Fifth Circuit Affirms Fundamental Right of 18-20 Year-Olds To Possess Guns

P. Gardner Goldsmith | February 2, 2025
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Supporters of freedom and Natural Rights just got good news, in the form of a Federal Appeals Court panel-ruling that acknowledges and affirms the right to self-defense for people aged 18 through 20.

Despite the fact that such a right should be obvious to anyone who bothers thinking about the nature of self-defense, it’s a big victory, hints at just how precarious all rights are at the hands of voracious political predators, and it contains a key flaw that helps us learn about a prior major Supreme Court error.

The case, entitled “Reese et al, v. ATF,” stems from the federal so-called “ban” on handgun sales to 18- to 20-year-olds.

One can put the "ban" word in quotes because, of course, the fearmongers in government who tell us that they are stopping “criminals” from getting guns overlook the fact that criminally minded people will get their firearms in the black market.

Jacob Sullum reports for Reason:

“The federal ban on handgun sales to adults younger than 21 violates the Second Amendment, the U.S. Court of Appeals for the 5th Circuit ruled today. That law is ‘unconstitutional in light of our Nation's historic tradition of firearm regulation,’ a three-judge panel unanimously concluded in Reese v. ATF.”

It truly is a big ruling from the panel. But part of it, the portion about “our Nation’s historic tradition of firearm regulation,” requires more attention, attention we will devote in a moment…

Sullum notes:

"’Today's ruling is yet another critical FPC win against an immoral and unconstitutional age-based gun ban,’ said Brandon Combs, president of the Firearms Policy Coalition (FPC), which challenged the law along with two would-be handgun buyers and two other gun rights groups. ‘We look forward to restoring the Second Amendment rights of all peaceable adults throughout the United States.’”

Many Americans might wonder how the US government can tell teenagers that they have to register for a military draft, while, at the same time, the government tells them that, if they are under 21, they cannot personally own a firearm without breaking the vaunted US so-called law.

But that observation, as salient as it might be, does not address the breach of principle.

The so-called “law” is a statute, not Natural Law. It is invented by politicians, not given by God to each of us.

Sullum adds key points about the current case and about the underlying attack on rights that has threatened generations of Americans.

“Under 18 USC 922(b)(1), a provision that was included in the Gun Control Act of 1968, a federally licensed firearm dealer may not sell handguns to ‘any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age.’ The 5th Circuit upheld that restriction in 2012, but that was a decade before the Supreme Court clarified the constitutional test for gun control laws in New York State Rifle & Pistol Association v. Bruen.”

Which brings us to the larger lesson in the panel ruling, the reference to the “Bruen” decision.

Released in June of 2022, the Supreme Court majority decision in Bruen was a double-edged sword. Although it shot down a NY state statute that claimed there was no individual right to keep and bear arms in public, it established a “two-tier” standard for “analyzing” whether a statute that infringes on the right to keep and bear arms actually DOES infringe on that right.

Related: TX Federal Court Judge: Gov't Can’t Block Adults Under 21 From Carrying Guns

See if you can figure this out. As I noted last year for MRCTV:

“The first level of the Bruen standard is simple, in it the SCOTUS hewed to the actual WORDING of the Second Amendment, which asks, essentially:

‘Does a challenged statute adhere to the wording?’

Well, if it INFRINGES the right to keep and bear arms, it does not adhere. Simple.

But then, the 2022 SCOTUS Bruen majority offered its ‘Second Tier’ of adjudication, which undercuts the first.

Indeed, don't bother with their first level and the actual WORDS of the 2A. The 2022 SCOTUS majority claimed that if a government could show an historical example of an INFRINGMENT from the early days of the US, then that might lead to the contemporary statute being judged as perfectly fine. In other words, their invention of the ‘SECOND’ level negates the Second Amendment.”

This is a major problem. It is an offense predicated on the very idea that a judge, be he on the Supreme Court bench or working in a lower court, can excuse a contemporary breach of the Second Amendment by citing some historical breach of the Second Amendment, the clear wording of which is a universal proscription forbidding ANY infringement of the right to keep and bear arms.

Thus, once more, we encounter a judicial decision that at first appears to be laudable. What supporter of the right to keep and bear arms could find fault with a decision that dismantles a federal proscription of that right for people aged 18 through 21?

But the underlying flaw, seen here and in the Bruen “second tier” standard must be called out.

To round-out our coverage, let’s note that Sullum offers more of the good news from the ruling, reporting that Fifth Circuit Judge Edith Jones wrote, in part:

"’…there are no age or maturity restrictions in the plain text of the Amendment, as there are in other constitutional provisions,’ which ‘suggests that the Second Amendment lacks a minimum age requirement.’ She also observes that ‘the right of the people peaceably to assemble’ (protected by the First Amendment), ‘the right of the people’ to be secure from ‘unreasonable searches and seizures’ (protected by the Fourth Amendment), and the unspecified rights ‘retained by the people’ under the Ninth Amendment undoubtedly protect eighteen-to-twenty-year-olds as much as twenty-one-year-olds.’"

Indeed, as the judge notes in her opinion and we can see in the history of the early United States, the militia contained many males under 21, and, as I have noted for MRCTV when covering a federal District Court ruling on this question, American Revolutionary hero Nathan Hale had only just turned 21 when the British hanged him in September of 1776.

It would be nice if politicians and even judges who purportedly back the right to keep and bear arms would face the reality that rights are not supposed to be touched by government, that little carve-outs are unacceptable, immoral, and dangerous, and that agents of government ALREADY take our money in order to engage in their infuriating attempts to massage and manage rights that are supposed to be off limits from their acquisitive hands.

This panel decision is mostly positive, but, on principle, the inclusion of a reference to the Bruen “second tier” tells us that the court is not ready to fully stop the state from infringing on our rights.

That is a big lesson to take from a generally pro-rights Circuit Court ruling.