Brown v. Bureau of Alcohol, Tobacco, Firearms and Explosives

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

STEVEN ROBERT BROWN,

BENJAMIN WEEKLEY,

SECOND AMENDMENT FOUNDATION, and

WEST VIRGINIA CITIZENS DEFENSE

LEAGUE,

Plaintiffs,

v. CIVIL ACTION NO. 1:22-CV-80

(Chief Judge Kleeh)

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES,

MERRICK GARLAND, U.S. Attorney General,

in his official capacity, and

STEVEN DETTELBACH, Director

of the ATF, in his official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Defendants’ Motion to Dismiss

and Plaintiffs’ Motion for Summary Judgment. ECF Nos. 23, 28. For

the reasons that follow, Defendants’ Motion to Dismiss is DENIED

and Plaintiffs’ Motion for Summary Judgment is GRANTED.

I. FACTUAL BACKGROUND

A. Undisputed Facts

This case requires the Court to assess the protected right of

the people under the Second Amendment to the Constitution to keep

and bear arms. U.S. Const. amend. II. Plaintiffs Robert Brown

(“Brown”) and Benjamin Weekley (“Weekley”), individuals, are “law-

abiding, responsible adult citizens who wish to purchase

MEMORANDUM OPINION AND ORDER

handguns.” ECF No. 11, First Am. Compl. ¶¶ 2, 7-8; see also ECF

No. 28-3, Brown Decl.; ECF No. 28-2, Weekley Decl. Brown and

Weekley are citizens of West Virginia and the United States of

America and are between the ages of eighteen and twenty-one. Am.

Compl. ¶¶ 7-8. Brown and Weekley, as law-abiding, responsible

adult citizens, would purchase handguns and handgun ammunition

from Federal Firearms Licensees (“FFLs”) but for the right

proscribed by 18 U.S.C. §§ 922(b)(1) and (c)(1). Id. ¶¶ 1-3.

Plaintiffs Second Amendment Foundation (“SAF”)1 and West

Virginia Citizens Defense League (“WVCDL”) are organizational

plaintiffs. Id. ¶¶ 9-10. WVCDL “is [a] nonpartisan, nonprofit

membership organization formed in 2008 with a purpose of

preserving, expanding, and perpetuating the right to keep and bear

arms in the State of West Virginia.” Id. ¶ 10. WVCDL includes

adult members between the ages of eighteen years and twenty years

who, absent the handgun ban, would purchase handguns and the

associated ammunition. Id. Brown and Weekley are members of both

organizational plaintiffs. Id. ¶¶ 7-8.

Plaintiffs assert claims against Defendants Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”); Steven

1 In the briefings, the parties agree to the voluntary dismissal,

without prejudice, of SAF due to its involvement in Reese v. ATF,

No. 6:20-cv-01438 (W.D. La. May 5, 2021). Therefore, SAF is

DISMISSED WITHOUT PREJUDICE from this action and is not part of

the Court’s opinion herein.

MEMORANDUM OPINION AND ORDER

Dettelbach, the Director of ATF; and Merrick Garland, Attorney

General of the United States, alleging injuries-in-fact due to the

statutory prohibition against 18-to-20-year-olds from purchasing

handguns and handgun ammo. Id. ¶¶ 11-13. Brown and Weekley both

attempted to purchase handguns from FFLs in and around June and

July 2022. Id. ¶¶ 18-30. Each FFL refused the sales because they

were under twenty-one years of age. Id.

B. Defendants’ Response

For purposes of Plaintiffs’ Rule 56 motion, the Court treats

these facts as undisputed. Defendants filed a Response to

Plaintiffs’ Statement of Undisputed Material Facts in Support of

Plaintiffs’ Motion for Summary Judgment [ECF No. 34] pursuant to

this District’s Local Rule of Civil Procedure 7.02. However,

Defendants’ submission does not create any genuine issues of

material fact sufficient to preclude consideration of summary

judgment. That Response lists eight (8) factual statements from

Plaintiffs’ motion and, for six (6) of those, simply offers

“Statement disputed. Defendants have no knowledge as to the truth

of this statement.” ECF No. 34. Simply denying any knowledge

about factual statements made in a sworn declaration does not carry

a non-movant’s burden under Rule 56. Another part of the response

simply notes Defendants’ inability to verify factual assertions.

Id.

