus, and 

simple common sense.” Id.(emphasis added) (internal quotation marks omitted) (quoting 

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)). 

With this framework in place, I will now consider whether the challenged provisions 

can withstand intermediate scrutiny. As set forth below, they can. 

***
106

The majority’s intermediate-scrutiny analysis gets off to a good start. As it correctly 

finds, “the government’s interests in preventing crime, enhancing public safety, and 

reducing gun violence are ‘not only substantial, but compelling.’” Maj. Op. at 62 (quoting 

Kolbe, 849 F.3d at 139). But the majority—essentially applying strict scrutiny in sheep’s 

clothing—errs in concluding that no reasonable fit exists between the challenged 

provisions and these laudable objectives. To demonstrate the reasonableness of this fit, I 

first consider the provisions’ text and legislative history, which establish that Congress 

designed a bespoke solution to a specific problem. I then consider scientific research on 

the immaturity of young adults, modern crime and accident statistics, and the state of state 

law on young adults and firearms, all of which further confirm the reasonableness of 

Congress’s approach.

i. The challenged provisions contain their own limiting principles 

The place to start a consideration of the fit between the challenged provisions and 

the government’s interest in public safety is with the legislative text—that is, with what the 

law says it prohibits, and for how long. It cannot be repeated often enough: the provisions 

the majority strikes down today do not keep young adults from owning or using handguns, 

and they impose no limitations whatsoever on the use of long guns. See 18 U.S.C. 

§ 922(b)(1), (c)(1); 27 C.F.R. §§ 478.99(b)(1), 478.96(b), 478.124(a). Little wonder, then, 

that the plaintiffs in this case never alleged that they have been unable to acquire handguns. 

In this regard, the challenged provisions are much less restrictive than the 

restrictions imposed on various classes of individuals by 18 U.S.C. § 922(g), which forbids 

the possession of “any firearm or ammunition” by a member of a restricted class, generally 
107

for life. 18 U.S.C. § 922(g) (emphasis added). And yet, appellate courts—including this 

Court—regularly uphold provisions of § 922(g) against Second Amendment challenges.16

My point is not to compare law-abiding young adults to stalkers, fugitives, or other 

categories of persons prevented by federal criminal law from possessing firearms. Rather, 

I bring up those provisions to emphasize how much less restrictive the challenged 

provisions are than those lifelong bans. This “narrow ambit” weighs in favor of upholding 

the provisions. NRA, 700 F.3d at 205 (explaining that these same provisions’ narrowness 

militated against applying strict scrutiny). 

Moreover, the limited restrictions that the challenged provisions do impose are only 

imposed for a short time. All restrictions vanish when the clock strikes midnight and the 

young adult in question turns 21. As we explained in United States v. Carter, statutes with 

“limited temporal reach” are inherently “less intrusive than other statutes that impose a 

permanent prohibition on the possession of firearms.” 669 F.3d at 419. This case involves 

time-limited provisions that “Congress tailored . . . to cover only the time period during 

16 See, e.g., United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (§ 922(g)(1)’s 

ban on felons possessing firearms is facially constitutional); United States v. Carter, 750 

F.3d 462, 470 (4th Cir. 2014) (§ 922(g)(3)’s ban on possession by those unlawfully using 

or addicted to a controlled substance is constitutional); Mai, 952 F.3d at 1109 

(§ 922(g)(4)’s ban on possession by those previously committed to a mental institution is 

constitutional as applied to plaintiff); United States v. Carpio-Leon, 701 F.3d 974, 975 (4th 

Cir. 2012) (§ 922(g)(5)’s ban on possession by those unlawfully in the United States is 

constitutional); United States v. Jimenez, 895 F.3d 228, 231 (2d Cir. 2018) (§ 922(g)(6)’s 

ban on possession by those dishonorably discharged from the military withstands 

intermediate scrutiny as applied to plaintiff); United States v. Mahin, 668 F.3d 119, 120 

(4th Cir. 2012) (§ 922(g)(8)’s ban on possession while subject to a domestic violence 

protective order is constitutional); Harley, 988 F.3d at 769–70 (§ 922(g)(9)’s ban on 

possession by individuals convicted of domestic violence misdemeanors is constitutional 

as applied to plaintiff (citing Staten, 666 F.3d at 168)).
108

which it deemed [the prohibited] persons to be dangerous.” Id. And this feature of the 

challenged provisions “contributes to [their] proportionality” under heightened review. Id. 

Thus, under our precedent—and indeed, under common sense—a time-limited regulation 

of Second Amendment rights is less burdensome and better-tailored to meet a substantial 

government objective than is a lifelong restriction.

In sum, the challenged provisions contain their own built-in limitations of scope and 

duration. These limitations are powerful evidence that the provisions burden no more 

conduct than is necessary to meet their objectives and so are constitutional. 

ii. The legislative history of the challenged provisions strongly supports their 

constitutionality 

In addition to the legislative text, a provision’s legislative history is one of the “wide 

range of sources” the government can rely on to “establish the fit between a regulation and 

a governmental interest” under intermediate scrutiny. Id. at 418. Here, the legislative 

history of the challenged provisions reinforces that they are reasonably related to the 

government’s compelling interest in promoting public safety by limiting the ability of 

young adults to purchase handguns from federally licensed firearm dealers. 

During the mid-1960s, “Congress conducted a multi-year investigation that revealed 

a causal relationship between the easy availability of firearms to young people under 21 

and the rise in crime.” NRA, 700 F.3d at 207. This investigation was led by Connecticut 

Senator Thomas Dodd and culminated in the enactment of the challenged provisions as 

part of the Omnibus Crime Control and Safe Streets Act and Gun Control Acts of 1968. 

See generally Adam Winkler, Gunfight: The Battle Over the Right to Bear Arms in 
109

America, 248–53 (2011) (describing Dodd’s leadership role in Congressional efforts to 

regulate guns); William J. Vizzard, The Gun Control Act of 1968, 18 St. Louis Univ. Pub. 

L. Rev. 79, 79–86 (1999) (same); Gabrielle Westcott, The Fight for the Gun Control Act 

of 1968, Univ. of Conn. Library Archives and Special Collections Blog, Sept. 15, 2016 

[hereinafter Westcott Blog] (same).17

Dodd’s legislative efforts started in 1961 when he began serving as head of the 

Juvenile Justice Subcommittee of the Senate Judiciary Committee. Vizzard, supra, at 80. 

After two years of researching gun violence and in the immediate aftermath of President 

Kennedy’s assassination, Dodd introduced a bill, S. 1975, that sought to address “the ease 

with which juveniles and criminals could anonymously purchase mail-order guns and thus 

circumvent state laws regarding the sale of firearms.” Westcott Blog; see also Winkler, 

supra, at 248. This bill stalled and then died in committee. Vizzard, supra, at 80; Westcott 

Blog. 

Following President Johnson’s election in 1964, Dodd reintroduced his gun control 

bill at the start of the 89th Congress in January 1965. Vizzard, supra, at 80; Westcott Blog. 

But soon, at the Johnson Administration’s behest, he introduced a new measure, Senate 

Bill 1592, that called for prohibiting the sale of handguns to those under 21. See Vizzard, 

supra, at 80, 82; Westcott Blog. Though it would take three more years to become law, this 

prohibition was eventually enacted in the form of the challenged provisions.

17 Westcott’s piece is available at blogs.lib.uconn.edu/archives/2016/09/15/thefight-for-the-gun-control-act-of-1968/. 
110

I start with this scene-setting to emphasize a basic point: the challenged provisions 

were not a slapdash effort. Rather, they were the careful, deliberative “culmination of five 

years of legislative effort and seven years of investigation on the part of Senator Dodd and 

the Subcommittee on Juvenile Delinquency.” Westcott Blog. And what did Senator Dodd 

and his congressional colleagues find at the culmination of their years of inquiry? They 

found “a causal relationship between the easy availability of firearms other than a rifle or 

shotgun and juvenile and youthful criminal behavior.” Pub. L. No. 90-351, tit. IV, 

§ 901(a)(6).

