On September 17, the Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum opinion to answer the question “whether restricting young adults from buying firearms comports with the Second Amendment as the Supreme Court has authoritatively construed it.” OLC, focusing specifically on provisions of federal law that criminalize the sale of handguns to adults aged 18 to 20 by federally licensed dealers (FFLs), said “no.” This interpretation marks a sea change in the government’s approach to an issue that has been the subject of decades of litigation, including by NRA, up to the present day. How it plays out practically, however, remains to be seen.
Under federal law, young adults are eligible to possess and acquire handguns, but FFLs are prohibited – under pain of felony penalties and adverse licensing actions – from selling or transferring handguns, as well as handgun ammunition, to those aged 18 to 20. This means these adults are cut off from the primary legal means by which most people acquire their Second Amendment protected handguns. This prohibition, moreover, applies to the entire class of people this age, with no required proof of dangerousness or bad intent. Meanwhile, under federal law and the law of most states, this same population is legally vested with virtually every other right and responsibility of adulthood.
NRA and others have been litigating aged-based restrictions on Second Amendment activity for the last two decades. These actions gained little traction before the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which reaffirmed that when a challenged restriction covers activity within the Second Amendment’s plain text, the government would have to justify the restriction by pointing to a relevantly similar historical tradition dating back to the founding era.
Methodically applying this standard, OLC’s memo correctly concludes that these young adults are part of “the people” and that handguns are among the “arms” protected under the Second Amendment’s plain text. And the keeping of arms, in OLC’s commonsense interpretation, necessarily includes the acquiring of them. The opinion explains:
A prohibition that operates on sellers so as to close the primary market to a class of buyers hinders those buyers’ rights just as a prohibition addressed to the buyers themselves would. If a flat ban on selling to a subset of “the people” evades the Second Amendment simply because it operates through the regulation of dealers, then step by step, other limitations on sales could easily displace the right altogether. [Internal quotation marks omitted.]
OLC then considered several possible historical analogues before concluding that none of them established the sort of legal tradition Bruen requires to overcome a presumptive infringement on Second Amendment rights. Taking into account the modern convention of treating 18-to-20-year-olds as legal adults, no historical practice imposed as sweeping an infringement on their access to Second Amendment arms as the federal laws at issue. Indeed, the more common tradition of the founding era was to require, beginning at age 18, militia enrollment and for those enrolled in the militia to muster for service with their own privately acquired arms.
Continuing into the present day, it is inconsistent, to say the least, to arm members of the military and law enforcement of these same ages with all manner of sophisticated weaponry and then prohibit these same individuals, in their private capacity, from buying what the U.S. Supreme Court has called the “quintessential” self-defense firearm. It is also incongruous that an 18-year-old could be charged as an adult for committing a handgun related crime, but that same 18-year-old could not acquire a handgun at a gun shop for protection against such an offense.
OLC’s opinion concludes that criminally charging dealers who sell or transfer handguns to otherwise eligible adults aged 18 to 20 would violate the Second Amendment. But that conclusion does not necessarily immediately open up these sales as a practical matter.
First, the underlying statutes and penalties are still on the books. Second, there are multiple parties that have to be in agreement for OLC’s opinion to be operationalized.
For example, FBI, which administers the National Criminal Background Check System, would have to determine whether it would continue to deny sales of handguns to young adults based on age alone. ATF, which enforces the administrative as well criminal provisions of the Gun Control Act, would have to agree that ignoring the statute would not be cause for an adverse licensing action, even if the FFL were not criminally charged. If a handgun involved in an 18 to 20 sale were later misused by a third party, the FFL also might not have ordinary legal protections against liability, as the sale technically would have violated current statute.
And, of course, states have their own laws that bear on the question and that are not directly affected by OLC’s conclusions.
Nevertheless, OLC’s determination should have real and binding consequences, perhaps including in the positions the government takes in litigation on aged-based Second Amendment restrictions still pending in federal courts. And it’s even possible the Justice Department’s Second Amendment Section might take an interest in aged-based infringements at the state level, including by supporting litigation efforts filed by private pro-gun groups or litigants.
This late breaking story follows on two other major pro-gun actions taken by the Trump administration in mid-September, including the President’s historic Executive Order on hunting and the Second Amendment Section’s lawsuit against sky-high concealed carry permitting fees in San Jose, California.
The Golden Age of the Second Amendment remains in full swing and should be reason enough for pro-gun Americans to flock to the polls to support this unprecedented level of proactive advancement of the right to keep and bear arms. While the President himself is not on the ballot, his agenda is, and only pro-gun majorities in the House and Senate can keep the momentum going. Be sure to check www.nrapvf.org to stay up to date on the relevant races in your jurisdiction.
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