The Supreme Court could soon take up the issue of gun control laws specifically aimed at 18-to-20-year-olds, thanks to a pair of Fourth Circuit cases that are slated to be heard in conference later this fall. If the court passes on those particular cases, though, there are several others in the pipeline, including a Ninth Circuit lawsuit known as Pinales v. Attorney General for the State of Hawaii.
The Second Amendment Foundation, joined by two individuals and two businesses, filed suit last November, and this week the plaintiffs’ attorneys Alan Beck and Kevin O’Grady filed a motion for summary judgment, asking the U.S. District Court judge overseeing the case to declare Hawaii’s ban on the acquisition and ownership of firearms and ammunition by adults under the age of 21 a violation of the Second Amendment.
In their brief, Beck and O’Grady say the Hawaii laws in question “are both historical and modern-day outliers,” arguing that “historically, no state or colony completely banned the acquisition and possession of firearms to adults under 21.” The same is true today: Hawaii is the only state that completely bans the acquisition and possession of ammunition and firearms by adults under 21.
Some courts, like the Eleventh Circuit, have upheld restrictions on the sale of firearms to under-21s by claiming they can still get a gun, if needed, from a family member, but that’s not the case in Hawaii. Adults who can get married, serve on a jury and in the military, enter into contracts, and aren’t eligible to be tried for crimes in juvenile court are still treated as minors when it comes to exercising their Second Amendment rights.
“Put simply, Hawaii’s laws completely prevent adults under 21 from exercising their Second Amendment rights,” SAF Executive Director Adam Kraut said in a press release. “In passing and enforcing these laws, Hawaii lawmakers have thumbed their noses at the Constitution, the Supreme Court, and ultimately, at the very citizen residents from whom they draw their authority. Peaceable adult citizens have the fully panoply of rights guaranteed them by the Constitution, whether they’re 20, 40 or 60 years of age. These laws must be struck down.”
“Imagine if lawmakers stripped the rights of free speech, or freedom from unreasonable search or seizure, or the rights of the accused from 18-, 19- and 20-year-olds,” mused SAF founder and Executive Vice President Alan Gottlieb. “We would be outraged. So why would we accept the infringement of their right to keep and bear arms? The Second Amendment is not a second-class right, and we will continue to fight those who treat it as such.”
The Eleventh Circuit declared that under-21s are still minors, at least from a historical perspective, because they couldn’t enter into binding contracts at the time of the Founding or the ratification of the Second Amendment in 1791. Beck and O’Grady are urging the trial judge not to make that same mistake, noting that the real question is “did firearm regulation at the time of the Founding support the total disarmament of legal adults based solely on their age?”
The state cannot prove a historical tradition of disarming peaceable adults based solely upon their age, because no such regulations exist. Instead, the state is likely to rely on historical commercial regulations on individuals between 18 and 21 years of age, at a time when such individuals were considered minors under the law. Commercial regulations designed and intended to protect minors from predatory creditor practices matches neither the “how” nor the “why” relevant to the Bruen analysis of analogous regulations.
The plaintiffs also note that the Third Circuit, Eighth Circuit, and Fifth Circuit have all held that adults under the age of 21 are fully vested with their Second Amendment rights, while arguing that the Fourth Circuit and Eleventh Circuit have upheld restrictions on under-21s by relying on an “erroneous understanding of historical contract law.”
The Eleventh Circuit found that “minors generally could not purchase firearms because they lacked the judgment and discretion to enter contracts” and as a result historically did not have the right to purchase firearms. The Fourth Circuit agreed with this analysis and similarly found “the burden § 922(b)(1) imposes on the Second Amendment rights of 18- to 20-year-olds is relevantly similar to the burden imposed by the founding-era rule that contracts with individuals under the age of 21 were unenforceable.”
Beck and O’Grady argue that the historical regulations the appellate courts used to uphold bans on the sale of firearms to under-21s actually dealt with minors, not legal adults. But they also say that “a closer look at the voidability law of contracts which the Fourth and Eleventh Circuits rely on to justify their rulings show that this doctrine did not apply to firearms.”
An important exception to the rule that contracts by minors were voidable dealt with necessities. At Common Law, minors could enter into enforceable contracts for necessities. The term necessity went beyond basic necessities such as food and water and encompassed any necessity that was “essential to him in his current position in life.”… military uniforms were considered a necessity. Similarly., in some circumstances, such as when needed for military service, a horse was a necessity. The same reasoning would have applied to firearms for militia service. In colonial America, firearms were a necessity pursuant to this definition because they were required for hunting, militia service and other aspects of life. Thus, a minor could have entered into an enforceable contract to purchase a firearm. The Eleventh and Fourth Circuit’s main support for the proposition that firearms were not necessities is a South Carolina case that found pistols were not a necessity. “Importantly, “liquor, pistols, powder, saddles, bridles, [and] whips” were not necessaries.”
Pistols were not required for militia services. Long guns were. “The smoothbore flintlock musket was the standard infantry weapon of the American Revolution.” Pistols also were not used for hunting for the same reasons that they were unsuitable for militia service (poor range etc.). Muskets and other long arms were essential to the average 18–20-year-old minor to maintain his current position in life because they allowed him to engage in hunting and militia service.The Eleventh Circuit erred in making a blanket statement about firearms not being a necessity by relying on one case about pistols which are a discrete type of firearm typically not used for militia service or hunting.
That’s a compelling argument, and it’s one the Supreme Court should also consider when it debates granting cert to NRA v. Bondi and the pair of Fourth Circuit cases later this fall.
We’ll see how Hawaii tries to get around these historical truths when Attorney General Anne Lopez and her team file their response to the motion for summary judgment a few weeks from now. Beck and O’Grady havre already successfully undone some of Hawaii’s unconstitutional gun laws, and given the strength of their argument and the outright prohibition on the possesion and acquisition of firearms for young adults in question, I think the odds are good that they (and the Second Amendment Foundation) will notch another legal win in Pinales.
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