MEMORANDUM OPINION AND ORDER

Although the Court is required to make all inferences in the

light most favorable to the non-movant, Defendants’ burden in

facing a Rule 56 motion is not insignificant. As Judge Bailey

summarized,

[a]dditionally, the party opposing summary

judgment “must do more than simply show that

there is some metaphysical doubt as to the

material facts.” [Matusushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586

(1986)]. That is, once the movant has met its

burden to show absence of material fact, the

party opposing summary judgment must then come

forward with affidavits or other evidence

demonstrating there is indeed a genuine issue

for trial. Fed. R. Civ. P. 56(c); Celotex

Corp., 477 U.S. at 323–25; Anderson, 477 U.S.

at 248. “If the evidence is merely colorable,

or is not significantly probative, summary

judgment may be granted.” Anderson, 477 U.S.

at 249 (citations omitted). Although all

justifiable inferences are to be drawn in

favor of the non-movant, the non-moving party

“cannot create a genuine issue of material

fact through mere speculation of the building

of one inference upon another.” Beale v.

Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

Anderson v. Profrac Mfg., LLC, No. 5:20-CV-227, 2022 WL 2902846,

at *2 (N.D.W. Va. May 25, 2022) (Bailey, J.). Defendants do not

even engage in speculation based on stacked inferences. They

simply “dispute” Plaintiffs’ factual statement averring lack of

knowledge to “verify.” Rule 56 demands more. Moreover, upon

review of the docket, neither party engaged in any discovery

efforts, nor argued that additional time was needed for discovery.

MEMORANDUM OPINION AND ORDER

See Rule 56(d). Thus, there is no genuine issue of material fact

present here. See Rule 56(e)(2).

II. PROCEDURAL HISTORY

On August 30, 2022, Brown, pro se, filed suit against the

ATF, the Director, the Attorney General, and Patrick Morrisey, the

West Virginia Attorney General. ECF No. 1. On the same date,

summonses were issued to the initial defendants and notice of

general guidelines for appearing pro se in federal court was given.

ECF Nos. 3, 4. The next day, the case was referred to the Honorable

Michael J. Aloi, United States Magistrate Judge, for written orders

or reports and recommendations on dispositive matters and for

decisions of any other matters that may arise. ECF No. 5; 28

U.S.C. §§ 636(b)(1)(A), 636(b)(1)(B); L.R. Civ. P. 7.02(c), 72.01.

On September 23, 2022, Brown’s counsel filed a notice of

appearance and moved for pro hac vice admission for a visiting

attorney. ECF Nos. 8-10. On September 27, 2022, the First Amended

Complaint for Declaratory Judgment and Injunctive Relief was filed

on behalf of Brown, Weekley, SAF, and WVCDL, pleading allegations

against Defendants ATF, Dettelbach, and Garland. ECF No. 11. The

next day, summonses were issued to those defendants. ECF No. 12.

Because Plaintiffs retained counsel; the Court vacated its

referral order and terminated the referred status of the case.

ECF No. 14.

MEMORANDUM OPINION AND ORDER

On December 12, 2022, Defendants, by counsel, filed Motion to

Dismiss Plaintiffs’ First Amended Complaint. ECF Nos. 23, 24.

Plaintiffs timely responded in opposition to Defendants’ motion

and moved for summary judgment. ECF Nos. 25, 27, 28, 29.

Defendants replied in support of their motion to dismiss and in

opposition to Plaintiffs’ motion for summary judgment. ECF Nos.

30, 31, 33, 34, 35. Plaintiffs replied in support of their motion

for summary judgment and in opposition to Defendants’ motion. ECF

No. 36. Plaintiffs and Defendants have filed supplemental

authority during the pendency of their motions. ECF Nos. 37, 38,

39. Thus, the motions are fully briefed and ripe for review.

III. LAW

A. Legal Standards

1. Motion to Dismiss

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure,

a party may move to dismiss a claim for lack of subject-matter

jurisdiction. A defendant challenges subject matter jurisdiction

in two ways: (1) “that a complaint simply fails to allege facts

upon which subject matter jurisdiction can be based,” or (2) “that

the jurisdictional allegations of the complaint [are] not true.”

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)

(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A

challenge of subject matter jurisdiction in the first manner, as

MEMORANDUM OPINION AND ORDER

Defendants contend here, conjures “the same procedural protection

. . . [the plaintiff] would receive under a Rule 12(b)(6)

consideration.” Id. (citing Adams, 697 F.2d at 1219).

Under Rule 12(b)(6), a defendant may move for dismissal upon

the ground that a complaint does not “state a claim upon which

relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,

a court “must accept as true all of the factual allegations

contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d

181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007)). A court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan v. Allain,

478 U.S. 265, 286 (1986).

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 942, 952 (4th Cir. 1992).

MEMORANDUM OPINION AND ORDER

2. Motion for Summary Judgment

Summary judgment, however, is appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

movant “bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions

of ‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18. Summary judgment is proper “[w]here the

record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there [being] no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The Court views the evidence in the light

most favorable to the non-moving party and draws any reasonable

inferences in the non-moving party’s favor. See Fed. R. Civ. P.