This conclusion tying young adults’ ability to access handguns with threats to public 

safety is adequately supported by the legislative record, provided that we view our job as 

looking for a reasonable fit between government action and objective and not as 

“weigh[ing] conflicting evidence and mak[ing] policy judgments.” Kolbe, 849 F.3d at 140 

(quoting Woollard, 712 F.3d at 881). After all, the latter “is the legislature’s job, not ours.” 

Id. (quoting Woollard, 712 F.3d at 881). I consider Congress’s chief conclusions step by 

step. 

Start with Congress’s determination that Americans under 21 pose a special danger 

to society and to themselves. As the majority notes, Congress had before it ample evidence 

that individuals under 21 were involved in a substantial share of the nation’s criminal 

activity. See Maj. Op. at 5–6 & n.2 (acknowledging that at the time of the enactments, 

minors under 21 accounted for 64 percent of all arrests for serious crimes in the United 

States and “35 percent of the arrests for the serious crimes of violence including murder, 

rape, robbery, and aggravated assault and 21 percent of the arrests for murder” (internal 
111

citations and quotation marks omitted)). For instance, Congress knew that in New York 

City in 1962, 46.3 percent of all those arrested for felonies were under 21. S. Rep. 88-1340, 

at 15–16 (1964). Indeed, during the 1960s, many believed the country to be experiencing 

an epidemic of youthful criminality. See, e.g., Maj. Op. at 5–6 n.2 (quoting federal 

officials’ testimony that the “greatest growth of crime [at the time was] in the area of young 

people, juveniles and young adults”). This fear was hardly baseless. See, e.g., 109 Cong. 

Rec. 13946 (1963) (statement of Sen. Dodd) (“[A]ccording to the FBI, during the 5 years 

between 1955 and 1960, when the juvenile population increased by 25 percent, the number 

of youngsters arrested for carrying guns went up nearly twice as fast.”); 114 Cong. Rec. 

13322 (1968) (statement of Sen. Dodd) (“[S]ince 1960, arrests of juveniles [for robbery] 

have increased 55 percent.”).18 

In addition to worrying about youthful crime and gun violence, Congress was also 

concerned about self-harm and accidents involving firearms. Back in 1963, Senator Dodd 

lamented that “[o]f the more than 18,000 annual suicides [in the country], fully half [were] 

committed with the use of firearms.” 109 Cong. Rec. 13946. He raised the same concerns 

18 While I recognize “the inherent danger of drawing causal connections between 

rates of arrest and incidences of criminal activity,” Powell v. Tompkins, 926 F. Supp. 2d 

367, 393 (D. Mass. 2013), other statistics help confirm that America did indeed experience 

an increase in violent crime during the 1960s, lessening any concern about relying on arrest 

statistics, see, e.g., Federal Firearms Legislation: Hearings Before the Subcomm. to 

Investigate Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th Cong. 1 (1968) 

(statement of Senator Dodd) (citing FBI statistics establishing that between 1964 and 1967 

murder by gun “increased 51 percent; aggravated assault by gun increased an incredible 84 

percent; and armed robbery increased 57 percent”); Lauren-Brooke Eisen & Oliver Roeder, 

America’s Faulty Perception of Crime Rates, Brennan Ctr. for Just. (Mar. 16, 2015), 

https://www.brennancenter.org/our-work/analysis-opinion/americas-faulty-perceptioncrime-rates (“[T]he violent crime rate increased by 126 percent between 1960 and 1970.”). 
112

during the final push to pass the Omnibus Crime Control and Safe Streets Act of 1968, 

stating on May 8, 1968 that “[t]he surest and easiest way to kill one’s self is with a 

firearm—especially when the firearm is immediately at hand. And when it comes to 

suicides by firearms, the discrepancy between the rate in this country and the rate in other 

civilized countries is equally astounding.” 114 Cong. Rec. 12305. He was joined in this 

sentiment by Attorney General Nicholas Katzenbach, who argued that “[i]n a country in 

which half the 20,000 suicides of 1963 were committed by firearms, congressional action 

is called for now.” Proposed Amendments to The National Firearms Act and The Federal 

Firearms Act: Hearings Before the Comm. on Ways and Means, 89th Cong. 73 (1965) 

[hereinafter Ways and Means: 1965 Hearing] (statement of Attorney General Katzenbach). 

Beyond suicide, Congress was also concerned with simple gun accidents and the 

toll they took on young people. For instance, Senator Dodd’s Juvenile Delinquency 

Subcommittee heard testimony from a Pittsburg police officer who testified regarding a 

“typical case” of gun injury in his city in which a 20-year-old bought a handgun, loaded it, 

and then “attempted to expel the cartridge by striking it with a hatchet which resulted in 

his being wounded in the right cheekbone.” S. Rep. 88-1340, at 17 (1964); see also id. at 

27 (concluding that the “indiscriminate sale of [mail-order] firearms ha[d] resulted in 

accidental tragedies including loss of life and serious injury”). 

Though the majority ignores this evidence, prominent supporters of the challenged 

provisions also highlighted the depressing pervasiveness of gun accidents while advocating 

for passage of the Crime Control and Safe Streets Act. See 114 Cong. Rec. 12299 (1968) 

(statement of Sen. Fong) (estimating that in 1966, firearms were involved in 10,000 
113

suicides and 2,600 accidental deaths and arguing that this “staggering toll” helped 

demonstrate “the urgent need for a comprehensive [gun] law”); id. at 12303 (statement of 

Sen. Dodd) (arguing that Title IV, which housed the challenged provisions, “represent[ed] 

a long-overdue legislative reaction to the terrible toll of life and limb extracted each year 

in our country by firearms,” including an estimated “270,000 suicides, and 145,000 deaths 

by accident” between 1900 and 1966); cf. Federal Firearms Act: Hearings Before the 

Subcomm. to Investigate Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th 

Cong. 29, 31 (1967) (speech of Sen. Kennedy of Mass.) (arguing that Senate Bill 1—a 

legislative predecessor to the challenged provisions that also prevented those under 21 from 

buying handguns from federally licensed dealers—could help “avoid one murder, one 

suicide, one accident, or ten, or a hundred, or a thousand” and was “the best measure 

anyone ha[d] devised” to prevent crime, suicides, and gun accidents). 

Next, in contemplating its legislative options for responding to the significant harm 

caused by people armed with guns in the form of crime, suicides, and accidents, Congress 

heard from law-enforcement professionals who believed that further regulating access to 

firearms would promote public safety. For example, FBI Director J. Edgar Hoover 

concluded that “those who claim that the availability of firearms is not a factor in murders 

in this country are not facing reality.” Ways and Means: 1965 Hearing, at 73 (statement of 

Attorney General Katzenbach (quoting Hoover’s 1963 Law Enforcement Bulletin)). 

Other law-enforcement professionals agreed that regulating youth access to 

firearms, in particular, would reduce gun injuries and deaths. Senator Dodd noted that “law 

enforcement experts virtually to a man agree that we can curb these serious increases in 
114

crimes of violence by young people, by restricting the availability of guns to them.” 114

Cong. Rec. 13643–44 (1968). In fact, broad swaths of the nation’s law-enforcement 

establishment favored stricter gun control measures than those Congress ultimately 

enacted. See S. Rep. 90-1097, at 191 (1968) (statement of Sen. Tydings) (“The President, 

the Attorney General, the Director of the FBI, the President’s Commission on Law 

Enforcement and the Administration of Justice, the International Association of Chiefs of 

Police, the American Bar Association, and state and local law enforcement officials all 

across the country have recommended federal firearms control legislation much more 

stringent than Title IV[, the provisions of the Crime Control and Safe Streets Act that barred 

those under 21 from purchasing handguns from federally licensed dealers,] provides.”). 

Further, as the majority notes, “[l]aw enforcement officers from New York City, 

Los Angeles, St. Louis, Chicago, Philadelphia, and Atlanta provided Congress with 

statistics documenting the misuse of firearms by juveniles and minors.” Maj. Op. at 5–6 

n.2 (internal quotation marks omitted). For instance, Herbert T. Jenkins, the chief of 

Atlanta’s Police Department, stated that of 404 recent aggravated assaults involving 

firearms in his city, about 93 percent were committed by individuals under the age of 21. 

S. Rep. 89-1866, at 59 (1966) (from Individual Views of Senators Dodd, Bayh, Kennedy 

of Massachusetts, Tydings, Fong, Javits, Smathers, and Long of Missouri). And Chief 

Jenkins further concluded that “[m]ost of these cases would have ended as a simple 

altercation, except for the ready availability of the gun.” Id. (emphasis added). 

