If you’re a law abiding adult with no felonies, you have a choice when you purchase a firearm. You can buy a rifle or a pistol. Well, a shotgun, too, but you’ll get my point in a minute. You can choose between a small gun that you might carry concealed or a long gun that you might use to hunt or shoot long distance targets. You have that choice, right? Wrong. Federal statute 18 U.S.C. 922(b)(1) prohibits anyone under the age of 21 from purchasing a pistol from a licensed firearms dealer. Until now.
Hirschfeld v. ATF
In this federal case, Hirschfeld v. ATF, the plaintiffs sued the ATF and the Attorney General, arguing that the law violates their 2nd Amendment rights. The main argument is that an 18 year old who is lawfully able to buy a firearm can purchase a rifle, but not a pistol. That’s the current law. Here’s the actual wording of the statute.
So there’s two parts to this statute. The statute addresses “Licensed” gun dealers, or what we call ourselves, “FFLs”, which stands for “Federal Firearms License”. We cannot sell anyone any gun or any ammo if they are under 18. If they are over 18, but under 21, we cannot sell them pistols or pistol ammo. We can sell them a rifle and rifle ammo.
Make sense? Here’s a picture to help.
The item on the left is what’s known as an AR-10, cousin to the classic AR-15, but chambered in .308 caliber, with a 30 round magazine (please don’t say “clip”). On the right is a Walther .22 pistol. The AR-10 is loud as hell, kicks like a mule, and can knock down a 250 pound deer at 400 yards (or more if you take our Precision Rifle Course 🙂 ). The .22 makes a lot of noise, does not kick at all, and could kill a person at point blank range if the shooter was a very good shot.
Appellate Court Ruling: Rifle or Pistol
On July 13th, a three judge panel of the 4th Circuit Federal Appeals Court agreed that the statute makes no sense, and is a violation of the 2nd Amendment. Indeed, the panel added:
"Virtually every other constitutional right applies whatever the age. And the Second Amendment is no different."
It’s rare that the courts act to protect the 2nd Amendment these days, so we are very appreciative of this decision. However, it doesn’t end here. No, the government will most likely appeal this decision, and take it to the Supreme Court. We welcome that battle! For now, in the 4th district, this decision removes the ban on FFLs selling guns and ammo to 18-year-old citizens.
Now, Can an FFL Sell an 18 Year Old a Rifle?
Here’s where our legal system gets sticky. Don’t get me wrong, I love our system. It’s the least imperfect system in the world, but it still gets murky in places like this one.
If you own a rifle, you can sell (or gift) that rifle to an 18 year old as a private transaction. It’s none of the government’s business what two law abiding citizens buy, sell, or trade with one another. THAT is the infamous “gun show loophole” you hear about all the time. Let me explain that first.
The “Gun Show Loophole”
If you go to a gun show, and see some guns you want to buy, and give a “wink wink” at the gun dealer, you could “meet him in the parking lot” and buy those guns, no matter what kind of hardened criminal you are, without a background check. That’s the truth. But it’s not the whole truth. If that gun dealer did that transaction, he risks losing his FFL, and going to jail on several felony counts. Now, if you’re gonna traffic illegally in guns, you don’t set up a business, register with the ATF, get a license, and then go out and break every ATF rule in existence. I’m sure this scenario does actually occur, but once again, it’s criminals breaking the law, not law abiding citizens doing legit business with consumers.
Back to the point. Yes, technically, legally, the decision declares the statute unconstitutional, so FFLs could sell 18, 19, and 20 year old law abiding citizens pistols and pistol ammo. However, and here’s the murky part, what FFL wants to be the example? Answer: nobody. No FFL is going to risk their license to make one sale, or 10 or 20. Until the SCOTUS hears – or refuses to hear! – and rules on this case and statute, no FFL is going to take that chance.
The Next Steps in the Courts
“The decision by the panel is likely to be appealed to the full 4th Circuit. The court sent the case back to a federal district court for further proceedings.” Remember, this decision was handed down by a three judge panel, not the full court. Now it goes back to the full court, and if the full court agrees, then the ATF & DOJ will most likely appeal to the Supreme Court.
This case is a prime example of why “elections have consequences.” Elected politicians appoint judges. Judges are human, and have political leanings, for or against the US Constitution, despite the fact that every judge takes an oath to uphold the Constitution. This case is a prime example of why every citizen should stay aware and involved in local and national politics. In other words, vote.