“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fourth Circuit judge Julius Richardson wrote a decision for a divided three-judge panel that struck down a federal law enacted more than 50 years ago that has stopped dealers from selling handguns to people under 21. The July 2021 decision is in Hirschfeld v Bureau of Alcohol, Firearms, Tobacco, and Explosives.
In 1968, after extensive hearings and as part of a crime control package, Congress passed a law that prohibited dealers and others from selling handguns commercially to people under 21. The law does not affect a parent’s ability to give such a gun to a son or daughter, and does not affect the sale of rifles or shotguns to anyone who is at least 18. The law’s preamble states that the “ease” with which handguns could be purchased by “juveniles without the knowledge and consent of their parents” and by others was a “significant factor” in the “prevalence of lawlessness and violent crime” The US Congress specifically found that people “under the age of 21” accounted for “35 percent” of arrests for “serious crimes of violence including murder, rape, robbery and aggravated assault” and that there was a “causal relationship between the easy availability” of handguns and ‘juvenile and youthful criminal behavior.”
Although courts have upheld the 1968 law and similar state statutes, a renewed challenge was filed to the federal law in 2019. Virginia federal Judge Glen Conrad, who was nominated by President George W Bush, dismissed the challenge as a matter of law based on past precedent, and the case was appealed to the Fourth Circuit.
Trump judge Julius Richardson wrote a 2-1 decision that reversed the district court and ruled that the 1968 law was unconstitutional under the Second Amendment. Commenting that “we refuse to relegate” the Second Amendment to “second-class status,” Richardson emphasized the Supreme Court’s ruling in the Heller case about the “fundamental” right to “keep and bear arms,” which he claimed applied to 18 to 20 year-olds based on the fact that the Second Amendment “does not” contain age restrictions and that in the 1700s, the federal and state governments “required 18-year-old men to be part of the militia and bring their own arms.”
Richardson went on to find that the 1968 law did not pass the required “intermediate scrutiny” of gun restrictions because the government did not show a “reasonable fit between” the restriction and “a substantial government objective.” He conceded that the government’s interest in “preventing crime, enhancing public safety, and reducing gun violence” are “not only substantial, but compelling.” Richardson maintained that the evidence was insufficient to show a “reasonable fit,” however, because the number of people under 21 who actually commit crimes with handguns is small and the evidence does not “sufficiently link” purchases from licensed dealers to such crimes.
Judge James Wynn strongly dissented. He began by criticizing the majority’s decision to “grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago” as justified neither by precedent nor by “the proper role of the judiciary in our democratic system.” In a country with a “Congress, bench, bar, academy, and electorate that are all attentive to the prerogatives of gun owners” and where “gun ownership rates are second to none,” he continued, Richardson’s lament about the threatened “second-class” status of Second Amendment rights “is simply surreal.” The courts properly balance both the individual’s right to bear arms while also “honoring” the public’s “right not to be shot,” Wynn wrote, under which the 1968 law should be upheld.
More specifically, Judge Wynn noted that in the 1968 law, “Congress was careful not to burden use, possession, or non-commercial sales” of handguns. This is not to mention the fact that it delays handgun purchase for only a few years and that even commercial sale of rifles and shotguns to 18-year-olds remained permissible, and those are the types of weapons more likely to have been possessed by people in militias in the 1700s. Wynn wrote that such a “longstanding” and narrow condition or qualification on the “commercial sale” of weapons may well fall within the category of limits that the Supreme Court in Heller suggested were “presumptively lawful.” In fact, he pointed out, “by 1923,” 22 states and DC had made 21 the minimum age to purchase handguns or other specific types of weapons.
Even assuming that the 1968 law imposes a “burden” on “conduct within the scope of the Second Amendment,” Wynn continued, it clearly passed the intermediate scrutiny test as properly applied. Wynn discussed for more than eleven pages the voluminous evidence accumulated by Congress before enacting the 1968 law, which also included evidence about accidents and suicides involving handguns and those under 21, and spent another six pages on modern research and statistics. Richardson’s contrary conclusion “ignores” much of this evidence, Wynn continued, as well as the legal requirement that the courts owe “substantial deference to the predictive judgments” of Congress and other legislatures, which are “far better equipped than the judiciary” to make such determinations. Richardson’s complaint about the lack of specific links to evidence about the misuse of guns sold by licensed dealers, Wynn wrote, imposes a much more demanding requirement on Congress than the caselaw supports, and “unfairly punishes Congress for not passing a more restrictive measure” banning all handgun possession by those under 21. Most important, Wynn stated, Richardson’s conclusion ignores decisions by “courts around the country,” including the Fifth and Seventh Circuits, which have upheld the 1968 law or similar statutes.
What will happen next with respect to Trump judge Richardson’s ruling remains unclear and emphasizes the importance of confirming Biden nominees expeditiously as part of our fight for our courts. It is quite possible that the Justice Department will ask the full Fourth Circuit to reconsider the ruling. A Biden nominee to the Fourth Circuit is pending before the Senate right now, which could well make a difference in this or future cases. As Judge Wynn concluded, quoting conservative Fourth Circuit Judge J. Harvie Wilkinson, federal judges should not “[d]isenfrachis[e] the American people on this life and death subject” of gun safety by themselves making “decisions that have historically been assigned to other, more democratic actors” like Congress.