56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en

banc).

MEMORANDUM OPINION AND ORDER

B. Applicable Law

“A well regulated Militia, being necessary to the security of

a free State, the right of the people to keep and bear Arms, shall

not be infringed.” U.S. Const. amend. II. In District of Columbia

v. Heller, 544 U.S. 570 (2008), the Supreme Court of the United

States recognized that the Second Amendment codified a pre-

existing “right of an ordinary, law-abiding citizen to possess a

handgun in the home for self-defense.” New York State Rifle &

Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022)

(citing Heller, 544 U.S. at 570). This right, however, is not

unlimited: our Nation’s historical tradition teaches that there

are certain “longstanding,” “presumptively lawful regulatory

measures” that the Second Amendment did not abrogate. Heller, 554

U.S. at 626–27, n.26. The Heller court then set forth a two-step

framework for assessing Second Amendment claims that combined a

historical analysis with means-end scrutiny. See United States v.

Pruess, 703 F.3d 242, 245 (4th Cir. 2012) (citing Heller, 544 U.S.

at 680).

In Bruen, the Supreme Court “kep[t] with Heller” but

“decline[d] to adopt that two-part approach,” finding it to be

“one step too many.” Bruen, 142 S. Ct. at 2126-27. Bruen rejected

any “means-end scrutiny” entirely. Id. at 2125-26. “Bruen

effected a sea change in Second Amendment law.” Maryland Shall

MEMORANDUM OPINION AND ORDER

Issue, Inc. v. Moore, 2023 WL 8043827, at *2 (4th Cir. Nov. 21,

2023) (Richardson, J.). Bruen’s holding is more rooted in

textualism and originalism: if the “plain text [of the Second

Amendment] covers an individual’s conduct, [then] the Constitution

presumptively protects that conduct.” Bruen, 142 S. Ct. at 2125-

26. “To justify its regulation, the government may not simply

posit that the regulation promotes an important interest.” Id.

To demonstrate the regulation of that conduct is within the bounds

of the Second Amendment, “the government must demonstrate that the

regulation is consistent with the Nation’s historic tradition of

firearm regulation. Only if a firearm regulation is consistent

with the Nation’s historical tradition may a court conclude that

the individual’s conduct falls outside the Second Amendment’s

‘unqualified command.’” Id. at 2126. As Heller also focused on

the Nation’s traditional understanding of the Second Amendment,

this was not considered a novel pronouncement. See id. at 2131

(“The test that we set forth in Heller and apply today requires

courts to assess whether modern firearms regulations are

consistent with the Second Amendment’s text and historical

understanding.”).

In Bruen, the Supreme Court emphasized that the petitioners

were “two ordinary, law-abiding, adult citizens,” making them

“part of ‘the people’ whom the Second Amendment protects.” Id. at

MEMORANDUM OPINION AND ORDER

2119. “Like most rights, the right secured by the Second Amendment

is not unlimited. From Blackstone through the 19th-century cases,

commentators and courts routinely explained that the right was not

a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose . . . .” Heller, 554 U.S. at

626.

“Although its meaning is fixed according to the

understandings of those who ratified it, the Constitution can, and

must, apply to circumstances beyond those the Founders

specifically anticipated.” Bruen, 142 S. Ct. at 2132 (internal

citation omitted). Indeed, courts are instructed to use analogies

to “historical regulations of ‘sensitive places’ to determine that

modern regulations prohibiting the carry of firearms in new and

analogous sensitive places are constitutionally permissible.” Id.

(emphasis in original).

The Fourth Circuit recently summarized the task before this

Court. The Supreme Court

supplied an analysis centered on the Second

Amendment’s text and history. [Bruen,] 142 S.

Ct. at 2126–30. The Court explained that

“when the Second Amendment’s plain text covers

an individual’s conduct, the Constitution

presumptively protects that conduct.” Id. at

2126. At that point, the challenged

regulation is unconstitutional unless the

government can show that “the regulation is

consistent with this Nation’s historical

tradition of firearm regulation.” Id. Only

then “may a court conclude that the

MEMORANDUM OPINION AND ORDER

individual’s conduct falls outside the Second

Amendment’s ‘unqualified command.’” Id.

(quoting Konigsberg v. State Bar of Cal., 366

U.S. 36, 50 n.10 (1961)).

Maryland Shall Issue, Inc., 2023 WL 8043827, at *3.

With this context, 18 U.S.C. § 922(b)(1) makes it

unlawful for any licensed importer, licensed

manufacturer, licensed dealer, or licensed

collector to sell or deliver [] any firearm or

ammunition to any individual who the licensee

knows or has reasonable cause to believe is

less than eighteen years of age, and, if the

firearm, or ammunition is other than a shotgun

or rifle, or ammunition for a shotgun or

rifle, to any individual who the licensee

knows or has reasonable cause to believe is

less than twenty-one years of age.

