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Published United States Court of Appeals for The PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-2250 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. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Glen E. Conrad, Senior District Judge. (3:18−cv−00103−GEC) Argued: October 30, 2020 Decided: July 13, 2021 Amended: July 15, 2021 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. 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. 2 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 over- inclusive 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. 3 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 1 Plaintiffs also contend that the laws violate the equal-protection component of the Fifth Amendment’s Due Process Clause. Because the laws violate the Second Amendment, we need not resolve that question. 4 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 (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 2 The legislative record established that “juveniles account for some 49 percent of the arrests for serious crimes in the United States and minors account for 64 percent of the total arrests in this category.” S. Rep. No. 90-1097, at 77 (1968). “[M]inors under the age of 21 years accounted for 35 percent of the arrests for the serious crimes of violence including murder, rape, robbery, and aggravated assault” and 21 percent of the arrests for murder. 114 Cong. Rec. 12,279, 12,309 (1968) (statement of Sen. Dodd, Chairman, S. Subcomm. on Juvenile Delinquency). Congress found “a causal relationship between the easy availability of firearms other than a rifle or shotgun and juvenile and youthful criminal behavior.” Pub. L. No. 90-351, tit. IV, § 901(a)(6), 82 Stat. at 225–26. Federal officials 5 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 testified that “[t]he greatest growth of crime today is in the area of young people, juveniles and young adults” and that “[t]he easy availability of weapons makes their tendency toward wild, and sometimes irrational behavior that much more violent, that much more deadly.” Federal Firearms Act: Hearings Before the Subcomm. to Investigate Juvenile Delinquency of the S. Comm. on the Judiciary, 90th Cong. 57 (1967) (testimony of Sheldon S. Cohen). Law enforcement officers from New York City, Los Angeles, St. Louis, Chicago, Philadelphia, and Atlanta provided Congress with “statistics documenting the misuse of firearms by juveniles and minors,” which took on “added significance” because the “lawful acquisition of concealable firearms by these persons was prohibited by statute” in each of those cities.
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