Supporters of the enactments believed that limiting youth access to firearms would 

be a particularly effective way to limit violent deaths because keeping guns out of the hands 
115

of young people could keep them from turning to crime or, if they did, could keep them 

from killing anyone while engaging in criminal activity. Notably, contemporary statistics 

showed that 21% of people who were assaulted with a gun died because of the assault, 

compared with just 3% of individuals assaulted with another weapon. 109 Cong. Rec. 

13946 (statement of Sen. Dodd). They also showed that in 1962, “more than 3,200 persons 

met violent deaths by a gun in the hand of a noncriminal.” Id. (emphasis added). 

IRS Commissioner Sheldon Cohen and Attorney General Katzenbach also 

explained the link they saw between firearms, youth, and violence. According to Cohen—

who, as IRS Commissioner, was the executive branch official then responsible for firearm 

regulation19—the “easy availability of weapons” exacerbated the “tendency [of young 

people, juveniles, and young adults] toward wild, and sometimes irrational . . . violent” and 

“deadly” behavior. Federal Firearms Act: Hearings Before the Subcomm. to Investigate 

Juvenile Delinquency of the Sen. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony 

of Commissioner Cohen). Likewise, Attorney General Katzenbach believed that while the 

19 See Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile 

Delinquency of the Sen. Comm. on the Judiciary, 89th Cong. 29–30 (1965) [hereinafter 

Firearms Act: 1965 Hearings] (statement of Hon. Henry H. Fowler, Secretary of the 

Treasury) (explaining that Cohen, as IRS commissioner, was “responsible for the 

administration of the Federal Firearms Act” as the head of the IRS’s Alcohol and Tobacco 

Tax Division, the forerunner to the modern Bureau of Alcohol, Tobacco, Firearms and 

Explosives). Given Cohen’s subject-matter expertise in firearm regulation, the majority’s 

dismissal of his testimony for lack of personal law-enforcement experience cannot hold 

water. We must defer to Congress’s decision to trust someone with such clearly relevant 

credentials instead of conducting a kind of retroactive Daubert analysis. While courts of 

course have an obligation to serve as gatekeepers when it comes to expert testimony cited 

by the parties before us in the course of normal litigation, we also have an obligation to 

show a much greater level of deference when it is a coequal branch who has opted to rely 

on a particular expert when performing its constitutionally assigned duties.
116

gun control measures might only make it “a little harder” for “major criminals” to get guns, 

another purpose of the proposed measures was “to take guns away from people who might 

not otherwise become criminals,” and to ensure that if they did, they would “at least” not 

“use guns to kill somebody in the process.” Ways and Means: 1965 Hearing, at 85 

(emphasis added). 

Senator Dodd echoed the Commissioner and Attorney General’s beliefs that 

keeping guns out of the hands of young adults would increase public safety. He argued: 

Some of the opponents of the bill . . . have also argued that it is not 

guns that kill people, but the criminals behind the guns. And they have further 

argued that, criminals being what they are, they will succeed in obtaining 

weapons despite any laws which we may enact. The basic fallacy in this 

argument is [that] it lumps all gun criminals together in a single criminal 

category. It may be true that the hardened criminal . . . will succeed in 

obtaining weapons no matter what laws we may pass. But the great majority 

of those involved in gun crimes are not professional criminals. They are . . . 

amateur criminals, some of them one-time offenders, some of them “hoppedup” juveniles involved in their first breach of the law. In the case of these 

amateur criminals, it is frequently the weapon that kills rather than the 

criminal himself. The professional criminal—and I have known some, I have 

spent some part of my life in criminal work—will not attempt to hold up an 

old man for the paltry few dollars he may have in his pocket, and then, if he 

encounters any resistance, panic and fire. He does not operate that way. But 

every year there are hundreds of murders perpetrated in precisely this way 

by amateur criminals—by kids, youngsters, and juveniles. . . . The amateur 

criminal [is frequently] a person of inferior intelligence and inferior initiative 

who would find it very difficult to obtain a gun for himself if the law placed 

a few obstacles in his way.

114 Cong. Rec. 12307–08 (1968).20

20 Senator Dodd had intimate, first-hand experience with gun crime. As a special 

agent for the FBI during the 1930s, he partook in a shootout between the G-Men and John 

Dillinger’s gang. Winkler, supra, at 248–49. 
117

Agree or disagree with Senator Dodd’s assessment, there is no denying that it had 

support at the time the challenged provisions were enacted. For instance, Curtis Brostron, 

St. Louis’s Chief of Police, testified that he supported “mak[ing] the acquisition of firearms 

more difficult,” in part because he believed young people would be less tempted to acquire 

weapons and to commit crime if obtaining a firearm were harder. Firearms Act: 1965 

Hearings at 580–81 (statement of Chief Brostron). In short, Congress had ample evidence 

before it that, to truly enhance public safety, it would need to do more than target “major 

criminals” and repeat offenders.

Having identified a specific problem—death and injuries from guns in the hands of 

young people—and a general solution—regulating youth access to firearms—Congress 

then began tailoring a narrow fix. 

First, it focused only on handguns, which it termed “the most formidable and most 

frequently used tool of the criminal.” S. Rep. 89-1866, at 4 (1966). Congress reached this 

conclusion that handguns were uniquely the friend of criminals by relying on two sources 

of evidence: (1) “the existence in many States of laws controlling [handguns]” and (2) 

“statistics showing its dominance as the weapon used in unlawful activities.” Id. First, as 

Congress noted, many states and cities regulated handguns to a “much greater extent” than 

long guns, suggesting a greater fear of their misuse. Id. Second, regarding crime statistics, 

Congress had before it FBI statistics and commentary from Director Hoover that 

“handguns were used in 70 percent of . . . murders committed with firearms” and in most 

armed robberies involving a gun. Id. at 5. Thus, Congress concluded “[f]rom these statistics 
118

[and state and local regulations that] it [was] quite clear that the principal offender in the 

unlawful use of firearms is the handgun.” Id. 

Congress then further connected the broader trends of youth violence and handgun 

violence together by studying the very specific trend of youth violence perpetrated with 

handguns. For instance, in 1964, Senator Dodd’s Senate Subcommittee on Juvenile 

Delinquency learned that from 1960 to 1962, firearms were involved in approximately 

seventy percent of all arrests in New York City of individuals under 21 for four kinds of 

violent felonies and that these firearms were mostly handguns. S. Rep. 88-1340, at 16 

(1964).

Finally, having concluded that public safety could plausibly be addressed by 

regulations targeting youth access to handguns, Congress focused yet more narrowly on 

the specific problem of handguns purchased from federally licensed firearms dealers. See 

NRA, 700 F.3d at 208 (“The legislative record . . . demonstrates that Congress was 

particularly concerned with the [role federally licensed firearm dealers played] in the crime 

problem.”). To this end, Congress heard from IRS Commissioner Cohen, who testified that 

the “misuse of firearms by juveniles” had “reached alarming proportions”; that “[t]he vast 

majority, in fact almost all of these firearms, are put into the hands of juveniles by . . . 

dealers who operate under licenses issued by the Federal Government”; and that “[t]he way 
119

to end this dangerous practice [was] to stop these Federal licensees from selling firearms 

to juveniles.”21 Firearms Act: 1965 Hearings at 67 (statement of Commissioner Cohen).

Thus, in context, Commissioner Cohen’s remarks demonstrate his conclusion that 

the ability of young adults to buy firearms from federally licensed dealers was contributing 

to the nation’s crime problem. Congress agreed, and, combining this conclusion with its 

finding that handguns were the primary weapon of concern, concluded that handguns had 

been “widely sold by federally licensed importers and dealers to emotionally immature, or 

thrill-bent juveniles and minors prone to criminal behavior,” leading to “youthful criminal 

behavior.” Pub. L. No. 90–351, tit. IV, § 901(a)(6). 