18 U.S.C. § 922(c)(1) prohibits FFLs from selling firearms to those

who do not appear in person unless the buyer submits a sworn

statement affirming he or she is “twenty-one years or more of age”

“in the case of any firearm other than a shotgun or rifle.” ATF’s

implementing regulations are 27 C.F.R. § 478.99(b) and § 478.124.

Chief Counsel of the ATF wrote an opinion letter in 1983 explaining

that FFLs

are prohibited from selling or delivering

handguns to person under the age of

21. However, a minor or juvenile is not

prohibited by Federal law from possessing,

owning, or learning the proper usage

of firearms since any firearm that the parents

or guardian desire the minor to have can be

obtained by the parents or guardian.

MEMORANDUM OPINION AND ORDER

ECF No. 24-1, Ex. A, Opinion of the Chief Counsel of ATF, No 23362

(Dec. 5, 1983) (hereinafter the “ATF Opinion Letter”).

IV. DISCUSSION

Because adults between eighteen and twenty years old are

statutorily precluded by 18 U.S.C. §§ 922(b)(1) and (c)(1) from

buying handguns and handgun ammunition from a licensed dealer,

Plaintiffs challenge the statutes as facially unconstitutional and

as applied to them. Plaintiffs also request an injunction barring

enforcement of the statute for the same reason.

Defendants filed the pending motion to dismiss pursuant to

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure

and argue Plaintiffs lack standing to bring this action, and even

if they have standing, the historical background of the Second

Amendment supports the government’s restriction of the purchase of

handguns and handgun ammunition to lawful adult citizens over the

age of twenty-one. ECF Nos. 23, 24.

Plaintiffs filed their motion for summary judgment and

response in opposition to Defendants’ motion to dismiss,

contending they have standing to sue and 18 U.S.C. §§ 922(b)(1)

and (c)(1) are both facially unconstitutional and unconstitutional

as applied to them because the statutes are inconsistent with the

Nation’s historical tradition. ECF Nos. 28, 29.

MEMORANDUM OPINION AND ORDER

A. Standing

The Court, of course, starts with jurisdiction particularly

given Defendants advance a standing challenge to Plaintiffs’

claims. The judicial power vested by Article III of the

Constitution extends only to “Cases” and “Controversies.” U.S.

Const. art. III, § 2, cl. 1. Because federal court jurisdiction

is limited to cases or controversies, plaintiffs must “establish

they have standing to sue.” Clapper v. Amnesty Int’l USA, 568

U.S. 398, 408 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818

(1997)). Thus, the Court must first address Plaintiffs’ standing

to bring suit as challenged in Defendants’ motion. See Baehr v.

Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir.

2020) (“Article III standing is ‘part and parcel of the

constitutional mandate that the judicial power of the United States

extend only to “cases” and “controversies”.’”) (internal citation

omitted). Article III standing is proven when plaintiffs have

established an injury-in-fact, causation, and redressability.

Baehr, 953 F.3d at 252 (citing Lujan v. Defs. Of Wildlife, 504

U.S. 555, 560-61 (1992)). The burden to establish standing is on

the party asserting it. Lujan, 504 U.S. at 560-61.

“An association has associational standing when at least one

of its ‘identified’ members ‘would otherwise have standing to sue

in their own right, the interests at stake are germane to the

MEMORANDUM OPINION AND ORDER

organization’s purpose, and neither the claim asserted nor the

relief requested requires the participation of individual members

in the lawsuit.’” Outdoor Amusement Bus. Ass’n v. Dep’t of

Homeland Sec., 983 F.3d 671, 683 (4th Cir. 2020) (internal citation

omitted). Defendants allege Plaintiffs lack standing because they

have failed to demonstrate an injury-in-fact.2

To establish an injury-in-fact, a plaintiff must “show that

he or she suffered ‘an invasion of a legally protected interest’

that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S.

330, 332 (2016) (citing Lujan, 504 U.S. at 560). An injury is

particularized if it “affect[s] the plaintiff in a personal and

individual way,” and it is concrete if it is “‘de facto’; that is,

it must actually exist.” Id. at 339–40 (citations omitted).

Brown and Weekley contend they have suffered an injury-in-

fact because they wish to purchase handguns and handgun ammunition

from FFLs but are precluded by statute because of their ages.

