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With support from Herring, DoJ seeking rehearing in second amendment lawsuit

The Department of Justice is attempting to get the full 4th Circuit Court of Appeals judicial panel to rehear an appeal after a three-judge panel ruled that a federal law restricting sales of handguns to people younger than 21 is unconstitutional.

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. Both plaintiffs were students at the University of Virginia at the time the lawsuit was filed.

According to the lawsuit, both Hirschfeld and Marshall were turned away by local firearms dealers when they applied to purchase handguns. Marshall had attempted to purchase a pistol for protection as she worked in a remote area and had been in an abusive relationship in which she filed for a protection order.

In July the law in question was deemed unconstitutional by the 4th Circuit Court of Appeals, a decision that the plaintiffs’ attorney Elliott Harding stands by.

“The panel decision was thorough and well-reasoned and we believe it should remain intact,” Harding said. “We welcome the opportunity to present the argument to the entire 4th Circuit should the judges consider it worthy of additional review.”

The 4th Circuit decision follows a 2019 opinion from Senior U.S. District Judge Glen E. Conrad in which he 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, 2020. Following a 2-1 vote in July, the appeals court ruled that the 1968 law is unconstitutional. The ruling applies only to states that fall within the 4th Circuit: Virginia, Maryland, West Virginia, North Carolina and South Carolina.

Among the reasons cited in the 88-page opinion by Judge Julius Richardson was that lawmakers used misleading data in order to pass the age restrictions in the 60s. Richardson also wrote that 18-to-20-year-olds are protected under the Second Amendment and that the court must not “relegate either the Second Amendment or 18-to-20-year-olds to a second-class status.”

The dissenting vote came from Judge James Wynn Jr., who wrote in part that the court should instead defer gun decisions like this to legislators.

On Aug. 30, the DOJ filed a motion for a rehearing in front of the entire 15-judge panel of the Richmond-based 4th Circuit Court of Appeals. The decision has been subsequently supported via several gun violence groups and attorneys general from within the 4th Circuit, including Virginia’s Mark Herring.

In its motion, the DOJ argues that the three-judge panel “seriously misapplied principles of intermediate scrutiny in concluding that the age restriction is not reasonably tailored to enhancing public safety and reducing violent crime.”

“The majority acknowledged that evidence before Congress demonstrated that juveniles were disproportionately responsible for violent crime, but it mistakenly believed that this disproportionality could not justify the age restriction because the total percentage of juveniles involved in violent crime is below the statistical ‘threshold’ established by [the 1976 Craig v. Boren case], a case involving a law that differentiated on the basis of sex,” the motion reads.

The DOJ also argues that there is a “robust historical tradition of age-based limitations on the purchase and use of firearms by those under 21” and, at the time of the founding of the U.S., some states permitted people under 21 to bear arms when serving in organized militias.

“But that fact in no way suggests a recognition of an unfettered right of minors to purchase their own firearms for personal self-defense,” the DOJ motion reads.

Additional arguments include that the case has now been rendered moot due to both plaintiffs reaching the age 21 and beyond. Plaintiffs’ counsel requested that two additional parties — Corey Fraser, a 19-year old, and Battlefield Firearms, a federally licensed firearms dealer — be

added to the case in order to ensure a live controversy, which the DOJ opposes.

However, the DOJ argues that “even if this case were not moot, rehearing would be warranted to correct the panel’s erroneous merits decision, which strikes down an Act of Congress and conflicts with a decision of the 5th Circuit.”

The basis of this argument is that the statute does not bar persons between the ages of 18 and 21 from owning and possessing handguns, or from purchasing handguns in private sales by individuals, the DOJ writes.

“This modest restriction is consistent with the longstanding history of age

limitations on sales of firearms. In concluding that the Second Amendment conferred

an individual right to keep and bear arms, the Supreme Court in [the 2008 District of Columbia v Heller case] noted that ‘[l]ike most rights, the right secured by the Second Amendment is not unlimited,’” the DOJ argues.

In a recent joint amicus brief, Herring and Maryland Attorney General Brian Frosh also argue that the three-judge panel got the decision wrong.

“We think the decision to strike down this fifty-year-old gun violence prevention law was based on an inaccurate and incomplete reading of both the history of the law and the basis for limiting young people’s access to handguns,” Herring and Frosh said in a joint news release. “Handguns are easily concealed and often the weapon of choice for an individual seeking to harm themselves, an intimate partner, or commit a crime. Not only is this law constitutional, it’s important, and that’s why we’re fighting to defend it.”

The 4th Circuit Court of Appeals has yet to respond to DOJ’s motion for rehearing.


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