To summarize, as the Fifth Circuit found in NRA, “Congress was focused on a 

particular problem: young persons under 21, who are immature and prone to violence, 

easily accessing handguns, which facilitate violent crime, primarily by way of [federally 

licensed dealers].” 700 F.3d at 208. “Accordingly, Congress restricted the ability of young 

persons under 21 to purchase handguns from [federally licensed dealers].” Id. Nothing in 

the majority’s opinion contests that Congress studied this exact issue and agreed on a 

solution designed to solve it. Applying intermediate scrutiny, and not strict scrutiny 

masquerading as such, this ought to be enough. 

Instead, in targeting the chain of conclusions that led Congress to enact the 

challenged provisions, the majority trains its fire on the weakest link: the specific 

21 While Commissioner Cohen did not clarify the exact age group he meant when 

he referred to “juveniles,” these remarks came during his broader endorsement of Senate 

Bill 1592, which, as discussed above, endeavored to prevent individuals under twenty-one 

from purchasing handguns.
120

connection between federally licensed dealers and handgun crime. To be sure, 

Commissioner Cohen’s testimony could have been more robust, and the legislative record 

does lack a study establishing that most guns used by young adults to commit crimes were 

sold to them directly by federally licensed dealers. But, for several reasons, I would not 

find this shortcoming in the record to be fatal to the challenged provisions. 

First, the majority’s exclusive focus on the link between guns sold by federally 

licensed dealers to young adults and crime is too narrow. The legislative history establishes 

that Congress was concerned not just with crime, but also with accidents and suicides. And 

common sense tells us that fewer law-abiding young adults will harm themselves with 

handguns if they cannot purchase them from federally licensed dealers.22

22 The commonsense idea that reducing access to lethal weapons will reduce firearm 

accidents and suicides is also supported by the scientific literature. See, e.g., Matthew 

Miller et al., Firearm Availability and Unintentional Firearm Deaths, 33 Accident 

Analysis & Prevention 477, 479–480 (2001) (finding that “children and adults, men and 

women, and members of all racial groups were significantly more likely to die from 

unintentional firearm injuries if they lived in states with more rather than fewer guns,” and 

that this “robust, positive and statistically significant association” between gun availability 

and fatal gun accidents persisted “even after controlling for state level poverty, 

urbanization and regional location”); David M. Studdert et al., Handgun Ownership and 

Suicide in California, 382 New Eng. J. of Med., 2220, 2228 (2020) (“Our study bolsters 

and extends the message from previous research: ready access to firearms, particularly 

handguns, is a major risk factor for suicide.”); Matthew Miller et al., Suicide Mortality in 

The United States: The Importance of Attending to Method in Understanding PopulationLevel Disparities in the Burden of Suicide, 33 Ann. Rev. of Pub. Health 393, 397, 401–03 

(2012) (providing figures that establish that in 2001, approximately 84.9% of suicide-byfirearm attempts in America were fatal compared with just 4.1% of all non-firearm attempts 

and discussing the “potential for reducing the population-level suicide burden by reducing 

population-level access to lethal means”). 

A recent study following more than 26 million Californians over the age of 21 for 

up to 12 years dramatically illustrates this relationship between access to firearms and 

suicide. It found that despite having “lower rates of all-cause mortality than nonowners,” 
121

Second, the challenged provisions aimed to prevent crime not just by keeping 

handguns out of the hands of hardened criminals, but also by making it somewhat harder 

for law-abiding young adults to obtain handguns and to then turn, gun in hand, to crime in 

the first place. The majority’s statistics on the percentages of gun crimes committed with 

legally purchased weapons do not address these potential crimes that may have been 

prevented by the challenged provisions. Such potential crimes are easy to imagine when 

we consider Congress’s findings on the impulsivity and hotheadedness of youth. Thus, 

even assuming that relatively few young adults commit a gun crime with a handgun they 

purchased directly from a federally licensed dealer, it was reasonable for Congress to 

believe that the challenged provisions could help reduce gun crime. 

Third, it is important to remember what we are supposed to be doing here: 

“weighing a legislative judgment, not evidence in a criminal trial” or even an agency’s 

record in an administrative proceeding. Pena v. Lindley, 898 F.3d 969, 979 (9th Cir. 2018) 

(explaining the proper application of intermediate scrutiny to a Second Amendment 

challenge). When Congress enacts a statute, it “is not obligated . . . to make a record of the 

handgun owners committed suicide at much higher rates than nonowners. Studdert, supra,

at 2220, 2224. Specifically, from 2004 to 2016, male handgun owners committed suicide 

at a rate three times higher than male nonowners, and female handgun owners took their 

lives at a rate seven times higher than female nonowners. Id. at 2224. These differential 

rates were “attributable to much higher rates of suicide by firearm,” not to “higher rates of 

suicide by other methods.” Id. at 2224, 2226. While these precise numbers could 

theoretically prove unique to California, or to those over age 21, we also know that suicide 

attempts “are often impulsive acts, driven by transient life crises,” and that “most people 

who attempt suicide do not go on to die in a future suicide.” Id. at 2221. It therefore stands 

to reason that reducing access to firearms—which are extremely effective as a means of 

death—will reduce suicides. See id. 
122

type that an administrative agency or court does to accommodate judicial review,” even as 

to constitutional issues. Satellite Broad. & Commc’ns Ass’n, 275 F.3d at 358 (quoting 

Turner, 512 U.S. at 666 (plurality opinion)) (First Amendment case). Thus, when 

considering legislative judgments to determine if an enactment survives intermediate 

scrutiny, not only do we defer to the policy judgments of the legislature, we also “allow 

[the government] to rely on any material ‘reasonably believed to be relevant’ to substantiate 

its interests.” Mai, 952 F.3d at 1118 (alteration in original) (quoting Pena, 898 F.3d at 979) 

(discussing judicial review of congressionally enacted gun control measure). 

Commissioner Cohen’s testimony regarding federally licensed dealers surely meets that 

standard.

Plus, as noted, the “quantum of empirical evidence needed to satisfy heightened 

judicial scrutiny of legislative judgments will vary up or down with the novelty and 

plausibility of the justification raised.” Nixon, 528 U.S. at 391. And where the justifications 

offered by Congress are “both familiar and plausible,” they need only be supported by 

“minimal” empirical evidence. Carter, 669 F.3d at 418 (quoting Satellite Broad. & 

Commc’ns Ass’n, 275 F.3d at 360). 

Here, it is undeniable that the justifications Congress offered for enacting the 

challenged provisions were both familiar and plausible to the legislators who passed the 

bills and to the voters that elected them. That’s why proponents of the measures made 
123

repeated appeals to common sense in pushing for their passage23 and why the enactments 

had such broad-based public support.24 As such, the provisions need only be supported by 

minimal empirical evidence, a bar they easily clear.

Finally, even if I thought that Congress did not sufficiently show its work back in 

1968 by justifying the challenged provisions through detailed studies of the public-safety 

impacts of preventing young adults from buying handguns from federally licensed 

dealers—which I do not—I still would not find the absence of such studies to cut decisively 

against the government in our intermediate-scrutiny inquiry. To do so would be profoundly 

anachronistic. As the Third Circuit noted in Drake, legislatures contemplating gun control 

measures pre-Heller can hardly have been expected to “muster . . . reports, statistical 

information, and other studies” to fortify their bills against Second Amendment challenges 

23 See, e.g., Firearms Act: 1965 Hearings at 32 (statement of Secretary Fowler) (“I 

think it is self-evident that minors [under age 21] should not have access to pistols [or] 

other concealable firearms and weapons of vast destructive power . . . .”); Ways and Means: 

1965 Hearing at 28 (statement of Hon. Joseph W. Barr, Undersecretary of the Treasury) 

(making the same statement); 114 Cong. Rec. 13643 (1968) (statement of Sen. Dodd) (“[I]t 

is simply common[ ]sense not to allow federally licensed dealers to dispense weapons of 

death to the young and immature. Unless they are properly supervised, firearms in the 

hands of juveniles can result in great tragedy. There are scores of thousands of tragedies in 

the police files of our country to attest to this.”).

24 Polling from the spring of 1968 showed that Americans favored “strict control 

over the sale of firearms by 71 to 23 percent” and that gun owners favored such controls 

by 65 to 31 percent. S. Rep. 90-1097, at 184 (individual views of Senator Fong) (discussing 

a Harris Poll from April 22, 1968 and contending that it represented Congress’s “clear 

mandate from the people” to expand Title IV to include long guns in addition to handguns). 

