Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives

• Decision Date: 13 July 2021
• Docket Number: No. 19-2250,19-2250
• Citation: 5 F.4th 407
• Parties: Tanner HIRSCHFELD; Natalia Marshall, Plaintiffs – Appellants, v. BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; Marvin Richardson, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Merrick B. Garland, Attorney General, Defendants – Appellees. Brady; Giffords Law Center To Prevent Gun Violence ; Everytown for Gun Safety Support Fund, Amici Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

5 F.4th 407

Tanner HIRSCHFELD; Natalia Marshall, Plaintiffs – Appellants,

v.BUREAU OF ALCOHOL, FIREARMS, TOBACCO & EXPLOSIVES; Marvin Richardson, Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Merrick B. Garland, Attorney General, Defendants – Appellees.

Brady; Giffords Law Center To Prevent Gun Violence ; Everytown for Gun Safety Support Fund, Amici Supporting Appellees.

No. 19-2250

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2020

Decided: July 13, 2021

Amended: July 15, 2021

ARGUED: Elliott Michael Harding, HARDING COUNSEL PLLC, Charlottesville, Virginia, for Appellants. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Kirti Datla, HOGAN LOVELLS US LLP, Washington, D.C., for Amicus Brady. Angela Ellis, SULLIVAN & CROMWELL LLP, Washington, D.C., for Amicus Giffords Law Center to Prevent Gun Violence. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellees. Jonathan E. Lowy, Kelly Sampson, BRADY, Washington, D.C.; Michael J. West, Washington, D.C., Jon M. Talotta, HOGAN LOVELLS US LLP, Tysons, Virginia, for Amicus Brady. Hannah Shearer, Hannah Friedman, San Francisco, California, J. Adam Skaggs, GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE, New York, New York; Robert A. Sacks, Leonid Traps, Jackson Froliklong, Rachel H. Vangelder, SULLIVAN & CROMWELL LLP, New York, New York, for Amicus Giffords Law Center to Prevent Gun Violence. Eric Tirschwell, William J. Taylor, Jr., EVERYTOWN LAW, New York, New York; Darren A. LaVerne, Karen S. Kennedy, Jessica K. Weigel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, New York, for Amicus Everytown for Gun Safety Support Fund.

Before AGEE, WYNN, and RICHARDSON, Circuit Judges.

Vacated, reversed, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Agee joined. Judge Wynn wrote a dissenting opinion.

RICHARDSON, Circuit Judge:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation's most cherished constitutional rights vest no later than 18. And the Second Amendment's right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft overinclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status.

I. Background

Prospective handgun buyers sued the Bureau of Alcohol, Tobacco, Firearms and Explosives seeking an injunction and a declaratory judgment that federal statutes prohibiting Federal Firearm Licensed Dealers from selling handguns and handgun ammunition to 18-, 19-, and 20-year-olds (and the federal regulations implementing those statutes) violate the Second Amendment. See 18 U.S.C. § 922(b)(1), (c)(1) ; 27 C.F.R. §§ 478.99(b)(1), 478.96(b), 478.124(a).¹

Nineteen-year-old Natalia Marshall had good reason to seek protection. She had been forced to obtain a protective order against her abusive ex-boyfriend who, since the issuance of the order, had been arrested for unlawful possession of a firearm and controlled substances. He was released on bail but never came to court, leading to the issuance of a capias for his arrest. Along with the threat from her ex-boyfriend, Marshall works as an equestrian trainer, often finding herself in remote rural areas where she interacts with unfamiliar people. Having grown up training with guns, she believes that a handgun's ease of carrying, training, and use makes it the most effective tool for her protection from these and other risks. But because Marshall was 18 when she tried to buy a handgun, a federal law prevented her from buying from a licensed dealer who would perform a background check to verify that she was not a felon or other prohibited person. She preferred using a licensed dealer because they tend to have a wider supply, a good reputation, and a guarantee that the guns have not been used, stolen, or tampered with. She is now 19 and remains unable to buy a handgun from a federally licensed dealer for self-defense.

The other Plaintiff, Tanner Hirschfeld, tried to buy a handgun from a licensed dealer and was denied because he was only 20. But he has since turned 21 and is no longer affected by these laws. His claims are therefore moot. See Craig v. Boren , 429 U.S. 190, 192, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Marshall, however, is not yet 21, so this appeal may still proceed.

A. The challenged laws

In 1964, Congress, concerned about increasing gun violence, began a "field investigation and public hearings." S. Rep. No. 88-1340, at 1 (1964). Congress concluded, among other things, "that the ease with which" handguns could be acquired by "juveniles without the knowledge or consent of their parents or guardians ... is a significant factor in the prevalence of lawlessness and violent crime in the United States." Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. IV, § 901(a)(2), 82 Stat. 197, 225; see, e.g. , S. Rep. No. 90-1097, at 77 (1968). Statistics, testimony from law enforcement, and other evidence showed that a large portion of violent crime and its escalation stemmed from minors with guns.² Based on the testimony from Internal Revenue Service Commissioner Sheldon Cohen, Congress concluded that juveniles obtained these guns from licensed dealers who sell to "emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior." Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat. at 226; see Federal Firearms Act: Hearings Before the H. Comm. on Ways and Means , 89th Cong. 31 (1965) (testimony of Sheldon S. Cohen) (explaining that "importers, manufacturers, and dealers who operate under licenses issued by the Federal Government" are responsible for putting firearms in the hands of juveniles). They also found that "the handgun is the type of firearm that is principally used in the commission of serious crime" and "the most troublesome and difficult factor in the unlawful use of firearms." S. Rep. No. 89-1866, at 4–7 (1966). Seeking only to curtail the "clandestine" purchase of weapons by juveniles without their parents’ knowledge, Congress sought to permit the ownership and use of firearms with parental permission. Id. at 58–59; S. Rep. No. 90-1097, at 79 ; 114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Thomas J. Dodd).

To address these concerns, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197. The preamble declares:

[T]he ease with which any person can acquire firearms other than a rifle or shotgun (including criminals, juveniles without the knowledge or consent of their parents or guardians, narcotics addicts, mental defectives, armed groups who would supplant the functions of duly constituted public authorities, and others whose possession of such weapons is similarly contrary to the public interest) is a significant factor in the prevalence of lawlessness and violent crime in the United States.

Id. § 901(a)(2), 82 Stat. at 225.

The Act prohibited licensed dealers from selling handguns to anyone under age 21 but permitted the sale of shotguns and rifles to those individuals. Id. § 902, 82 Stat. at 230. Later that year, Congress amended the law to prohibit licensed dealers from selling any firearm to those under 18 and maintained the ban on the sale of handguns for 18-, 19-, and 20-year-olds. Gun Control Act of 1968, Pub. L. No. 90-618, tit. I, § 102, 82 Stat. 1213, 1218.³ The section, which has remained unchanged since 1968, reads:

[It is] 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 twenty-one years of age.

Id . (codified at 18 U.S.C. § 922(b)(1) ). The implementing regulation, 27 C.F.R. § 478.99(b)(1), contains similar language. The law did not eliminate any age group's ability to own, possess, or use a gun. Id .⁴

Another part of the law requires licensed dealers to obtain a sworn statement of age before transferring a firearm to a remote purchaser. 18 U.S.C. § 922(c) (providing that a licensed dealer "may sell a firearm to a person who does not appear in person at the licensee's business premises ... only if the transferee submits to the transferor a sworn statement" affirming "that, in the case of any firearm other than a shotgun or...