Brown and Weekley have each attempted to purchase handguns and

associated ammunition from FFLs but have been turned away. ECF

2 The Government does not challenge either the causation or

redressability prongs of the standing analysis. The burden of

showing standing rests on Plaintiff. See Heater v. General Motors,

LLC, 568 F. Supp.3d 626, 643 (N.D.W. Va. 2021) (citing Lujan, 504

U.S. at 560-61) (Keeley, J.). The Court, upon review of the

record, finds that burden has been met on both causation and

redressability.

MEMORANDUM OPINION AND ORDER

No. 28-3, Brown Decl.; ECF No. 28-2, Weekley Decl. Defendants

argue Brown and Weekley have not suffered an injury at all because

federal statutes and regulations do not preclude 18-, 19-, and 20-

year-olds from possessing handguns and handgun ammunition, so long

as Plaintiffs’ parents or guardians purchase them from FFLs as a

bona fide gift. ECF No. 24.

Defendants generally miss the point and Plaintiffs’ injury is

clear. Plaintiffs do not dispute that 18-to-20-year-olds who are

law-abiding adults and not otherwise banned from firearm

possession are not prohibited from possessing handguns. Brown and

Weekley’s injury prompting the filing of this suit is that they

cannot purchase handguns and handgun ammunition from FFLs as a

result of the age-based ban.

Defendants’ specific arguments are likewise unavailing.

First, the suggestion Plaintiffs suffer no injury because a parent

or guardian can simply purchase the gun and give it to an 18- to

20-year-old overly minimizes Plaintiffs’ plight. Deprivation of

a constitutional right is a deprivation and, necessarily, an injury

in fact, no matter if an “easy” and lawful work-around exists.

Moreover, the Supreme Court of the United States previously

rejected the Government’s reasoning in a different context. In

Brown v. Entertainment Merchants Association, 564 U.S. 786, 802

(2011) the Supreme Court, deciding a First Amendment issue, struck

MEMORANDUM OPINION AND ORDER

down a California law prohibiting the sale (but not the possession)

of violent video games to children under the age of 18. Like this

statute, the California law allowed parents (or aunts and uncles)

to purchase and provide the games to children. Id. Yet, the

Supreme Court found this prohibition on the sale of games

implicated children’s First Amendment rights and proceeded to

strike down the regulation under a strict scrutiny analysis. Id.

at 805 (emphasis added).

Brown and Weekley’s injury, therefore, is not solved by the

ability to receive a gift of a handgun from a parent or guardian.

See Fraser v. ATF, 2023 WL 3355339 (E.D. Va. 2023) (holding 18-

to-20-year-olds have standing to challenge the age-based handgun

ban and the statutory age prohibition violates the Second

Amendment); see also Nat. Rifle Ass’n of Am., Inc. v. ATF, 700

F.3d 185, 191-92 (5th Cir. 2012) (“by prohibiting FFLs from

selling guns to 18-to-20 year-olds, the laws cause those persons

a concrete particularized injury-i.e., the injury of not being

able to purchase handguns from FFLs.”).

The Government’s suggestion erroneously draws too large a

distinction between the right to possess and the right to purchase

a firearm. Although the Second Amendment does not expressly

protect the right to “purchase” firearms, that right must exist by

implication if the right to “keep and bear arms” is to have its

MEMORANDUM OPINION AND ORDER

full meaning and effect. “Commonsense and logic tell us that,

unless one is a maker of guns, the right to ‘keep’/have a gun

necessarily means that one must purchase it, steal it, be given it

by another, or find one that another has lost.” Fraser, 2023 WL

5617899, at *7.

Judge Payne’s analysis in Fraser proved prescient. Unlike

him, the Court now has the benefit of the Fourth Circuit’s decision

in Maryland Shall Issue, Inc. v. Moore.3 There, in the context of

determining whether purchasing a firearm falls within the scope of

the Second Amendment’s protection, see infra, the Fourth Circuit

found the issue “not complicated.” Id. at *4. “If you do not

already own a handgun, then the only way to ‘keep’ or ‘bear’ one

is to get one, either through sale, rental, or gift.” Id.

(emphasis in original). The Fourth Circuit also dismissed the

suggestion that the 30-day waiting period at issue there under

Maryland law was not a sufficient deprivation to run afoul of the

Second Amendment. Discussing the Founders’ use of “infringed” in

the Amendment’s text, the court left the issue undecided but noted

the “Second Amendment’s scrutiny is not exclusively reserved for

3 The Court was finalizing this Memorandum Opinion as the Maryland

Shall Issue opinion was published on November 21, 2023.

MEMORANDUM OPINION AND ORDER

laws that wholly or effectively prohibit firearm possession.” Id.

at *5 n.8.4

This Court, therefore, has no hesitation concluding

Plaintiffs’ have sufficiently pled and demonstrated an injury-in-

fact. The ban 18 U.S.C. § 922 imposes on 18-to-20-year-old law-

abiding citizens is a more significant deprivation than the 30-

day waiting period in Maryland Shall Issue. There, the Fourth

Circuit concluded “the temporary deprivation that Plaintiffs

allege is a facially plausible Second Amendment violation.”