This popular support translated into endorsements for the enacted measures from all walks 

of American life. See, e.g., 114 Cong. Rec. at 12314–16 (1968) (statement of Sen. Dodd) 

(documenting support for the challenged provisions from, among others, the American Bar 

Association, the AFL-CIO, civil rights leader Roy Wilkins, and the General Federation of 

Women’s Clubs, “the parent organization of some 15,000 women’s clubs”). 
124

when the Supreme Court had not yet taught us that the Second Amendment protected an 

individual right to bear arms. 724 F.3d at 437–38; see also Dearth v. Lynch, 791 F.3d 32, 

49 (D.C. Cir. 2015) (Henderson, J., dissenting) (“The plaintiffs also fault the Government 

for submitting what is admittedly a sparse evidentiary record demonstrating the Congress’s 

rationale for applying the ban on receipt of firearms to non-resident citizens. It is hardly 

surprising that the Government is not able to offer more because the provisions at issue 

here were enacted in 1968 and 1994—long before the individual-right view of the Second 

Amendment became the law of the land.” (internal citation omitted)). So too here.

In conclusion, the legislative history of the challenged provisions illustrates that 

Congress studied a very specific problem—threats to public safety caused by youth access 

to handguns purchased from federally licensed dealers—and aimed to address that exact 

problem through the challenged provisions. This evidence strongly supports holding that 

the challenged provisions are a reasonable fit for the government’s compelling interest in 

public safety. 

iii. The challenged provisions are supported by modern scientific research 

Beyond the evidence cited in the legislative history and common sense, Congress’s 

decision to restrict the ability of young adults aged 18 to 20 to purchase handguns from 

federally licensed dealers is also supported by more recent scientific research showing that 

the youngest adults, as a group, are decidedly less mature than other adults—even those 
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just a few years older.25 See Carter, 669 F.3d at 418 (explaining that courts can consider 

“empirical evidence” in assessing the fit between a government’s interest and its 

enactment). 

Importantly, the majority does not question the accuracy of this body of research. 

This is a wise decision given that courts around the country have looked to similar scientific 

evidence to uphold age-based restrictions on Second Amendment rights. See NRA, 700 

F.3d at 210 n.21 (concluding that “Congress’s finding that minors under 21 are prone to 

violent crime, especially with guns-in-hand,” the very finding at issue here, was entitled to 

deference and was otherwise supported by modern scientific research on the impulsivity of 

young adults); Horsley v. Trame, 808 F.3d 1126, 1127, 1133 (7th Cir. 2015) (finding that 

“scholarly research on development through early adulthood” supported the 

constitutionality of an Illinois measure that prevented those under 21 from possessing a 

firearm without the approval of their parents or the Director of State Police); Mitchell v. 

Atkins, 483 F. Supp. 3d 985, 990, 995–96 (W.D. Wa. 2020) (relying in part on research 

“show[ing] that 18- to 20-year-olds are developmentally immature compared with older 

25 While the government has not put forward all the scientific evidence and crime 

and accident statistics I discuss, the amici in this case introduced similar evidence before 

the district court, and—like other courts—the district court explicitly relied on that 

evidence. See Maj. Op. at 62–63 n.57 (“[T]he amici’s arguments here were raised and 

adopted by the district court, and some of their evidence is in the record.”); Hirschfeld v. 

BATFE, 417 F. Supp. 3d 747, 759 (W.D. Va. 2019) (district court below finding that “the 

Amici parties highlight substantial evidence supporting Congress’s decision to draw the 

line at age 21”); NRA, 700 F.3d at 210 n.21 (relying on sources cited by amici in a separate 

case to uphold the same provisions at issue here). These facts mitigate any concern about 

considering arguments put forward on appeal by the amici.
126

adults” to uphold the constitutionality of a Washington law barring adults under 21 from 

purchasing semiautomatic rifles).

 As surely as “any parent knows” that children are less mature and responsible than 

adults, Roper v. Simmons, 543 U.S. 551, 569 (2005), so too does any older adult know that 

late adolescence or early adulthood is a distinct and often more chaotic season of life than 

the ages that follow, cf. Jeffrey Arnett, Reckless Behavior in Adolescence: A 

Developmental Perspective, 12 Developmental Rev. 339, 339–40 (1992) (defining 

American adolescence as “extending from puberty to the early 20’s” and explaining that 

“[a]dolescence bears a heightened potential for recklessness compared to other 

developmental periods in every culture and in every time”). 

But I need not rest on the wisdom of age to substantiate this difference between the 

youngest adults and older adults, for it is well-established in the scientific literature. We 

now know, for example, that while “a 19-year-old might possess a brain that looks ‘adultlike’ and that supports mature cognitive performance under calm or ‘neutral’ conditions, 

that same brain tends to look much more like that of a younger kid when evocative 

emotions are triggered, resulting in significantly weaker cognitive performance.” Jason 

Chein, Adolescent Brain Immaturity Makes Pending Execution Inappropriate, Bloomberg 

Law (Sept. 17, 2020 4:00 AM), https://www.bloomberglaw.com/bloomberglawnews/uslaw-week/XBBCKGKK000000; see also, e.g., Adam Ortiz, Juvenile Justice Ctr., Am. Bar 

Ass’n, Cruel and Unusual Punishment: The Juvenile Death Penalty; Adolescence, Brain 

Development and Legal Culpability, 2 (Jan. 2004) (“The evidence now is strong that the 

brain does not cease to mature until the early 20s in those relevant parts that govern 
127

impulsivity, judgment, planning for the future, foresight of consequences, and other 

characteristics that make people morally culpable . . . . Indeed, age 21 or 22 would be closer 

to the ‘biological’ age of maturity.” (quoting declaration of Dr. Ruben Gur of the 

University of Pennsylvania Medical Center)). 

Furthermore, modern research also instructs that the prefrontal cortex, the part of 

the brain that makes it possible to “exercise good judgment when presented with difficult 

life situations,” does not finish maturing until age 25. J.A. 346, 352 (reprinting Mariam 

Arain et al., Maturation of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment 

449, 453, 459 (2013)); see also United States v. Ramsay, ---F. Supp. 3d---, 2021 WL 

1877963, at *9 (S.D.N.Y. May 11, 2021) (Rakoff, J.) (surveying the literature on 

“psychosocial maturity—the capacity to exercise self-restraint, especially in emotionallyarousing contexts,” and noting that this kind of maturity “continues to mature throughout 

the teens and into the twenties,” perhaps even to age 30 (cleaned up)). 

The upshot of these findings is that in precisely the situations where violence is most 

likely—that is, emotionally evocative situations or situations requiring the intense 

weighing of the exigencies of the moment against future consequences—young adults think 

more like children than they do like older adults. See Daniel W. Webster et al., John 

Hopkins Ctr. for Gun Policy and Research, Firearms on College Campuses: Research 

Evidence and Policy Implications (Oct. 15, 2016), at 19 (explaining that “[g]uns may be 
128

called on in the very situations in which adolescents are most developmentally 

vulnerable”).26

In short, as the Fifth Circuit has already concluded in its study of this exact issue,

“modern scientific research supports the commonsense notion that 18-to-20-year-olds tend 

to be [less mature] than young adults aged 21 and over.” NRA, 700 F.3d at 210 n.21. I 

would therefore join the courts around the country that have held that this science buttresses 

reasonable restrictions on the gun rights of minors and young adults. 

iv. The challenged provisions are supported by crime and accident statistics 

Based on the most up-to-date scientific evidence, therefore, we should expect 

that young adults are more likely to be involved in violent crime than older adults, given 

their biological immaturity. It is thus completely unsurprising that abundant modern 

evidence shows that young adults in fact perpetrate more violent crime generally and more 

26 The phenomenon of young adults under twenty-one thinking and behaving more 

like children than they do like older adults is also well-established in legal scholarship, 

much of which has focused on questioning whether the death penalty is appropriate for 

those whose crimes were committed as children or young adults. See, e.g., John H. Blume 

et al., Essay, Death By Numbers: Why Evolving Standards Compel Extending Roper’s 

Categorical Ban Against Executing Juveniles from Eighteen to Twenty-One, 98 Tex. L. 

