On Thursday, the conservative United States Court of Appeals for the Fifth Circuit, in an opinion joined by two George W. Bush appointees, upheld a law banning federally licensed firearms dealers from selling guns to people under the age of 21. The plaintiffs in this case included the National Rifle Association.
In rejecting the NRA’s lawsuit, the court explained that restrictions on gun sales to young people are consistent with a legal tradition stretching all the way back to the framers:
We have summarized considerable evidence that burdening the conduct at issue—the ability of 18-to-20-year-olds to purchase handguns from FFLs—is consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment’s protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups’ ability to access and to use arms for the sake of public safety. More specifically, the present ban appears consistent with a longstanding tradition of age and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime. . . .
To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that
there is considerable historical evidence of age and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.
It is possible that the NRA will attempt to appeal this decision to the full Fifth Circuit, which includes many of the most severely conservative judges in the country. The Fifth Circuit ordered a cheerleader to pay sanctions after she sued the school district that required her to cheer for her alleged rapist. Several of its judges once claimed that a death row defendant whose lawyer slept through much of his trial was not denied his constitutional right to counsel. Two Fifth Circuit judges, Jerry Smith and Eugene Davis, ruled in favor of the oil industry in a major drilling moratorium case despite the fact that they both attended expense-paid “junkets for judges” sponsored by an oil-industry funded organization. Another Fifth Circuit judge, Edith Clement, serves on the board of this organization, despite an opinion from the federal judiciary’s ethics committee saying that she violated her ethical obligations by doing so.
Nevertheless, the presence of two Bush appointees on this panel — one of whom has her own record of severe conservatism — suggests that the NRA is unlikely to carry the day.