Maryland Shall Issue, Inc., 2023 WL 8043827, at *5. Thus, the

individual Plaintiffs have standing.

Because the individual plaintiffs have established Article

III standing, and they are members of WVCDL, WVCDL has standing.

Outdoor Amusement Bus. Ass’n, 983 F.3d at 683; see also Firearms

Policy Coalition, Inc. et al. v. McCraw, 623 F. Supp.3d 740, 746-

47 (N.D. Tex. 2022). Because Plaintiffs have standing to bring

suit, Defendants’ Rule 12(b)(1) motion is DENIED on this ground.

4 In addition, the decision of the Fourth Circuit in Lane v. Holder,

703 F.3d 668 (4th Cir. 2012), although not directly dispositive,

is instructive. In Lane, the court assessed the issue of standing

in the Second Amendment context. Although the Fourth Circuit

ultimately held the Lane plaintiffs (would-be firearms purchasers)

had no standing, it contrasted the regulations in question there

with regulations that would burden consumers “directly.” Id. at

672. The statute and regulations Plaintiffs challenge here do

just that.

MEMORANDUM OPINION AND ORDER

B. Plaintiffs’ Constitutional Challenge to 18 U.S.C. § 922(b)(1)

and 18 U.S.C. § 922(c)(1)

1. The act of purchasing a firearm is protected by the Second

Amendment.

First, the Court must determine whether the act of purchasing

a firearm is within the Second Amendment’s “right to keep and bear

arms.” See Bruen, 142 S. Ct. at 2126; see also Maryland Shall

Issue, Inc., 2023 WL 8043827, at *5 ("So [Plaintiffs] just need to

show that the law regulates a course of conduct that falls within

the Amendment’s plain text, i.e., their ability “to possess and

carry weapons in case of confrontation.’” (quoting Heller, 554

U.S. at 592)). If it does, “the Constitution presumptively

protects that conduct.” Bruen, 142 S. Ct. at 2126. Plaintiffs

maintain “[t]he right to keep arms necessarily implies there is a

right to acquire arms.” ECF No. 29 at 12.

It appears the Fourth Circuit now agrees. Again, in Maryland

Shall Issue, Inc., Judge Richardson observed:

To start, you might note that the Amendment's

text protects only the right to “keep and

bear” arms. U.S. Const. amend. II. But, on

its face, the challenged law says nothing

about whether Plaintiffs may “keep” or “bear”

handguns. It only restricts Plaintiffs'

ability to “purchase, rent, or receive” them.

§ 5-117.1(c). How, then, does the law

regulate the right to keep and bear arms?

The answer is not complicated. If you do not

already own a handgun, then the only way to

“keep” or “bear” one is to get one, either

through sale, rental, or gift. And the

MEMORANDUM OPINION AND ORDER

challenged law cuts off all three avenues—at

least, for those who do not comply with its

terms.

Maryland Shall Issue, Inc., 2023 WL 8043827, at *4 (emphasis in

original). The Court notes that Maryland Shall Issue, Inc.

“appears” to answer the question presented here as that case

focused more on the perceived tension between temporary or

permanent bans on possession or acquisition of firearms. Thus,

the Court continues its analysis of this question which leads to

the same conclusion required under Judge Richardson’s recent

opinion.

At the first step, Bruen requires a court to conduct a

“textual analysis” that is “focused on the ‘normal and ordinary’

meaning of the Second Amendment’s language.” Id. at 2127 (quoting

Heller, 554 U.S. at 576–77); see also Maryland Shall Issue, Inc.,

2023 WL 8043827, at *3 (“The first question Bruen asks is whether

Plaintiffs’ proposed course of conduct is protected by the Second

Amendment’s plain text.” (citation omitted)). This inquiry into

the “normal meaning” of the “words and phrases used” is backward

looking, focused on what those words meant in 1791 when the Second

Amendment was ratified, and “excludes secret or technical meanings

that would not have been known to ordinary citizens in the founding

generation.” Heller, 554 U.S. at 576–77. A court applying the

first step of “Heller’s methodological approach,” Bruen, 142 S.

