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Hirschfeld v. The Bureau of Alcohol, Tobacco, Firearms and Explosives

United States District Court, W.D. Virginia, Charlottesville Division

October 4, 2019




         Plaintiffs Tanner Hirschfeld and Natalia Marshall (the "Prospective Buyers") challenge the constitutionality of federal criminal statutes making it unlawful for federal firearms licensees ("FFLs") to sell handguns and handgun ammunition to people under 21 years of age, 18 U.S.C. §§ 922(b)(1), (c), and federal regulations implementing those statutory provisions, 27 C.F.R. §§ 478.99(b)(1), 478.124(a), 478.96(b) (together, the "Challenged Laws"). The Prospective Buyers seek a declaratory judgment that the Challenged Laws violate their Second Amendment rights to keep and bear arms, and also violate their Fifth Amendment rights to equal protection of the law. On that basis, the Prospective Buyers also seek to enjoin enforcement of the Challenged Laws by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"); Thomas E. Brandon, in his official capacity as the Deputy and Acting Director of ATF; and William P. Barr, [1] in his official capacity as Attorney General of the United States (together, the "Government").

         The Government moved to dismiss under Rule 12 of the Federal Rules of Civil Procedure. ECF No. 15. The Prospective Buyers and the Government agree there is no dispute of material fact in this case and therefore no need for discovery or a trial, as the suit can be resolved on the legal merits and the briefs. ECF No. 26 at 2. The Prospective Buyers cross-moved for summary judgment under Rule 56. ECF No. 31. Amici parties Brady and the Giffords Law Center to Prevent Gun Violence (together, the "Amici Parties") filed briefs in support of the Government. ECF Nos. 28, 38. For the reasons set forth below, the court will grant the Government's motion to dismiss and deny the Prospective Buyers' motion for summary judgment.


         The Prospective Buyers are two adult citizens under the age of twenty-one. Compl ¶¶ 24, 30. Both Prospective Buyers wish to purchase a handgun for self defense. Id ¶¶ 27, 34. Each of the Prospective Buyers attempted to purchase handguns and ammunition from local FFLs, but were denied due to their age pursuant to the Challenged Laws. Id. ¶¶ 25, 36. Plaintiffs allege that but for the Challenged Laws, both Prospective Buyers would be permitted to purchase handguns. Id. ¶¶ 24-26, 29, 36-37.

         Statutory Background

         Together, the Challenged Laws prevent adults under the age of 21 from purchasing handguns from FFLs. Under 18 U.S.C. § 922(b)(1), 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.

27 C.F.R. § 478.99(b)(1) contains substantively identical language.[2] 18 U.S.C. § 922(c) provides in relevant part that: "a licensed importer, licensed manufacturer, or 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 a rifle, I am twenty-one years or more of age...."

         27 C.F.R. § 478.124(a) mandates that "[a] licensed importer, licensed manufacturer, or licensed dealer shall not sell or otherwise dispose, temporarily or permanently, of any firearm to any person, other than another licensee, unless the licensee records the transaction on a firearms transaction record, Form 4473...." 27 C.F.R. § 478.96(b) imposes the same restrictions on out-of-state and mail order sales. Form 4473 requires that an FFL enter a prospective firearm buyer's or transferee's birthdate (Box 7) and describe the type of firearm (Box 16), and states that the information provided "will be used to determine" whether the buyer or transferee is "prohibited from receiving a firearm." ATF, Form 4473, available at

         Legislative History

         The Challenged Laws arose from a "multi-year inquiry into violent crime that included 'field investigation and public hearings.'" Nat'l Rifle Ass'n. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms. & Explosives, 700 F.3d 185, 198 (5th Cir. 2012), rehearing en banc denied, 714 F.3d 334 (5th Cir. 2013), cert, denied, 571 U.S. 1196 (2014) ("BATFE") (quoting S. Rep. No. 88-1340, at 1 (1964)). Congress found that young people were responsible for a significant portion of crime nationally. See, e.g., S. Rep. No. 90-1097, at 77 (1968) ("[J]uveniles account for some 49 percent of the arrests for serious crimes in the United States and minors account for 64 percent of [such] total arrests"). Law enforcement submitted "statistics documenting the misuse of firearms by juveniles and minors," which "[took] on added significance when one considers the fact that in each of the jurisdictions ... the lawful acquisition of concealable firearms by these persons was prohibited by statute," S. Rep. No. 89-1866, at 58-59 (1966), and in light of the "serious problem of individuals going across State lines to procure firearms which they could not lawfully obtain or possess in their own State and without the knowledge of their local authorities," Id. at 19. That inquiry 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." Id. at 4-7. Indeed, the handgun's "size, weight, and compactness make it easy to carry, to conceal, to dispose of, or to transport," and "[a]ll these factors make it the weapon most susceptible to criminal use." Id

         Congress further found a "causal relationship between the easy availability" of handguns "and juvenile and youthful criminal behavior, and that such firearms have been widely sold by federally licensed importers and dealers to emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior." Pub. L. No. 90-351, § 901(a)(6), 82 Stat. 197, 225-226. Congress focused on the "clandestine acquisition of firearms by juveniles and minors," which it found posed "a most serious problem facing law enforcement and the citizens of this country." S. Rep. No. 90-1097, at 79.

