Max Londberg, Associate Member, University of Cincinnati Law Review
For more than half a century, a collection of federal statutes and regulations have prohibited federal firearms licensees from selling handguns and handgun ammunition to 18-, 19-, and 20-year-olds. Congress enacted the Omnibus Crime Control and Safe Streets Act in 1968 in an effort to curb gun violence. The legislation has withstood challenges brought under the Second Amendment. But in July, the Fourth Circuit, in a split decision, became the first such court to break with longstanding precedent by declaring the laws unconstitutional.
The holding in Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives created a circuit split, as the Fifth Circuit previously upheld the laws’ constitutionality. However, the same panel of judges vacated the decision less than three months later. The last remaining plaintiff turned 21, rendering her claim moot. The Fourth Circuit’s merit decision, apart from its tenuous analysis, was initially deemed a “recipe for national inaction on gun violence,” and it could still inspire such inaction in a future case.
This piece first details the legal and factual background of Hirschfeld. It then examines the flaws in the opinion.
A. Factual Backdrop
Natalia Marshall sued the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), claiming the laws violate the Second Amendment. Marshall sought a handgun for protection against an abusive ex-boyfriend and against strangers in remote areas where she worked, but, given her age at the time, the laws prevented the purchase. She preferred to buy from a federally licensed dealer for its reputation and selection. She considered a handgun to be the most effective self-defense tool.
Marshall challenged laws passed in 1968 by a Congress that had conducted a years-long investigation of gun violence that included statistical analysis and input from law enforcement. Congress concluded that the ease of access to guns—particularly handguns—by juveniles was contrary to the public interest.
B. Legal Analysis: The Two-Step Framework
In 2012, the Fifth Circuit became the first circuit court to rule on the constitutionality of the challenged laws after Dist. Of Columbia v. Heller. In Heller, the United States Supreme Court held a ban on in-home handgun possession violated the Second Amendment. Despite its ruling, the Heller Court “emphasized that the right secured by the Second Amendment is not unlimited.” Heller even stressed that “nothing 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 imposing conditions and qualifications on the commercial sale of arms.”
The Fifth Circuit, hearing a claim that Heller provided sufficient support to invalidate the ban on selling handguns to 18-, 19-, and 20-year-olds, adopted a two-step framework—previously adopted by other courts of appeals—to analyze the limited handgun-sale prohibition. The first inquiry asks whether the challenged measure regulates conduct that falls “within the scope of the Second Amendment guarantee.” If the inquiry in step one is answered in the affirmative, the second step calls for determination of the appropriate level of scrutiny, confined to intermediate or strict, and to analyze the law. Intermediate scrutiny is a test used to “determine a statute’s constitutionality.” To be constitutional under this test, a law must: “further an important government interest” and “do so by means that are substantially related to that interest.” Strict scrutiny is similar but more rigorous, asking whether a law furthers a “compelling governmental interest” and whether the legislature “narrowly tailored the law to achieve that interest.”
The Fifth Circuit stated it was “inclined” to uphold the prohibition on handgun sales to young people at step one of its analysis after determining that gun control measures, including measures disarming certain groups, existed even before the Revolution; that scholarly interpretations suggested the Founders would have supported limiting or banning firearm ownership by those under 21; and that nineteenth- and twentieth-century laws restricted the ability of people under 21 to buy guns. But despite its inclination, the Fifth Circuit, “in an abundance of caution,” proceeded to step two.
In step two, the Fifth Circuit deemed the laws to be a less severe burden on Second Amendment rights than should trigger strict scrutiny, in part because the laws permit 18-, 19-, and 20-year-olds to possess any type of firearm, even handguns, and to buy long guns from federally licensed dealers. In finding the laws survived intermediate scrutiny, the Fifth Circuit found a reasonable means-ends fit between the laws and an important government objective—curbing violence among young people under 21. The court deemed the Act a “calibrated, compromise approach,” remarking on the modest nature of the legislation. Congress’s investigation revealed federally licensed dealers were a “central conduit” of handgun traffic to minors, that handguns were easy to conceal and “principally used” in serious crimes, and that minors accounted for 64 percent of total arrests for serious crimes. Thus, the Fifth Circuit held the restriction on handgun sales from federally licensed dealers constituted a “reasonable means-ends fit” between the law and its objective, as the former was appropriately adapted for accomplishing the latter.
The Fourth Circuit disagreed. Its decision was ultimately vacated after the final remaining plaintiff turned 21 (her age had been listed as younger in some court documents). But in vacating, the court stated the decision would remain available as a “persuasive source.”
In its merit decision, the court first found that the regulations are not “presumptively lawful” as described by Heller because they do not simply limit gun purchases by, for example, requiring licensing, but instead the laws fully ban purchases. The Fourth Circuit next moved to step one, finding 18-to-20-year-olds are protected under the Second Amendment. In support, the court emphasized that every militia law around the time of the ratification of the Second Amendment required 18-year-olds to join the militia and “bring their own arms.” The court also used First Amendment jurisprudence as a guidepost, finding that though minors are subject to qualifiers on their speech, their speech rights are not eliminated altogether. The court stated: “[T]ime, place, and manner regulations are a part of everyone’s First Amendment rights regardless of age,” and “the existence of the right is not limited by age.”