MEMORANDUM OPINION AND ORDER

Ct. at 2127, can employ several tools in discerning the text’s

normal and ordinary meaning. These may include: (1) comparison of

a phrase within the Second Amendment to the same or similar

language used elsewhere in the Constitution, Heller, 554 U.S. at

579–81 (comparing “right of the people” in the Second Amendment to

the same and similar language in the First, Fourth, and Ninth

Amendments); (2) consideration of historical sources, including

dictionaries, founding-era statutes, 18th-century legal treatises,

and others, that could suggest a common understanding of the terms

used, id. at 581–92 (examining the meaning of “keep and bear

arms”); and (3) evaluation of the historical background leading to

the Second Amendment’s adoption, id. at 592–95. See also Hirschfeld

v. Bureau of Alcohol, Firearms, Tobacco, and Explosives, 5 F.4th

407, 418–19, 421–23 (4th Cir. 2021) (discussing sources relevant

to understanding the original public meaning of the Second

Amendment), vacated as moot, 14 F.4th 322, 328 (4th Cir. 2021);

Nat’l Rifle Ass’n, Inc. v. Bureau of Alcohol, Tobacco, Firearms,

& Explosives, 714 F.3d 334, 337 (5th Cir. 2013) (“NRA II”) (Jones,

J., dissenting from denial of rehearing en banc) (“First, the text

of the Constitution was interpreted [in Heller] in light of

historical documents bearing on each phrase and clause of the

MEMORANDUM OPINION AND ORDER

Second Amendment as those were understood at the time of its

drafting.”).5

Being a functional prohibition on handgun buyers, the

statutes at issue “make it considerably more difficult for a person

lawfully to acquire and keep a firearm, including a handgun, for

the purpose of self-defense in the home—the ‘core lawful purpose’

protected by the Second Amendment.” Heller v. District of

Columbia, 670 F.3d 1124, 1256 (D.C.C. 2011) (emphasis added).

Common sense also tells us that the right to keep and bear arms

includes the right to purchase them. See also Fraser, 2023 WL

3355339, *8 (finding “consistent with the text and logic of the

Second Amendment . . . the right to purchase a gun falls within

the Second Amendment’s plain text.”). The Court finds Judge

Payne’s reasoning here particularly astute and, therefore,

persuasive.

The Second Amendment accords protection of

“the right of the people to keep and bear

Arms,” by providing that the right “shall not

be infringed.” U.S. Const. Amend. II

(emphasis added). The Second Amendment is

unique in its use of “infringed” for the word

does not appear anywhere else in the

Constitution. Despite its uniqueness, the

term “infringed” has received little attention

5 Judge Jones’ opinion was a dissenting one; however, her

reasoning, including her discussion of Heller’s analytical

approach, largely tracks the test clarified in Bruen. Furthermore,

as Plaintiffs note in their briefing, her discussion of the

historical framework surrounding ratification of the Second

Amendment stands unassailed.

MEMORANDUM OPINION AND ORDER

by scholars or courts. However, Heller took

the view that “infringed” “implicitly

recognizes the pre-existence of the right.”

554 U.S. at 592. As articulated in Heller,

the Second Amendment does not serve to grant

a right but rather preserves a right that the

people already possessed. Therefore, to “keep

and bear” serves to identify the right

protected, not to define the right in the

first instance.

The definition of “infringe” further supports

the conclusion that the pre-existing right

includes a right to purchase. “Infringe” is

defined in modern dictionaries as “to encroach

upon in a way that violates law or the rights

of another.” “Infringe,” Merriam-

Webster.com. “Encroach,” in turn, has two

definitions: “to enter by gradual steps or by

stealth into the possessions or rights of

another” and “to advance beyond the usual or

proper limits.” “Encroach,” Merriam-

Webster.com. Those words have possessed the

same meaning since the sixteenth century and

the Founders would have understood them in the

same way. Not simply protecting the heartland

of the preserved right, the Second Amendment

protects the environs surrounding it to

prevent any encroachment on the core

protections. Thus, by virtue of the word

“infringed,” the Second Amendment’s

protective textual embrace includes the

conduct necessary to exercise the right (“to

keep and bear”) and that, as explained above,

includes the right to purchase arms so that

one can keep and bear them.

Id. at *7.

MEMORANDUM OPINION AND ORDER

The Court’s conclusion here is in line with decisions of

multiple federal courts of appeal6 which, when ascertaining the

textual reach of the Second Amendment, “have held that the Second

Amendment protects ancillary rights necessary to the realization

of the core right to possess a firearm for self-defense.” Teixeira

v. Cnty. of Alameda, 873 F.3d 670, 677 (9th Cir. 2017). Among

these rights is “the ability to acquire arms.” Id. at 677-78

(citing to Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir.

2011)). District courts have concluded the same. See United

States v. Quiroz, 629 F.Supp.3d 511, 516 (W.D. Tex. 2022); Ill.