Rev. 921, 930–35 (2020); Andrew Michaels, A Decent Proposal: Exempting Eighteen-toTwenty-Year-Olds From the Death Penalty, 40 N.Y.U. Rev. L. & Soc. Change, 139, 161–

67 (2016); Melissa S. Caulum, Comment, Postadolescent Brain Development: A

Disconnect Between Neuroscience, Emerging Adults, and the Corrections System, 2007 

Wis. L. Rev. 729, 731–33 (2007); Tirza A. Mullin, Note, Eighteen Is Not A Magic Number: 

Why The Eighth Amendment Requires Protection for Youth Aged Eighteen to Twenty-Five, 

53 Mich. J.L. Reform, 807, 812–16 (2020); Zoe Jordan, Note, The Roper Extension: A 

California Perspective, 71 Hastings L.J. 197, 206–210 (2019).
129

firearm crime specifically than do older adults.27 In fact, according to an analysis of FBI 

supplementary homicide reports conducted by amicus Everytown for Gun Safety, from 

2013 to 2017, young adults aged 18 to 20 “commit[ted] gun homicides at a rate nearly four 

times higher than adults 21 and older.” Everytown for Gun Safety Analysis, Uniform Crime 

Reporting Program: Supplementary Homicide Reports (SHR) 2013–2017 (2018)

(emphasis added), https://everytownresearch.org/stat/eighteen-to-20-year-olds-commitgun-homicides-at-a-rate-nearly-four-times-higher-than-adults-21-and-older/; see also Br. 

for Amicus Curiae Brady at 11 (quoting Everytown for Gun Safety, Concealed Carry 

Reciprocity: Overriding State Public Safety Laws (June 25, 2018), 

https://everytownresearch.org/report/concealed-carry-reciprocity-overriding-state-publicsafety-laws/ (same)). 

27 See, e.g., Off. of Juvenile Just. & Delinquency Prevention, U.S. Dep’t of Justice, 

Arrest Rates by Offense and Age Group 2019, 

https://www.ojjdp.gov/ojstatbb/crime/ucr.asp?table_in=1&selYrs=2019&rdoGroups=1&r

doData=r (documenting that in 2019, Americans aged 18 to 20 committed 320.8 violent 

crimes per 100,000 individuals, compared with rates of 167.3 per 100,000 for all 

individuals 18 and older and 145.2 per 100,000 for all individuals 25 and older); NRA, 700 

F.3d at 210 (“In 2009, 18-to-20 year-olds accounted for over 19% of all murder and nonnegligent manslaughter arrests, 14% of all arrests for forcible rape, almost 24% of all 

robbery arrests, and 12% of all aggravated assault arrests . . . even though they comprised 

only about 4.3% of the population.”); Horsley, 808 F.3d at 1133 (“An FBI analysis of crime 

in 2014 reflects that 18-to-20-year-olds were responsible for more than 15.8% of all 

charges issued for murder and nonnegligent manslaughter,” despite comprising just “5.4% 

of the population over the age of 14.”); Mitchell, 483 F. Supp. 3d at 996 (noting that young 

adults age 18 to 20 account “for approximately one-quarter of firearm homicides 

committed where an offender was identified” and that “[a]rrest rates for murder, robbery, 

and other violent crimes peak around ages 17 to 20”); Powell, 926 F. Supp. 2d at 392–93 

(citing a 2011 survey conducted by the FBI and the DOJ finding that “eighteen- to twentyyear-olds accounted for approximately 16.6% of all arrests made for weapons offenses” 

despite comprising “only about 4.3% of the national population”).
130

Nor is the connection between age and firearm injuries limited to intentional 

violence. It also appears that young adults are much more likely to die in a gun accident 

than older adults are. See Sarah J. Solnick and David Hemenway, Unintentional Firearm 

Deaths in the United States 2005–2015, Inj. Epidemiology, 6:42 at 3–4 (2019) (finding in 

a survey of 16 states that “children and teens, ages 10 to 19” and “young adults, aged 20 to 

29” are at an elevated risk of dying in a gun accident with “[a]ll other age groups hav[ing] 

a markedly lower rate” of accidental deaths). 

These statistics “give credence to the notions that young adults’ access to firearms 

is an issue of significant governmental concern and that there is a close fit between this 

concern and the [challenged provisions].” Powell, 926 F. Supp. 2d at 393 (finding that 

crime statistics supported the constitutionality of an age-based restriction on carrying 

firearms). Thus, I would treat these crime and accident statistics, like the modern scientific 

research on the biological immaturity of young adults, as yet more evidence confirming 

the reasonableness of the challenged provisions.

v. The challenged provisions are supported by state enactments 

Finally, when considering whether the challenged provisions are a reasonable fit for 

Congress’s interest in promoting public safety, I find it highly relevant that “all fifty states 

in the Union, as well as the District of Columbia, feature laws imposing age-based 

restrictions [on] firearms, and [that] many of these laws set the minimum age for the 

possession and use of firearms at twenty-one.” Id. at 387. Specifically, at least twenty-one 
131

states and the District of Columbia regulate, and often prohibit altogether, the sale of 

handguns to or the purchase of such guns by individuals under twenty-one.28

While state legislatures cannot determine the parameters of constitutional rights, the 

fact that many states currently agree with Congress on the need to regulate young adults’ 

access to handguns speaks to the ongoing reasonableness of the actions Congress took back 

in 1968. In other words, courts may look to the ubiquity of state-level restrictions in 

determining the reasonableness of a challenged provision’s fit, and thus its 

constitutionality. See, e.g., United States v. Yancey, 621 F.3d 681, 683–84 (7th Cir. 2010) 

(per curiam) (finding that state-level restrictions on the ability of habitual drug users to 

possess firearms supported the constitutionality of 18 U.S.C. § 922(g)(3)’s federal ban on 

firearm possession by drug addicts, as such restrictions demonstrated that “Congress was 

not alone in concluding that habitual drug abusers are unfit to possess firearms”). 

*** 

To summarize: Congress had a compelling interest in promoting public safety and 

the challenged provisions are a reasonable fit for that objective. The reasonableness of the 

fit is abundantly illustrated by the legislative text and history, scientific research, crime and 

28 See Cal. Penal Code § 27505; Conn. Gen. Stat. § 29-34(b); D.C. Code § 22-4507; 

Del. Code tit. 24, §§ 901, 903; Fla. Stat. § 790.065(13); Haw. Rev. Stat. § 134-2(d); 430 

Ill. Comp. Stat. 65/3(a), 65/4(a)(2)(i-5); Iowa Code § 724.22(2); Md. Code, Pub. Safety 

§ 5-134(b)(1); Mass. Gen. Laws ch. 140, § 130; Mich. Comp. Laws § 28.422(1), (3); Mo. 

Rev. Stat. § 571.080; Neb. Rev. Stat. §§ 69-2403, 69-2404; N.J. Stat. § 2C:58-3(c)(4).; 

N.Y. Penal Law 400.00(1); Ohio Rev. Code Ann. § 2923.21; 11 R.I. Gen. Laws § 11-47-

37; Vt. Stat. Ann. tit. 13 § 4020; Wash. Rev. Code § 9.41.240(1); W. Va. Code § 61-7-

10(c); Wyo. Stat. Ann. § 6-8-404(d).
132

accident statistics, and contemporary state laws, all of which show that Congress 

reasonably believed it could reduce gun harm by enacting the challenged provisions. 

D.

The majority, of course, disagrees. Its disagreement is rooted in three arguments. 

First, as discussed above, the majority believes that Congress did not adequately document 

the link between handguns sold by federally licensed dealers and crime. Second, the 

majority contends that the challenged provisions are impermissibly overinclusive—that “a 

showing of disproportionate bad conduct by a group cannot justify categorical restrictions 

on rights when the percentage of the group engaged in the unwanted conduct is minuscule.” 

Maj. Op. at 65. Third, the majority contends that the challenged provisions are 

impermissible because “it is unclear whether these laws have been effective at all.” Id. at 

81. 

