Robin Felix Finch | Do Federal Bans on Handgun Sales to 18-20 Year Olds Violate the Second Amendment?

Background

“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.” U.S. Const. amend. II. The Second Amendment is perhaps the most hotly debated provision of the Constitution. Whether focus is placed on the word “regulated,” “Militia,” “bear,” or “infringed,” interpretation of its plain language can yield a broad array of results. Because of this, there is a patchwork of regulations across states governing who may possess arms, what type, and in what locations.

The federal government imposes few firearms restrictions aside from those that regulate their sale or prohibit those found guilty of certain criminal conduct from purchasing or possessing firearms. It is one of the Commerce Clause restrictions that brings us today’s split.

“It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than 21 years of age” 18 U.S.C. § 922(b)(1)

It is important to note that this statute only applies to commercial firearm sales to those below the age of 21 and is irrelevant to private sales or even possession by such individuals of firearms that the same are unable to purchase commercially. The language of this statute effectively bans the sale of handguns to those who are aged 18-to-20.

The plaintiffs in each case at issue are such 18-to-20-year-olds who wish to challenge the constitutionality of 18 U.S.C. § 922(b)(1), stating that it infringes upon their right to keep and bear arms by preventing the purchase of said arms by regular, lawful, commercial means. Though the statute itself is directed at manufacturers, dealers, and collectors, plaintiffs assert the statute is injurious to the rights of the 18-to-20-year-olds who are otherwise law-abiding citizens. 

Issue

Whether the ban on commercial handgun sales to 18-to-20-year-olds under 18 U.S.C. § 922(b)(1) violates the Second Amendment.

The Split

The split on this issue arises from two circuits looking to identical guidance and reaching opposing results. These cases rely on the two-step framework put forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), where New York’s handgun permit practices were found unconstitutional. First, courts consider whether the conduct at issue is covered by the plain text of the Second Amendment, and second, they analyze if the government has shown that the regulation is consistent with the nation’s history and tradition of firearm regulation. The first step of the test, finding that the Constitution protects conduct, was derived from District of Columbia v. Heller, 544 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010). The second step, an analysis of the regulation against historical tradition, utilized only the text of the Constitution and its related history. The Court found in Bruen that this approach derived from Heller and McDonald was susceptible to results aligning with the policy preferences of lower court judges which resulted in an inconsistent patchwork of decisions related to Second Amendment rights based on jurisdiction.

To remedy this deficiency, the Court stated that the test must focus on the comparable burden on the right to armed self defense imposed by modern regulations against historical analogues and that the comparable burden must be justified. The Court recognized that these comparisons may not be identical, but sufficient analogy may allow it to pass constitutional muster, and that these regulations must apply to circumstances beyond the fixed understanding of the Founders.

It is within this framework that the Fourth Circuit found 18 U.S.C. § 922(b)(1) to be consistent with the history of firearm regulation, while the Fifth Circuit found 18 U.S.C. § 922(b)(1) to be unconstitutional.

The Fourth Circuit

Our case from the Fourth Circuit, McCoy v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 140 F.4th 568 (4th Cir. 2025), is an appeal from the United States District Court for the Eastern District of Virginia at Richmond. The district court held for the plaintiffs, four 18-to-20-year-olds who wished to purchase handguns. The district court also granted class certification to similarly situated 18-20-year-olds. On appeal, the Fourth Circuit both found the class certification to be improperly timed, and reversed and remanded the decision with directions to dismiss.

The first step of Bruen analysis was uncontested by the Fourth Circuit based on the legal purchase of arms being protected conduct under Heller. The case turned on the second part of the analysis, demonstrating that the challenged regulation is consistent with the historical tradition of firearm regulation in the United States. The majority found that the regulation was, in fact, consistent with history and therefore was not a violation of the Second Amendment.