         Congress "designed" the Challenged Laws "to meet this problem and to substantially curtail it." Id. But Congress did not intend to enact a whole cloth ban on minors owning handguns: "[A] minor or juvenile would not be restricted from owning, or learning the proper usage of [a] firearm, since any firearm which his parent or guardian desired him to have could be obtained for the minor or juvenile by the parent or guardian." S.Rep. No. 89-1866, at 58-59. Minors, therefore, could possess handguns if their parents deemed them responsible enough to do so. "At the most," the Challenged Laws "cause minor inconveniences to certain youngsters who are mature, law abiding, and responsible, by requiring that a parent or guardian over 21 years of age make a handgun purchase for any person under 21." 114 Cong. Rec. 12279, 12309 (1968) (statement of Sen. Thomas J. Dodd, Chairman, Sen. Subcomm. on Juvenile Delinquency).

         History of Age-Based Firearms Regulations

         Legislatures enacted age-based restrictions on firearm purchases, use, and possession before the Challenged Laws, however. Over the course of the nineteenth and early twentieth century, many states enacted restrictions on gun ownership and use by certain categories of people for public safety reasons-including those under a certain age. By the 1920s, roughly half of the states had set 21 as the minimum age for the use and possession certain firearms. See ECF No. 16-2 (collecting statutes). "Like the federal legislation that followed, state regulations sometimes reflected concerns that juveniles lacked the judgment necessary to safely possess deadly weapons, and that juvenile access to such weapons would increase crime." United States v. Rene E, 583 F.3d 8, 14 (1st Cir. 2009). Indeed, "a number of states enacted similar statutes prohibiting, the transfer of deadly weapons-often expressly handguns-to juveniles." Id.

         Courts of the time upheld these types of laws. See, e.g., Parman v. Lemmon. 244 P. 227, 228 (Kan. 1925) (observing that "many of the states" had laws similar to that making it a . misdemeanor to "sell, trade, give, loan or otherwise furnish any pistol, revolver or toy pistol... to any minor" as "protective laws enacted to prevent occurrences" like the accidental shooting in that case); State v. Quail. 92 A. 859, 859 (Del. Gen. Sess. 1914) (refusing to dismiss indictment based on statute criminalizing "knowingly sell[ing] a deadly weapon to a minor other than an ordinary pocket knife"); State v. Allen, 94 Ind. 441, 442 (1884) (reversing dismissal of indictment for "unlawfully bartering] and trad[ing] to ... a minor under the age of twenty-one years, a certain deadly and dangerous weapon, to wit: a pistol, commonly called a revolver"); Tankersly v. Commonwealth, 9 S.W. 702, 702 (Ky. 1888) (indictment for selling a deadly weapon to a minor); State v. Callicutt. 69 Tenn. 714, 716-17 (1878) (affirming that "the acts to prevent the sale, gift, or loan of a pistol or other like dangerous weapon to a minor," were "not only constitutional as tending to prevent crime but wise and salutary in all its provisions," and denying that "the right 'to keep and bear arms' ... necessarily implies the right to buy or otherwise acquire [arms], and the right in others to give, sell, or loan to him"); Coleman v. State, 32 Ala. 581, 582-83 (1858) (affirming conviction under statute "mak[ing] it a misdemeanor to 'sell, or give, or lend, to any male minor,' a pistol").

         Similarly, legal scholars of the time accepted that "the State may prohibit the sale of arms to minors." Thomas M. Cooley, Treatise on Constitutional Limitations 740 n.4 (5th ed. 1883); see also District of Columbia v. Heller.554 U.S. 570, 616-18 (2008) (describing Professor Cooley's work as "massively popular" and citing it as persuasive authority on Founding-era attitudes on the Second Amendment). Professor Cooley also recognized that "the want of capacity in infants" could justify "a regulation ... restricting their rights [and] privileges" as a class. Cooley, supra, at 486. And evidence suggests that full adulthood, at the time of the Founding, was not reached until age 21. William Blackstone, 1 Commentaries On The Laws Of England 463 (1st ed. 1765) ("So that full age in male or female, is twenty one years . . . who till that time ...

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