I believe these arguments are misguided and do not justify concluding that the 

challenged provisions fail intermediate scrutiny. Having addressed the majority’s first 

argument above, I will now address its remaining two.

i. The challenged provisions are not impermissibly overinclusive 

The majority’s over-inclusiveness analysis is guided by the Supreme Court’s 

decision in Craig v. Boren, 429 U.S. 190 (1976). According to the majority, “just as sex 

was a poor proxy for drunk driving in Craig,” so too is age “a poor proxy for gun violence 

in this case.” Maj. Op. at 67. While Craig undeniably supports the unremarkable idea that 

overinclusive enactments may lack the reasonable fit we demand under intermediate 
133

scrutiny, the majority’s comparison of this matter to Craig suffers from at least four 

problems that substantially reduce its relevance to this case.

First and most fundamentally, the majority attempts to calcify the “flexible” world 

of intermediate scrutiny into a rigid statistical framework. Heller III, 801 F.3d at 282–83 

(Henderson, J., concurring in part and dissenting in part) (“Intermediate scrutiny is a 

flexible framework that allows for different perspectives and a range of approaches to 

firearms regulation.”); see also Kolbe, 849 F.3d at 133 (explaining that intermediate 

scrutiny is “less onerous” than strict scrutiny, requiring only a reasonable fit with a 

substantial governmental interest). According to the majority, because less than one percent 

of all young adults commit a violent crime in any given year, the challenged provisions fail 

the “unduly tenuous threshold” of 2 percent supposedly established by Craig. Maj. Op. at 

71. 

But nothing in Craig purported to establish a roving two-percent threshold 

applicable to all contexts in which courts might apply intermediate scrutiny, and I am 

unaware of a case in the Fourth Circuit or anywhere else treating it as having done so. 

Rather, our circuit precedent on the Second Amendment rejects such efforts to establish 

hard and fast statistical rules for determining whether an enactment is a reasonable fit for 

furthering an important government interest. See Carter, 750 F.3d at 468–69 & n.15 

(explaining that Congress is free to regulate based on correlation evidence and that while 

“[s]cientists may insist on p-values of 0.05,” Congress “is not so constrained”). 

Second, any statistical comparison between Craig and the instant matter is muddied 

by the fact that violent crime is nearly 100 hundred times less common than drinking and 
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driving.29 The majority believes that “[t]he question is . . . the percentage of the group that 

uses a gun in an impermissible manner.” Maj. Op. at 71. According to the majority, “[t]hat 

statistic gives us some insight into the likelihood that any one person in the group will use 

a gun improperly.” Id. So, the majority reasons, because the percentage of young adults 

that will misuse a gun in any given year is less than two percent—which, remember, is just 

the percentage of young men arrested for drunk driving in Oklahoma at one point in the 

1970s—the connection between youth and gun violence is “unduly tenuous [under the] 

threshold from Craig.” Id. 

This approach might make more sense if drinking and driving and gun violence 

were equally common. But in reality, the percentage of young adults that commit a gun

crime in any given year is below two percent because gun violence, blessedly, is much 

rarer than drinking and driving. That alone tells us nothing about the reasonableness of 

regulating youth access to firearms.

To illustrate this point, consider two extreme examples. Suppose some high 

percentage of all people, say 80%, will engage in some infraction in a given year. Well, 

then, a statistic that only 2% of a specific subset of people will commit that infraction 

means not only that they rarely engage in that behavior, but also that they are far less likely 

29 There are approximately “111 million self-reported episodes of alcohol-impaired 

driving among U.S. adults each year.” Impaired Driving: Get the Facts, Ctrs. for Disease 

Control & Prevention, https://www.cdc.gov/transportationsafety/impaired_driving/ 

impaired-drv_factsheet.html. In contrast, there were approximately 1.2 million violent 

crimes committed in the United States in 2019. Federal Bureau of Investigation, 2019: 

Crime in the United States, https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-

2019/tables/table-1. 
135

than the average person to do so. Now suppose that only 0.00000001% of all people will 

engage in the infraction in a given year. Under this new hypothetical, the fact that 2% of a 

specific subset of people engages in that behavior takes on a very different meaning: it 

might still be rare among that subset, but they are far more likely than the average person 

to engage in the behavior. Governmental regulation of the subset is exponentially more 

justifiable in the second case than in the first, even though the 2% figure remained constant, 

because of the difference in frequency of the infraction in the overall population.

In other words, by plucking the two-percent statistic from a specific factual context 

and plopping it down in a very different one, the majority erroneously justifies striking 

down a long-established Congressional enactment. Craig mandates no such judicial 

immodesty. 

Third, Craig and the instant matter involve two very different kinds of 

classification—one is based on gender, the other on age. We treat classifications based on 

gender with suspicion because gender “generally provides no sensible ground for 

differential treatment,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985), 

and because such classifications are generally rooted “in our Nation’s ‘long and 

unfortunate history of sex discrimination,’” Wilcox v. Lyons, 970 F.3d 452, 459 (4th Cir. 

2020) (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion)). 

Meanwhile, age is not a suspect classification at all. Kimel v. Fla. Bd. of Regents, 528 U.S. 

62, 83 (2000); see also Am. Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707, 

711–12, 722–23 (4th Cir. 2018) (applying rational-basis review to equal protection 

challenge to city law barring 18- to 21-year-olds from owning “sexually oriented 
136

businesses”). The restriction at issue in Craig was therefore repugnant to the nation’s 

commitment to equal protection in a way the challenged provisions in this case are not. See 

Craig, 429 U.S. at 204, 208 n.22 (arguing that “proving broad sociological propositions by 

statistics” was “in tension with the normative philosophy that underlies the Equal 

Protection Clause”).30

Finally, even assuming that Craig is relevant here, the majority’s calculations still 

have a numerator problem. The majority estimates that approximately 0.3% of young 

adults aged 18 to 20 commit a violent crime each year. Because that figure is below the socalled Craig threshold, the majority concludes that the challenged provisions are over30 The majority wonders whether “the Second Amendment rights of men can be 

categorically restricted” because they commit more crimes than women. Maj. Op. at 70. 

To state the obvious, any such enactment would face major Second Amendment and Equal 

Protection Clause problems not faced by the challenged provisions. For a start, sex is 

generally immutable, meaning that any restriction placed on male access to firearms would 

be permanent for most people and therefore a much greater infringement on gun rights than 

the temporary provisions at issue here. Any such restriction would also run straight into an 

equal-protection problem not raised by classifying on the basis of the non-protected status 

of age. This hypothetical is hardly a checkmate. 

The majority also wonders about restrictions for “those living in . . . specific 

geographic location[s]” and restrictions on those under age 25. Maj. Op. at 70–71. Our 

analysis of any such regulation would turn on the specifics of the enactment. Any such 

assessment would be highly fact-bound and is therefore not suited for abstract and 

speculative discussion. With that said, municipalities can enact their own firearm 

regulations, and some commentators believe that local conditions should be permitted to 

play a role in assessing the constitutionality of those provisions. See, e.g., Joseph Blocker, 

Firearm Localism, 123 Yale L.J. 82, 85 (2013) (arguing that Second Amendment 

jurisprudence “should incorporate the longstanding and sensible differences regarding 

guns and gun control in rural and urban areas, giving more protection to gun rights in rural 

areas and more leeway to gun regulation in cities”). As for any aged-based regulation 

applying to individuals under twenty-five, the same forces that make armed young adults 

under twenty-one unique threats to the safety of themselves and others may indeed extend 

later into those young adults’ twenties. But we have no cause to address that matter today. 
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inclusive. But this exclusive focus on the percentage of young adults that commit a violent 

crime each year is too narrow.

As discussed above, while the challenged provisions were aimed primarily at 

reducing violent crime, they also aspired to promote public safety by targeting deaths and 

injuries from suicides and accidents. While exact numbers are difficult to come by, it 

appears that each year, hundreds, if not thousands, of Americans aged 18 to 20 are 

accidentally injured in handgun accidents or intentionally harm themselves with a 

handgun.31 These figures for accidents and suicides, while not large enough to get above 

the Craig “threshold,” should still be included in any over-inclusivity analysis as Congress 

aimed to promote public safety by reducing both gun crime and other forms of gun harm. 

