In Defense of Self and Home: The Problems with Limiting Second Amendment Rights for Young Adults Based on Their Age

by Andrew White

Associate Member, University of Cincinnati Law Review Vol. 90

Citations Editor, University of Cincinnati Law Review Vol. 91

Editor’s Note: This article was originally published in Volume 90, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

The Bill of Rights is perhaps one of the most significant legal documents ever written, particularly in American history. It contains some of the most fundamental freedoms guaranteed to American citizens and is seen by many as the centerpiece of our constitutional order.¹ Of course, the scope of the first ten Amendments to the United States Constitution have not gone unchallenged nor without controversy. Several of these Amendments’ protections and guarantees have been the subject of vast amounts of national litigation, producing a progeny of case law that has developed a long line of jurisprudence throughout American history. But not all provisions in the Bill of Rights have this same rich history of case law and interpretation. The Third Amendment,² for instance, has been the subject of litigation in only one major case.³

Surprisingly, another Amendment that had scanty and underdeveloped jurisprudence throughout most of American history was the Second Amendment, which protects the right “of the people to keep and bear Arms.”⁴ In fact, until the twenty-first century, the scope of the Second Amendment had only been explored in one major Supreme Court case.⁵ Not until 2008 did the Supreme Court perform its first extensive interpretation of the Second Amendment in the landmark case District of Columbia. v. Heller.⁶ In Heller, a divided five-four Court interpreted the Second Amendment as a right held by all individuals for self-defense.⁷ Heller ushered in a sea of change in Second Amendment interpretation from previous federal court jurisprudence, where the right had generally been understood as intertwined with only military or militia use.⁸ Moreover, the Second Amendment was not even incorporated and enforceable against the States until 2010.⁹

After the Court’s decision in Heller, litigation over various gun control statutes and regulations exploded.¹⁰ In July 2021, a challenge to federal gun control laws arose in the United States Court of Appeals for the Fourth Circuit in Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives.¹¹ In Hirschfeld I, the Fourth Circuit held that federal gun laws that prohibited licensed firearm dealers from selling handguns to eighteen-, nineteen-, and twenty-year-olds were unconstitutional and violated the Second Amendment.¹² However, the Fourth Circuit vacated the decision on mootness grounds two months later in Hirschfeld II.¹³ Nevertheless, the Fourth Circuit’s original decision created a circuit split with the Fifth Circuit, which had found the same challenged laws and regulations constitutional in 2012.¹⁴ Although the vacatur decision quelled this circuit split for the time being, the Fourth Circuit acknowledged that “the ‘legal community as a whole,’ … will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source.”¹⁵

This Note argues that despite being vacated, courts should adopt the majority’s analysis in Hirschfield I. Courts should therefore reject the Fifth Circuit’s contrary holding. Section II of this Note discusses the history of Second Amendment jurisprudence leading up to and including the Supreme Court’s landmark decision in Heller as well as notable post-Heller cases that established the modern framework for analyzing challenges brought under the Second Amendment. Section II concludes by examining the two decisions that initially created the circuit split.

Section III of this Note argues that the Fifth Circuit’s decision to uphold the challenged gun control laws, while not indefensible, is nonetheless irreconcilable with Heller. Rather, the Fifth Circuit’s reasoning runs contrary to both the original purpose and central concern of the Second Amendment as well as the history of vigorous protections accorded to fundamental liberties found in the Bill of Rights. Section III further contends that the Fourth Circuit’s decision in Hirschfeld I is more consistent with Heller’s central holding and demonstrates a greater respect for constitutional rights. Finally, Section III discusses the practical realities and policy concerns that further suggest courts should follow Hirschfeld I. Section IV concludes that the issue in Hirschfeld I should be revisited and that the vacated opinion be reinstated and adopted as the controlling standard.

Cover Photo by Jesse Collins on Unsplash

Andrew White

Andrew White is a 3L from Cincinnati, OH. His primary interests outside of the law include sports, reading, and spending time with his friends and family. Inside the legal field, Andrew's primary areas of interest include federal courts, employment law, and constitutional law, which have been exemplified in his two case notes he wrote as an Associate Member on the Second Amendment and the First Amendment public employee free speech doctrine. After graduation, Andrew plans to stay and work at a firm in Cincinnati, and he hopes to be able to practice in both the employment and constitutional law fields.

References

1
Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1131 (1991).
2
U.S. Const. amend. III (“No solider shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”).
3
Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).
4
U.S. Const. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”).
5
See United States v. Miller, 307 U.S. 174, 178 (1939) (holding that the Second Amendment does not protect an individual’s right to keep and bear a “sawed-off” shotgun).
6
554 U.S. 570 (2008).
7
Id. at 594-95.
8
See, e.g., Parker v. District of Columbia, 311 F. Supp. 2d 103, 105 (D.D.C. 2004) (stating that the “vast majority of circuit courts…reject[ed] an individual right to bear arms separate and apart from Militia use”).
9
See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
10
A number of post-Heller cases are discussed infra, Part II.C.
11
5 F.4th 407 (4th Cir.), as amended (July 15, 2021), vacated, 14 F.4th 322 (4th Cir. 2021).
12
Hirschfeld I, 5 F.4th at 452.
13
Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 14 F.4th 322 (4th Cir. 2021) (vacating its prior decision in 5 F.4th 407 (4th Cir. 2021) on mootness grounds because the plaintiffs had turned 21, thus the challenged laws no longer applied to them).
14
See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 211 (5th Cir. 2012).
15
See Hirschfeld II, 14 F.4th at 328.

I. Introduction

Author

References