Circuit Split: Eleventh Circuit Upholds Florida Firearm Purchase Ban for 18-to-21-Year-Olds

By V.R. Bohman, Cameron J. Schlagel, Charlene A. Warner, and Lilly M. Harris

A recently issued decision by the Eleventh Circuit may open the door for additional direction from the U.S. Supreme Court regarding the scope of the Second Amendment. In National Rifle Association v. Bondi, the Eleventh Circuit held that a Florida law prohibiting the purchase of firearms by minors is constitutional as applied to individuals between the ages of 18 and 21.¹ This opinion magnifies a growing split among lower courts in applying the landmark “history and tradition” test established in New York State Rifle & Pistol Association v. Bruen.²

Background. In response to an active shooter incident in Parkland, Florida, in 2018, the Florida Legislature enacted the Marjory Stoneman Douglas High School Public Safety Act (the Act) to “address the crisis of gun violence, including but not limited to, gun violence on school campuses.”³ Relevant here, the law instituted two new limitations on firearm purchases: (1) a “person younger than 21 years of age may not purchase a firearm,” and (2) a “licensed importer, licensed manufacturer, or licensed dealer” may not “ma[ke] or facilitat[e]” the “sale or transfer of a firearm to a person younger than 21 years of age.”⁴

The NRA and an individual under the age of 21 challenged the Act, arguing it violates the Second and Fourteenth Amendments as applied to individuals between the ages of 18 and 21.⁵ The district court denied relief.⁶ However, while the NRA’s appeal to the Eleventh Circuit was pending, the U.S. Supreme Court issued its landmark Bruen decision, which held that a firearm regulation is constitutional only if it “is consistent with this Nation’s historical tradition of firearm regulation.”⁷ The Eleventh Circuit subsequently granted en banc review to determine whether the Act was consistent with this standard.⁸

Eleventh Circuit Opinion. After acknowledging the ongoing scholarly debate and absence of definitive guidance from the Supreme Court regarding the relevant tradition for the Second Amendment analysis, the Eleventh Circuit opted to compare the Florida law to the Founding era.⁹ During that time, individuals under the age of 21 were considered minors.¹⁰ And because the common view was that minors could not be trusted with legal rights because of their undeveloped reasoning skills and judgment, minors were subject to parental control.¹¹ For instance, minors could not contract for the sale of goods, and therefore could not purchase firearms on credit.¹² Further, minors lacked the money required to purchase firearms because their wages belonged to their parents.¹³

The Eleventh Circuit also observed that, at the Founding, states either required parents to provide their minors with firearms for militia service or exempted minors from the firearms requirement for militia service altogether.¹⁴ And universities, acting in the place of parents, often restricted their students’ access to firearms, even off campus.¹⁵

Although the Founding era served as the primary basis for its analysis, the Eleventh Circuit also considered whether post-ratification history from the late nineteenth century supported its conclusion. During that timeframe, many states enacted laws prohibiting or otherwise restricting minors from purchasing firearms, and states lowered the age of majority to 18 only after the conscription age was lowered during World War II.¹⁶ The Eleventh Circuit concluded the post-ratification era regulations made “explicit what was implicit at the Founding: laws may regulate the purchase of firearms by minors.”¹⁷

Based on its historical analysis, the Eleventh Circuit found the Act to be consistent with the United States’ history and tradition in both “why” and “how” it regulates minors’ Second Amendment rights.¹⁸ As to the “why,” the Court determined the Act limits the firearm access of individuals under 21 because they lack the reason and judgment to purchase them responsibly.¹⁹ And as to the “how,” the law does so by preventing those individuals from purchasing firearms in the same manner as Founding era limitations, which (at least to some extent) restricted both firearm access and use for people under 21.²⁰ The Eleventh Circuit expressly determined that the Act is less restrictive in some ways than analogous laws at the Founding, because the Act specifically exempts the right of law enforcement officers under 21 to purchase rifles and shotguns.²¹

For those reasons, the Eleventh Circuit upheld the Act under the Second and Fourteenth Amendments on the basis that it is consistent with the United States’ history and tradition of regulating firearms.²²

Implications and Circuit Split. The Eleventh Circuit’s decision is significant for several reasons. As a primary takeaway, the decision highlights ongoing debates about how to apply the Supreme Court’s “history and tradition” test for Second Amendment challenges, particularly in challenges to age-based restrictions. And because the Eleventh Circuit takes a broader view of permissible historical analogues under Bruen than some other circuits, the Supreme Court may be more inclined to hear the case.

For instance, just a few weeks before the Eleventh Circuit’s decision in National Rifle Association, the Fifth Circuit in Reese v. ATF invalidated a statute that prohibited Federal Firearms Licensees from selling handguns to 18-to-20-year-old adults.²³ The Reese court reasoned that individuals in that age group were part of “the people” for purposes of the Second Amendment and that there was no historical analogue to a categorical prohibition against selling handguns to 18-to-20-year-old adults. The Eleventh Circuit, for its part, was not persuaded by Reese because, in its view, the Fifth Circuit “ignored how the common-law regime restricted minors’ access to firearms.”²⁴ The Third Circuit in Lara v. Comm’r Pennsylvania State Police²⁵ reached a conclusion similar to the Fifth Circuit, holding that Pennsylvania laws effectively banning 18-to-20-year-olds from carrying firearms outside their homes during declared state of emergency violated the Second Amendment.²⁶ Likewise, the Eighth Circuit in Worth v. Jacobson²⁷ invalidated a Minnesota law banning individuals under 21 years old from carrying handguns in public.²⁸

On the other hand, the Tenth Circuit in Rocky Mountain Gun Owners v. Polis upheld a Colorado law prohibiting individuals under 21 from purchasing firearms, but for much different reasons than the Eleventh Circuit.²⁹ Specifically, the Tenth Circuit found the prohibition does not implicate the right to keep and bear arms because it is “presumptively lawful as a law that imposes conditions or qualifications upon the sale and purchase of arms.”³⁰

The Eleventh Circuit’s recent contribution to the debate among the lower courts could provide an opportunity for the Supreme Court to answer some of the questions that it left open in Bruen. At the very least, the different decisions and rationales regarding age-based regulations in these cases are exemplary of a broader rift that has emerged among the lower courts regarding the scope and application of the Supreme Court’s “history and tradition” test.