Florida Attorney General James Uthmeier is urging the Supreme Court to grant cert to the National Rifle Association’s challenge to the state’s ban on gun sales to adults younger than 21, but he’s making it clear that he doesn’t plan on defending the law.
In his response to the NRA’s cert petition Uthmeier filed on Wednesday, the attorney general agreed with the group’s position that the law in question violates the Second Amendment rights of young adults, adding that a split on the issue among several appellate courts makes it even more important that the Supreme Court weigh in now that it has the opportunity.
Uthmeier, however, won’t be the one defending the Florida statute if SCOTUS does grant cert.
Of course, Florida defended the constitutionality o fSection 790.065(13) in the court of appeals, whereas in this Court it intends to argue that the law is infirm. But that lack of adversity on the purely legal question does not moot this case. Given the Eleventh Circuit’s decision, and the duty state law imposes on the Department of Law Enforcement to “determine . . . whether the potential buyer is prohibited from receiving or possessing a firearm,” Commissioner Glass continues to enforce Section 790.065(13).Fla. Stat. § 790.065(2)(c)4; see also First Nat’l Bank of Boston v. Belloti, 435 U.S. 765, 774–75 (1978) (holding that a case is not moot where there remained a “reasonable expectation” that the state would seek to enforce the law against plaintiffs in the future, as the law remained in effect and a state official expressed his intention to enforce the law against the plaintiffs in the future). And if this Court wants the benefit of opposing views at the merits stage, it can appoint an amicus to defend the judgment of the court of appeals.
It would be rare, but not unheard of, for the Court to invite amici to defend a challenged statute when the party that would typically do so . There’s no shortage of interested parties who would be happy to argue in favor of keeping the law in place, from gun control groups like Everytown for Gun Safety and March for Our Lives (though whether the latter has the financial resources to take on that responsibility is an open question) to blue-state attorneys general; some of whom are already defending similar laws in states like Colorado.
SCOTUS could also decide to pass on NRA v. Glass and still address the issue through three other cases that are awaiting consideration in conference this fall; Paris v. SAF (dealing with Pennsylvania’s ban on concealed carry for under 21s) along with McCoy v. ATF and WVCDL v. ATF, two cases out of the Fourth Circuit challenging the federal ban on handgun sales to adults younger than 21. The justices could also grant cert to all these cases and consolidate them, delivering one opinion that would address both gun purchases and gun carriage for young adults. And of course, SCOTUS could reject all of these cases and kick this can down the road for another term or two.
The government’s reply briefs in McCoy and WVCDL aren’t due until September 8 and October 3, respectively, and it’s going to be interesting to see what position the Department of Justice takes on the issue. Will it follow Uthmeier’s lead and decline to defend the ban on handgun sales for under-21s, or will the Trump administration argue to keep the law in place?
In an interesting twist, Attorney General Pam Bondi did defend Florida’s law when she was the state’s AG, which was one of the main criticisms of Second Amendment groups when Donald Trump appointed her to head up DOJ. Bondi’s been pretty darn good on Second Amendment issues in her new position, but if the DOJ ends up defending the statutes instead of adopting Uthmeier’s stance in siding with the plaintiffs, she’s sure to face another round of complaints from 2A advocates.
Editor’s Note: The Second Amendment protects the right of “the people” to keep and bear arms, and that should include people who are old enough to serve in the military or on a jury, vote, get married, and exercise every other enumerated right to the fullest.
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