An appeal filed on behalf of two University of Virginia students who claim a federal law restricting sales of handguns to people younger than 21 is unconstitutional appeared to gain some support in a recent hearing in front of the 4th Circuit Court of Appeals.
The lawsuit, filed in October 2018 on behalf of then-20-year old Tanner Hirschfeld and then-18-year-old Natalia Marshall, asked the Western District Court of Virginia to declare the gun act unconstitutional and to stop enforcement of handgun and ammunition age restrictions.
Last year, Senior U.S. District Judge Glen E. Conrad granted a motion to dismiss, writing that the plaintiffs’ Second Amendment rights weren’t violated by a 1968 law that makes it illegal for anyone under the age of 21 to purchase a handgun.
The lawsuit was subsequently appealed to the 4th Circuit Court of Appeals where it was argued in front of a three-judge panel on Oct. 26.
Over the course of the approximately hour-long virtual hearing, U.S. Circuit Judges Julius Richardson and Steven Agee directed many of their questions at how the current restrictions would be interpreted by the Founding Fathers and the difficult logic of loopholes found in the act.
On behalf of Hirschfeld and Marshall, Charlottesville attorney Elliott Harding argued that the decision to prevent people under 21 from buying handguns is a class-based decision that is facially unconstitutional. Part of the basis for the federal restriction is that, at the time of ratification, people under 21 were not considered adults.
Harding argued that if the lower court’s position is upheld, then nearly every fundamental liberty could be subject to the age threshold established in the Founding-era, rather than the ages determined by the States and prevailing common-law.
Additionally, Harding argued that an opinion from the 5th Circuit Court of Appeals that helped guide Conrad’s decision is incorrect.
“To be honest with the court, it is extreme to find that a fundamental liberty that is protected by the Bill of Rights does not apply to law-abiding, able-minded adult citizens,” he said. “To find that a constitutional liberty does not apply at all is … against the precedent of the Supreme Court.”
Another point of contention for Harding is a loophole in the restriction that allows for family members to acquire and gift handguns to people under the age of 21, which does not require a background check and which seemingly runs afoul of gun safety restrictions.
During opposing arguments, Justice Department attorney Thais-Lyn Trayer argued in part that by restricting the sale of firearms from a licensed retailer the government is still successful in restricting access to firearms and thus limiting the ability for people under 21 to engage in violence.
“As the legislative history reveals, Congress intended that this would be, at most, a minor inconvenience and that minor children would be able to learn under the supervision and control of their parents the proper usage of a particularly dangerous form of firearm,” she said. “The handgun, which the legislative history exhaustively documents, is disproportionately responsible for a large portion of the commission of very serious crimes by a demographic under 21.”
During arguments, Richardson brought up the 2016 U.S. v Hosford case, which established the government’s reasoning for pushing for licensed sales of firearms as a way of increasing safety.
“You show up and say, in essence, no Hosford got it backwards, we can protect public safety by pushing people out of the federally licensed procedure,” Richardson said. “I have a difficult time understanding how you can make both of those arguments. Seems like to me like Hosford tells us that your argument is at least meritless if not disingenuous.”
Attorneys from the gun control organizations the Brady Campaign and the Giffords Law Center also argued on behalf of the government and amicus briefs they filed in support.
Toward the end of the hour-long hearing, the judges appeared mixed on whether or not the court should delve into policy decisions, with U.S. Circuit Judge James Wynn wondering whether the panel was limited by what they could rule on.
The panel did not indicate when they would issue a finding on the appeal. No further hearings are scheduled.