In step two, the Fourth Circuit did not decide which level of scrutiny to apply as it found the laws “do not even pass intermediate scrutiny.” The Fourth Circuit concluded the laws were both underinclusive and overinclusive. Less than 1 percent of 18-, 19-, and 20-year-olds commit violent crimes, so the Fourth Circuit concluded laws that restrict all members of that age group are overinclusive. As for underinclusivity, the court stated that though “almost all” firearms reach minors via licensed dealers (even if indirectly), that fact does not support a “link between handgun purchases directly from licensed dealers and gun violence committed by young adults.” The court further found that few offenders purchase weapons from a federally licensed dealer, in part due to background-check requirements. The laws encourage youths to purchase guns from illegal or unlicensed sources. And finally, studies do not definitively show that the laws influence youth crime rates.
The Fourth Circuit’s decision to invalidate the prohibition on handgun sales is flawed. Its decision, and the earlier decision in the Fifth Circuit, indicates that the next court battle on this issue will likely hinge on step two. This section will first address the Fourth Circuit’s step-one analysis, then its step-two analysis.
The Fourth Circuit correctly stated the Second Amendment has no explicit age limit, but it also claimed that the “most analogous constitutional rights [to those conferred by the Second Amendment] apply equally to everyone.” The Fourth Circuit fairly relied on First Amendment jurisprudence to inform its Second Amendment analysis. But the court overstepped in contending student speech jurisprudence supports its proposition that constitutional rights apply equally to everyone. Guns are not words, but both can have significant effects on others, and so both are subject to constitutional constraints that apply only to young people. The Fourth Circuit ignored substantial qualifications to First Amendment rights applied only to students in schools. In invoking Tinker v. Des Moines Indep. Cmty. Sch. Dist. to contend student free speech rights are “not limited by age,” the Fourth Circuit elides the more recent student free speech cases of Morse v. Frederick and Bethel Sch. Dist. No. 403 v. Fraser. In the latter cases, the Supreme Court extended restrictions established by Tinker by upholding prohibitions on students from advocating illegal drug use and using lewd or indecent speech, respectively. These speech laws curb minors’ ability to exercise their First Amendment rights in ways that are unique to minors. Like the Second Amendment, no explicit age limit exists in the First Amendment, yet this caselaw still exists. Contrary to the Fourth Circuit’s contention that the First Amendment is not limited by age, adults are not subject to the speech restrictions established by Tinker, Morse, and Fraser.
In other words, in support of its proposition that constitutional rights apply equally regardless of age, the Fourth Circuit cites a case that only limits the rights of students, and it omits others that further restrict those rights. When minors age out of school, they inherit expanded free speech rights, just as Congress envisioned minors could inherit expanded Second Amendment rights at 21.
Further, the court extensively details militia laws, writing that they support that 18-year-olds are protected by the Second Amendment. But the handgun purchase ban would not have prevented youths from complying with the militia laws invoked by the court; 18-, 19-, and 20-year-olds can still purchase long guns, can still receive any type of gun as a gift, and can buy any type of gun in a private transaction. The ban falls far short of eliminating young people’s Second Amendment rights, just as speech restrictions in school do not eliminate students’ First Amendment rights.
The Fourth Circuit’s analysis is just as unconvincing in step two. The court relied on questionable reasoning to reach its conclusion that the federal laws restricting handgun sales were both underinclusive and overinclusive.
First, the laws are not underinclusive because the Fourth Circuit’s consideration of the laws’ effectiveness was too narrow. The Hirschfeld dissent noted that Congress’s objective was not only to prevent harm from handguns used in crimes but also to prevent accidents and suicides involving handguns. Children and young adults are at increased risk of death by accidental gun discharge. Including such considerations makes Congress’s laws restricting handgun access even more reasonable.
Second, the laws are not overinclusive, as the Fourth Circuit’s statistical analysis is shortsighted. It pointed to a contemporary study finding only 11.8 percent of people in prison obtained their guns from a legal source. And only about 0.3 percent of 18-, 19-, and 20-year-olds commit violent crime each year. But, as the dissent noted, these statistics do not reflect the number of potential crimes averted because of the challenged laws, which were meant not only to hinder criminals’ access to weapons, but to make it “somewhat harder for law-abiding young adults to obtain handguns and to then turn, gun in hand, to crime in the first place.”
Finally, the Fourth Circuit recently reaffirmed the proposition that courts must “accord substantial deference to the predictive judgments of [the legislature],” a fact that the Hirschfeld dissent emphasized but that seems overlooked by the majority.
The dissent added that under intermediate scrutiny, when the justifications are “familiar and plausible, they need only be supported by minimal empirical evidence.” These laws are both familiar and plausible, as all 50 states have implemented age-based restrictions on guns, many of which restrict possession rights to those under 21.