Similarly, any proper comparison of this case to Craig would have to factor in the number 

31 It can be estimated that about 900 Americans aged 18 to 20 are injured by 

handguns each year, either unintentionally or through self-harm. I derive this estimate from 

figures provided by Victor Lee et al., Emergency Department Visits for Firearm-Related 

Injuries Among Youth in the United States, 2006–2015, 48 J. L., Med. & Ethics 67, 70 

(2020). The study found that in the 18 to 20 cohort between 2006 and 2015, 36,780 

individuals reported to a hospital emergency room for unintentional firearm injury and 

2,399 reported for firearm injury caused by a suicide attempt or self-harm. Id. The study 

further reported that handguns were involved in 23 percent of all injuries this age cohort 

sustained over this period, with the categories “other” and “unspecified” accounting for 

70.9 percent of injuries, and shotguns, hunting, and military firearms making up the 

remaining 6.2 percent of injuries. Id. I then assumed that because handguns were used in 

23 percent of all injuries for this cohort, they were used in 23 percent of injuries caused 

unintentionally or through self-harm. I then calculated ((36,780 + 2,399) x 0.23) / 10 (the 

years of the study) for a total of 901.1 handgun injuries per year from accidents and selfharm. While it could be that handguns are involved in less than 23 percent of such injuries 

to this cohort, which would inflate my estimate, there are deflationary pressures on my 

estimate as well—namely, the classification of a huge majority of guns as “other” or 

“unknown” and the fact that not all individuals injured by a firearm go to the emergency 

room. 
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of individuals who, as a result of the challenged provisions being in effect, never purchased 

handguns and thus never harmed themselves or others with a handgun. This number is also 

missing from the majority’s calculations.32

In light of all these issues with comparing this case to Craig, I cannot agree that 

Craig renders the challenged provisions unconstitutionally overbroad in violation of the 

Second Amendment. 

ii. The purported ineffectiveness of the challenged provisions does not render 

them unconstitutional 

 

The majority also argues that the challenged provisions “lack the reasonable fit 

required to pass intermediate scrutiny” because they are ineffective at reducing youth crime 

rates. Maj. Op. 78–82. Relatedly, the majority argues that the law is underinclusive, 

meaning that it is ineffective or at least not as effective as it could be. Thus, according to 

the majority, Congress did not do enough to combat harm caused by guns, and what it did 

do was too ineffective—and maybe even counterproductive—to be allowed. This approach 

is strongly misguided for at least four reasons. 

First, it forgets that the Second Amendment is an area in which we owe substantial 

deference to the judgments of Congress. Congress’s judgment that enacting the challenged 

32 While there is evidence to suggest that the challenged provisions reduce gun harm 

in the form of crime, accidents, and suicides, Craig did not establish that the Oklahoma 

laws at issue reduced drunk driving. See 429 U.S. at 202 n.14 (noting the apparent “futility 

of controlling driving behavior by the 3.2% beer statute” and that the Court “obviously 

ha[d] no means of estimating how many individuals, if any, actually were prevented from 

drinking by these laws”). 
139

provisions would promote public safety is “precisely the type of judgment that legislatures 

are allowed to make without second-guessing by a court.” Kolbe, 849 F.3d at 140. 

Second, it unfairly punishes Congress for not passing a more restrictive measure 

and thus violates the standard principle that “a statute is not invalid under the Constitution 

because it might have gone farther than it did.” NRA, 700 F.3d at 211 (quoting Buckley v. 

Valeo, 424 U.S. 1, 105 (1976) (per curiam)); see also N.Y. State Rifle & Pistol Ass’n, 804 

F.3d at 263 (“[G]un-control legislation ‘need not strike at all evils at the same time’ to be 

constitutional.” (quoting NRA, 700 F.3d at 211)); Mance v. Sessions, 896 F.3d 699, 701, 

704, 708–09 (5th Cir. 2018) (per curiam) (holding that federal laws preventing federally 

licensed dealers from directly selling handguns to out-of-state buyers survived strict 

scrutiny despite their underinclusivity, as governments “need not address all aspects of a 

problem in one fell swoop” (quoting Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 

(2015))). 

Third, as the majority recognizes, it “[is] difficult to determine the effectiveness of 

these laws now.” Maj. Op. at 81. Given this conceded uncertainty, I would not have this 

Court stray far beyond its area of expertise to strike down a long-established law because 

of its perceived ineffectiveness. Cf. United States v. Masciandaro, 638 F.3d 458, 475–76 

(4th Cir. 2011) (“We do not wish to be even minutely responsible for some unspeakably 

tragic act of mayhem because in the peace of our judicial chambers we miscalculated as 

to Second Amendment rights. . . . If ever there was an occasion for restraint, this would 

seem to be it.” (emphasis added)).
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Fourth, courts should be especially hesitant to hold gun control measures 

unconstitutional due to their perceived infectiveness, because doing so will place the nation 

and its lawmakers in a formidable catch-22: pass too onerous a regulation and see it struck 

down for violating the Second Amendment; pass too permissive a measure and suffer the 

same result. This heads-I-win, tails-you-lose approach is a recipe for national inaction on 

gun violence. While the people are free to choose that course, it ought not be imposed from 

on high by us.33

33 This would be a particularly perverse and heartbreaking result here given the 

widespread belief back in 1968 that far stronger legislative action was needed to curb gun 

violence. The challenged provisions are a very modest effort at gun control. See Winkler, 

supra, at 253 (“In an era that would become known for the aggressive, bold federal 

legislation enacted to combat a variety of social ills . . . the gun control laws of 1968 were 

notable for their timidity.”). Indeed, they have been recognized as cautious measures since 

before their birth. While the provisions were still being debated, Senator Joseph Tydings 

of Maryland called Title IV of the Crime Control and Safe Streets Act “a very limited, 

stripped down, bare minimum gun traffic control bill.” 114 Cong. Rec. 13639 (1968) 

(statement of Sen. Tydings). Senator Hiram Fong of Hawaii agreed, stating that the 

challenged provisions and the rest of Title IV were “entirely inadequate” and fell “far short 

of the strong and effective firearms control legislation so urgently required to control

crime.” S. Rep. 90-1097, at 184 (1968) (individual views of Sen. Fong); accord 114 Cong. 

Rec. 12298–99 (1968) (statement of Sen. Fong) (“[The provision barring those under 21 

from purchasing handguns from federally licensed dealers] represents the least Congress 

can do to meet the pressing public interest to protect against unrestricted gun traffic . . . . 

But it is not nearly enough.”). President Johnson echoed the same theme in his signing 

statement, calling the measures a “halfway step toward the protection of our families and 

homes.” 114 Cong. Rec. 18091 (1968) (reprint of statement of President Johnson upon 

signing the Omnibus Crime Control and Safe Streets Act of 1968). In short, many of the 

individuals who helped to enact the challenged provisions wanted to go further but believed 

the provisions were better than nothing. Now, more than fifty years later, the majority 

becomes the first court in the country to strike these measures down, leaving the American 

people with nothing in their place—because the provisions did not go further. The irony is 

bitter.
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I therefore would not usurp the legislative role by invalidating these measures based 

on a judicial assessment that they have not worked.34

III.

The words of our colleague, Judge Wilkinson, bear repeating as a fitting admonition 

for the majority’s decision: “No one really knows what the right answer is with respect to 

the regulation of firearms,” thus, we federal judges ought not “[d]isenfranchis[e] the 

American people on this life and death subject” by arrogating to ourselves “decisions that 

have been historically assigned to other, more democratic, actors.” Kolbe, 849 F.3d at 149–

150 (Wilkinson, J., concurring).

Today, by failing to heed that admonition, the majority fundamentally errs as a 

matter of law. I must, respectfully, dissent. 

34 Having concluded that the challenged provisions violate the Second Amendment, 

the majority does not resolve whether the provisions also discriminate against Marshall 

based on her age in violation of the equal protection guarantee of the Fifth Amendment. 

Because “age is not a suspect classification,” Kimel, 528 U.S. at 83, the government “may 

‘discriminate on the basis of age without offending’ the constitutional guarantee of equal 

protection ‘if the age classification in question is rationally related to a legitimate state 

interest,’” NRA, 700 F.3d at 212 (quoting Kimel, 528 U.S. at 83) (concluding that the 

challenged provisions survived rational-basis review). Because I would hold that the 

challenged provisions survive intermediate scrutiny, I would also, of course, conclude that 

they survive rational-basis review. Therefore, I would hold that Marshall’s Fifth 

Amendment claim fails.