Justice Department says federal law prohibiting licensed dealers from selling handguns to adults under 21 violates the Second Amendment
The U.S. Department of Justice has concluded that a decades-old federal law prohibiting federally licensed firearms dealers from selling handguns to adults between the ages of 18 and 20 is unconstitutional.
In a 49-page opinion released September 17, the Justice Department’s Office of Legal Counsel determined that two provisions of federal law, 18 U.S.C. §§ 922(b)(1) and 922(c)(1), cannot Constitutionally be enforced against licensed dealers who sell handguns to otherwise law-abiding adults between 18 and 20.
The provisions, enacted as part of the Gun Control Act of 1968, generally prohibit federally licensed firearms dealers from selling handguns or handgun ammunition to anyone under 21.
The DOJ’s Office of Legal Counsel concluded that the restrictions violate the Second Amendment because 18- to 20-year-olds are among “the people” protected by the amendment and the government cannot identify a sufficient historical tradition supporting the modern restriction.
“Eighteen-year-olds may vote, serve on juries, be drafted, and face adult criminal penalties, including capital punishment,” Assistant Attorney General T. Elliot Gaiser said in announcing the opinion. “The Constitution protects the people’s right to keep and bear arms.”
The opinion comes as federal courts continue to grapple with the implications of the Supreme Court’s modern Second Amendment jurisprudence.
In New York State Rifle & Pistol Association v. Bruen, the Supreme Court established that when the Second Amendment’s plain text covers an individual’s conduct, the government must demonstrate that its firearm restriction is consistent with the nation’s historical tradition of firearm regulation.
The DOJ’s Office of Legal Counsel applied that framework to the federal age restriction.
Its conclusion was that adults between 18 and 20 fall within the Second Amendment’s reference to “the people,” and that handguns constitute “arms” protected by the amendment.
The DOJ then examined whether the federal government’s restriction could be justified by a historical tradition of similar firearm regulations.
The opinion concluded that it could not.
The Office of Legal Counsel specifically noted that it found no Founding-era tradition of prohibiting legal adults from purchasing firearms based on their age. Instead, the historical record included laws requiring young men beginning at age 18 to participate in militia service and furnish their own firearms.
The opinion states that, at the Founding, militia statutes “overwhelmingly required service beginning at 18” and required those enrolled to provide their own arms.
The DOJ’s conclusion comes against the backdrop of a longstanding disagreement among federal courts over whether the federal handgun age restriction is constitutional.
In 2023, a federal judge in Virginia ruled that the federal restrictions prohibiting licensed dealers from selling handguns to 18- to 20-year-olds violated the Second Amendment. That decision relied heavily on the Supreme Court’s Bruen framework and concluded that the government had not demonstrated a sufficient historical tradition supporting the restriction.
Other federal appellate courts have reached different conclusions.
The DOJ’s new opinion specifically discusses cases including Reese v. ATF, in which the Fifth Circuit invalidated the federal age restrictions, as well as decisions from other circuits that upheld age-based firearm restrictions.
The Office of Legal Counsel said subsequent Supreme Court decisions have changed the legal landscape and that some of the reasoning used by courts to uphold age restrictions is no longer consistent with the Supreme Court’s more recent Second Amendment guidance.
That means the Constitutional question surrounding firearm age restrictions remains significant even as the DOJ has now formally taken a position on the federal law.
The Justice Department’s announcement is significant, but it is important to understand what the opinion does — and does not — do.
The Office of Legal Counsel’s opinion does not constitute a Supreme Court ruling striking down the federal statute.
Instead, it represents the Justice Department’s legal conclusion that the federal government cannot Constitutionally impose criminal penalties on licensed dealers for selling handguns to otherwise-law-abiding adults between 18 and 20.
The DOJ said the challenged provisions “may not be enforced to impose criminal penalties” on dealers who make such sales.
The opinion also does not automatically invalidate state laws that impose their own age restrictions on firearm purchases.
Those laws remain subject to separate Constitutional challenges and litigation.
At the heart of the DOJ’s analysis is a straightforward constitutional question: Who are “the people” protected by the Second Amendment?
The Office of Legal Counsel concluded that adults between 18 and 20 are included.
The opinion points to the numerous responsibilities and rights that American law recognizes at age 18, including voting, jury service, military service and exposure to adult criminal penalties.
The DOJ argues that the federal government cannot treat an 18-year-old as an adult for purposes of Constitutional and civic responsibilities while simultaneously excluding that same person from the Second Amendment’s protections without a historical basis for doing so.
The opinion also emphasizes that the Second Amendment protects the right to acquire firearms, not merely the right to possess a firearm after someone else provides it.
That distinction is particularly important because federal law has continued to allow 18- to 20-year-olds to acquire handguns through certain private transactions even while prohibiting federally licensed dealers from selling them handguns.
The DOJ’s position could have implications far beyond the specific federal statute addressed in the opinion.
Across the country, states have adopted varying age restrictions governing the purchase, possession and carrying of firearms.
Some of those laws impose restrictions beyond the federal 21-year-old threshold for handgun purchases from licensed dealers.
The new DOJ opinion does not automatically resolve those disputes. But it adds a significant federal legal opinion to an already growing body of litigation examining whether age-based firearm restrictions are compatible with the Second Amendment.
For now, the Justice Department has made its position clear: the federal government cannot Constitutionally criminalize a licensed dealer for selling a handgun to an otherwise-law-abiding adult simply because that adult is 18, 19, or 20 years old.
As challenges to age-based firearm restrictions continue working their way through the federal courts, the question of when Americans become entitled to the full protection of the Second Amendment is likely to remain a major Constitutional issue.
Read more at CBS News.
