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NRA Asks SCOTUS to Hear Handgun Sales Restriction Appeal

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By William Peacock, Esq. on August 02, 2013 1:37 PM

At the age of 18, young people can vote. They can go to war. They can play the lottery. They can even purchase a handgun, as long as that purchase occurs between private parties, where no background check is done.

But if a young person, such as co-plaintiff Rebekah Jennings, a former member of the U.S. Olympic Development Team and decorated pistol marksman, wishes to purchase a handgun through legitimate retail channels, she is denied.

Such is the odd state of the law. A bundle of pre-Heller restrictions ban retail sales of handguns and handgun ammunition to anyone under 21, yet allow private party transfers of pistols to those between 18 and 21. Olympian or not, Jennings will have to take her chances with a used pistol at a garage sale.

Fifth Circuit's Controversial Holding

Last year, the Fifth Circuit unfathomably upheld the ban for those under 21, citing deference to Congress' judgment that adults between the ages of 18 and 21 were irresponsible and more likely to commit violent crime. The denial of rehearing en banc drew dissent from six judges.

The dissent cited one interesting statistic: that only 0.58 percent of adults in the age bracket at issue were involved in a violent crime in 2010. Judge Edith H. Jones, who penned the dissent, also warned of the "far-reaching" implications of the majority's holding "that a whole class of adult citizens, who are not as a class felons or mentally ill, can have its constitutional rights truncated because Congress considers the class 'irresponsible.'"

She also emphasized, "Never in the modern era ... has the Supreme Court held that a fundamental constitutional right could be abridged for a law-abiding adult class of citizens."

Selective History

The Fifth Circuit panel's unanimous opinion first expressed doubt that young adults had a right to bear arms at all (due to the long-standing prohibition on handgun ownership), and then assumed, without deciding, that such a right existed. It then applied a form of "intermediate" scrutiny where it justified the ban because at the time of the Second Amendment's ratification, categorical bans on firearm ownership were perfectly acceptable.

As the NRA's petition repeatedly points out, those categorical bans prevented free and enslaved African Americans from owning firearms. At the same time, every male citizen between the ages of 18 and 45 was required to both serve in the militia and to own their own firearm.

If the existence of any class-based gun restriction in the 18th century can justify a modern-day gun restriction on an entirely different class, Judge Jones argued that "any class-based limitation on the possession of firearms justifies any other, so long as the legislature finds that suspect 'discrete' class to be 'dangerous' or 'irresponsible.'"

Beer and Intermediate Scrutiny

The NRA's petition also draws an intriguing comparison between Oklahoma's notorious beer ban for young males, struck down by the U.S. Supreme Court in Craig v. Boren. Oklahoma justified its gender-based ban on a 2 percent correlation between males and drunk driving. The Supreme Court called that correlation "unduly tenuous." Here, the correlation is 0.58 percent and it involves a fundamental right. Beer-buying is of far less constitutional significance than the Second Amendment.

The final point made by the NRA is that since Heller and McDonald, lower courts have increasingly been using intermediate scrutiny, as advised by Justice Brennan in his concurrence, and explicitly rejected by the majority, to uphold bans on gun possession outside of the home and possibly even in one's summer home.

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