RICHMOND, Va. (CN) — A Fourth Circuit panel seemed open to the idea of rolling back the federal 21-year age limit to purchase a handgun during a hearing Friday afternoon.
The dispute involves two Virginians, Tanner Hirschfeld and Natalia Marshall, both under the age of 21, who sought to purchase handguns from a federally licensed firearms dealer. They were rejected under the Gun Control Act of 1968 and filed a federal lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives, but U.S. District Judge Glen Conrad dismissed their case last year.
Conrad, a George W. Bush appointee, relied on Congress' history of regulating firearms sales, as well as medical research into the mental capacity of those under 21 and their predisposition for poor judgement that leads to more crimes being committed, as grounds to toss the lawsuit.
“The challenged laws also do not prevent handgun purchases from non-FFL [federal firearms licensee] parties, and alternatively, 18-to-20-year-olds are permitted to receive handguns from their parents,” Conrad wrote a year ago, noting there were other avenues for the plaintiff’s to achieve their goal.
But at the Fourth Circuit hearing Friday, U.S. Circuit Judges Julius Richardson, a Donald Trump appointee, and Steven Agee, a George W. Bush appointee, appeared more interested in how the Founding Fathers would examine the restrictions currently in place.
“Currently minor means less than 18 to buy cigarettes but it’s 21 to buy alcohol,” Richardson said during the remote hearing. “At the time of the founding, firearm possession was permitted for those under the age of 21.”
Hirschfeld and Marshall’s Charlottesville-based attorney Elliott Harding agreed and noted the Founding Fathers, and the Constitution they created, included age restrictions on things like political office, something they could have added to gun ownership if they saw fit.
“If the founders wanted to put an age limit on the Second Amendment they knew how to do so,” Harding said. “The people could have added an age limit via amendment as well.”
The attorney also pointed to issues raised in Conrad’s opinion, namely that the plaintiffs and others like them have the ability to acquire handguns from family members or through straw purchases, neither of which require background checks, creating a loophole that runs counter to the broader gun control movement’s goal of safe purchases.
Richardson was also perplexed by this scenario and pointed to the 2016 Fourth Circuit decision in U.S. v. Hosford, which established the government’s rationale for pushing gun purchases towards licensed dealers.
“But you show up and say, in essence, we’ve got it backwards,” the judge said. “We can protect public safety by pushing people out of that procedure.”
But Justice Department attorney Thais-Lyn Trayer pushed back on that assessment in defending the age limit for handguns bought from a licensed dealer.
“If there are multiple avenues for a particular demographic being able to acquire handguns, they go on to misuse and engage in violent crimes,” Trayer said. “If the government restricts one of those avenues, the government is still getting to the underlying purpose.”
Trayer was joined by attorneys from both the Brady Campaign and the Giffords Law Center, two national gun control organizations that also argued in support of the restrictions as amici.
Representing the Giffords Law Center, attorney Angela N. Ellis with Sullivan & Cromwell argued that the court should not rule for the plaintiffs considering the legislative history of gun control in the U.S.
“It's extensive,” she said, pointing to how Congress “did their job here.”
U.S. Circuit Judge James Wynn, a Barack Obama appointee, also wondered about the extent to which courts should step on lawmakers’ toes in this dispute.
“What is the role of the courts here when you’re delving into these policy decisions?” he asked. “When do we do that? Are we just limited here to the Second Amendment?”
The judges did not indicate when they intend to issue a ruling.
In a text message following the hearing, Harding said he hoped the panel would see his clients as adults who are fully protected by the Constitution like everyone else.
“They aren't second-class citizens and self-defense isn't a second-class right,” the attorney added.
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