The court relied heavily on the English common law tradition of persons under the age of 21 being considered “infants” for the sake of contracting and thus being unable to enter a contract. Though the district court cited the Militia Act of 1792 as evidence of 18-to-20-year-olds having a constitutional right to purchase handguns, the Fourth Circuit was unconvinced, as the Militia Act did not set 18 as the minimum age universally for joining the militia, and the act required “providing” a firearm, which need not necessarily require purchasing one. State law was also utilized in this decision, citing that at least 20 jurisdictions had criminalized the sale of firearms to individuals under the age of 21. The 26th amendment, which granted citizens 18 and older the right to vote, was presented by the appellees as evidence that today’s society has come to determine 18 is the proper age of social majority for most purposes. This was rebuffed by the Fourth Circuit, as they found it unlikely that Congress would enact a statute and allow it to become unconstitutional 3 years later.

Circuit Judge Quattlebaum penned the dissent, maintaining that it would follow the Supreme Court’s jurisprudence to find that the statute does infringe of a right of 18-20-year-olds as they are included in the class of “the people” against whom the right to bear arms is not to be infringed.

The Fifth Circuit 

The Fifth Circuit case Reese v. Bureau of Alcohol, 127 F.4th 583 (5th Cir. 2025) originated in the United States District Court for the Western District of Louisiana. The plaintiffs and appellants in this case were 18-to-20-year-old individuals and organizations with members who were interested in the ability to legally purchase handguns. Despite finding that the plaintiffs had standing, the district court granted the government its motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Though a previous challenge to 18 U.S.C. § 922(b)(1) was unsuccessful in the Fifth Circuit, the decision had been made prior to Bruen. As such, the panel found their previous decision was incompatible with the new guidance from the Supreme Court and reversed the judgment of the district court, ordering the case remanded for further proceedings consistent with the opinion in the instant.

As in the Fourth Circuit, there was no question that the first step of Bruen was met. The second step of the process was like that of the Fourth Circuit in form, but with a notably different result.

The Fifth Circuit also looked to the 1792 Militia Act as a revolution-era regulation, but it found that the law shows that at the time of founding 18-to-20-year-olds were not only allowed to serve in the militia, but were required to do so. The Fifth Circuit also looked to other provisions of the Constitution to show that the exclusion of an age in relation to individual rights suggests that the right extends to all people. The court referred to the Article I requirement that representatives must be 25 years old to demonstrate that the Founders clearly understood how to add an age or maturity requirement to an amendment, but that they did not do so for the Second Amendment. While historical analysis found that 18-to-20-year-olds could not enjoy several civil and political rights in the founding era, the government did not show the Fifth Circuit that they also lacked the right to self-defense which was the central component to the Second Amendment.

Additionally, the Fifth Circuit decided against taking a strict originalist view of the term “the people.” The introduction of the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-Sixth amendments all expanded civil and political rights long after the founding of the nation. In their opinion, to restrict the exercise of rights only to those who possessed political capital during the time of founding would imply that you must exclude law-abiding, adult citizens based on property, ownership, race, or gender.

Under the preceding analysis, the Fifth Circuit held that 18 U.S.C. § 922(b)(1) and other relevant statutes and regulations are unconstitutional as viewed through the historic lens of our national tradition of firearm regulation.

The parties in Reese have petitioned for a writ of certiorari, and as of October 8, 2025, the respondents have filed their briefs. If the Supreme Court takes up this case, it is likely that they would find 18 U.S.C. § 922(b)(1) to run afoul of the test they put forward in Bruen.

Both circuits used the framework initially put forward by the Supreme Court, but an important distinction for Reese and McCoy is that they are challenging federal statute, while Heller and Bruen concerned state and territorial law. While the ATF in both cases was able to cite individual state and territorial regulations on firearms, no such regulations were cited historically for a federal restriction. The Supreme Court will likely continue to be more permissive with state regulations, but skeptical of federal firearm regulations due to the lack of historical precedent.

This need not lead to a “wild west” of unregulated firearm sales. Instead, the view of who is included in “the people” whose rights “shall not be infringed” will broaden, but prior criminality, citizenship, and conduct will remain restrictions on firearm possession and sales. Some states will likely attempt to revive this statute in their own jurisdictions, leading to a new cycle of litigation.

Find Robin Felix on LinkedIn!