In sum, the Fourth District’s reasoning was insufficient to invalidate (even if only temporarily) longstanding laws that modestly restrict handgun access to 18-, 19-, and 20-year-olds. It improperly relied on First Amendment jurisprudence for the proposition that certain constitutional rights apply to all equally. It failed to show the laws are both underinclusive and overinclusive. And it failed to pay deference to modest, conscientious legislation.
 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 188 (5th Cir. 2012) (considering constitutionality of 18 U.S.C. §§ 922(b)(1) and (c)(1), 27 C.F.R. §§ 478.99(b)(1), 478.124(a), and 478.96(b)).
 Id. at 189. Notably, the laws do not preclude young people from possessing handguns, from purchasing handguns via private sales, or from purchasing rifles or other long guns from federally licensed merchants.
 See, e.g., id.
 Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 5 F.4th 407 (4th Cir. 2021), vacated, 2021 WL 4301564 (2021) [hereinafter Hirschfeld].
 Id. at 459 (Wynn, J., dissenting).
 Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 2021 WL 4301564 (2021).
 Id. at 2.
 Hirschfeld, 5 F.4th at 483 (Wynn, J., dissenting).
 Id. at 411 (majority opinion).
 Though not mentioned by either the Fourth or Fifth Circuits—which weighed contemporary gun safety research as well as congressional consideration of public safety when passing the laws in question—studies indicate firearm possession has little effect on possessors’ risk of criminal victimization—or may even increase their risk. See, e.g., Charles C. Branas et al., Investigating the Link Between Gun Possession and Gun Assault, 99 Am. J. of Pub. Health 2034 (2009) (finding individuals in possession of a gun were nearly 5 times “more likely to be shot in an assault than those not in possession”); David Hemenway & Sara J. Solnick, The epidemiology of self-defense gun use: Evidence from the National Crime Victimization Surveys 2007–2011, 79 Preventive Medicine 22 (2015) (finding a national crime victimization survey yielded “little evidence that [self-defense gun use] is uniquely beneficial in reducing the likelihood of injury or property loss”).
 Hirschfeld, 5 F.4th at 411.
 Id. at 412.
 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 193 (5th Cir. 2012).
 Dist. of Columbia v. Heller, 554 U.S. 570, 635 (2008).
 Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 193 (internal quotations omitted).
 Id. at 194. See also United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (adopting the two-step framework for deciding Second Amendment cases); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (adopting the two-step framework).
 Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 194.
 Intermediate Scrutiny, Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/intermediate_scrutiny (last visited Sept. 24, 2021).
 Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 200-03.
 Id. at 204.
 Id. at 206 (emphasis added).
 Id. at 209
 Id. at 208.
 Id. at 208-09.
 Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 5 F.4th 407, 452 (4th Cir. 2021).
 Jonathan H. Adler, Will Fourth Circuit Decision on Gun Rights of 18-20 Year Olds Become Moot? Reason (July 21, 2021, 1:00 PM), https://reason.com/volokh/2021/07/21/will-fourth-circuit-decision-on-gun-rights-of-18-20-year-olds-become-moot/ (discussing plaintiff’s varying age in court documents).
 Hirschfeld, 2021 WL 4301564, 2 (2021). But see 2021 WL 4301564 at 3 (stating persuasive value of vacated decision is “no more than the value of newspaper editorials”) (Wynn, J., concurring).
 Hirschfeld, 5 F.4th at 417-18 (noting also that Heller’s analysis counsels against immunizing laws from the Second Amendment because similar laws have long existed).
 Id. at 427.
 Id. at 428.
 Id. at 422.
 Id. at 440.
 Id. at 452. See generally Stuart P. Green, Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation, 14 Crim. L. & Phil. 417, 418 (2020) (defining an overinclusive law as one that prohibits “conduct that is not wrongful”); Hirschfeld,5 F.4th at 482 (Wynn, J., dissenting) (defining an underinclusive law as “ineffective or at least not as effective as it could be”).
 Hirschfeld, 5 F.4th at 445.
 Id. at 448 (emphasis added).
 Id. at 451-52.
 Id. at 451.
 Id. at 451.
 Id. at 440.
 Id. at 422.
 Morse v. Frederick, 551 U.S. 393, 422 (2007) (stating a public school may restrict speech that could be reasonably interpreted as advocating illegal drug use) (Alito, J., concurring); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (“A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students”). See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969) (holding student expression that “materially disrupts classwork or involves substantial disorder” may be proscribed).
 Tinker, 393 U.S. at 513; Morse, 551 U.S. at 422 (Alito, J., concurring); Fraser, 478 U.S. at 685.
 Hirschfeld, 5 F.4th at 430.
 See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 190 (5th Cir. 2012).
 Hirschfeld, 5 F.4th at 468 (Wynn, J., dissenting).
 Id. at 478.
 Id. at 449 (majority opinion).
 Id. at 481 (Wynn, J., dissenting).
 Id. at 473.
 Kolbe v. Hogan, 849 F.3d 114, 140 (4th Cir. 2017) (citation omitted).
 Hirschfeld, 5 F.4th at 465 (Wynn, J., dissenting) (internal quotations omitted).
 Id. at 478.