Ass’n of Firearms Retailers v. City of Chi., 961 F.Supp.2d 928,

930 (N.D. Ill. 2014); see also Fraser, 2023 WL 3355339, at *8;

6 Again, the Fourth Circuit in Maryland Shall Issue, Inc. appears

to have recently addressed this question. Nonetheless, its prior

decisions also provide support for the conclusion reached here.

In United States v. Hosford, the Fourth Circuit concluded the

Second Amendment does not provide a constitutional right to sell

firearms. 843 F.3d 161, 166 (4th Cir. 2016). There, the court

held, consistent with the Heller exceptions, “the prohibition

against unlicensed firearm dealing is a longstanding condition or

qualification on the commercial sale of arms and is thus facially

constitutional.” Id. Hosford distinguished the constitutional

regulations in question governing the commercial sale of firearms,

from regulations infringing on individuals’ ability to “purchase

or sell firearms owned for personal, self-defensive use.” Id. at

168. This leads to the natural and logical conclusion the Fourth

Circuit considers the right to purchase a firearm commensurate to

the right to keep a gun. See Sitzmann, “High-Value, Low-Value,

and No-Value Guns,” 86 U. Chi. L. Rev. at 2023 (“the Fourth, Ninth,

and Seventh Circuits all support a single, underlying message:

there is no individual right to sell a firearm conferred by the

Constitution, even though there is a right to acquire and use

one”).

MEMORANDUM OPINION AND ORDER

McCraw, 623 F. Supp.3d 740; and, Worth v. Harrington, Case No. 21-

CV-1348, 2023 WL 2745673 (D. Minn. March 31, 2023). As the

Northern District of Illinois concluded, “the ban on guns sales

and transfers prevents [individuals] from fulfilling ... the most

fundamental pre-requisite of legal gun ownership–that of simple

acquisition.” Ill. Ass’n of Firearms Retailers, 961 F.Supp.2d at

938.

Because “the substance of the challenged laws dictates that

they are a functional prohibition on buyers,” Hirschfeld, 5 F.4th

at 417, vacated by 14 F.4th 322 (4th Cir. 2021), and the act of

purchasing a handgun is within the bounds of the Second Amendment,

Heller, 670 F.3d at 1256, the Court turns to whether 18-to-20 year

olds are included in “the people” of the Second Amendment. See

Maryland Shall Issue, Inc., 2023 WL 8043827, at *3 (summarizing

the two-part assessment – “course of conduct” and “the people”).

2. 18-to-20-year-old law abiding citizens are part of “the

people” whom the Second Amendment protects.

Next the Court analyzes whether, under the Second Amendment,

“ordinary, law-abiding, adult citizens” between the ages of 18-

to-20 years, are “part of ‘the people’ whom the Second Amendment

protects.” Bruen, 142 S. Ct. at 2119. The Court finds that they

are.

Initially, and as Bruen requires, the Court starts with the

actual text of the Second Amendment which is silent as to any age

MEMORANDUM OPINION AND ORDER

requirements or restrictions on the rights enshrined therein. That

omission is significant when compared to other Constitutional

provisions. For example, minimum age requirements are

constitutionally imposed on membership in the House of

Representatives (25 years of age), the United States Senate (30

years age) and, of course, the office of President of the United

States (35 years of age). See U.S. Const. art I, § 2; art. I, §

3 and art. II, § 1. Clearly, the authors of the original

Constitution and the Bill of Rights contemplated age restrictions

during their drafting work. The Second Amendment only refers to

“the people.” Heller labeled “the people” a term of art

encompassing “all members of the political community, not an

unspecified subset.” Heller, 554 U.S. at 580.

Although the Supreme Court “has not precisely defined” the

meaning of “the people” in the Second Amendment, it has provided

guidance as to the reach of the term as used in the Constitution.

See United States v. Jackson, No. ELH-22-141, 2023 WL 2499856, at

*6 (D. Md. March 13, 2023). For example, the Supreme Court has

noted

“the people” protected by the Fourth

Amendment, and by the First and Second

Amendments, ... refers to a class of persons

who are part of a national community or who

have otherwise developed sufficient

connection with this country to be considered

part of that community.

MEMORANDUM OPINION AND ORDER

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

Specific to the Second Amendment, the Court is mindful of Heller’s

command that “a strong presumption [exists] that the Second

Amendment right is exercised individually and belongs to all

Americans.” Heller, 554 U.S. at 581 (emphasis added).

Other constitutional provisions lend credence to a broad

interpretation of the phrase “the people.” The First and Fourth

Amendments, like the Second, refer to “the people.” And both

Heller and Verdugo-Urquidez strongly suggest that the term “the

people” is defined consistently throughout the Constitution. On

this point, the First Amendment has been interpreted to apply to

all persons, even those under the age of 18. See, e.g., Tinker v.

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (free

speech); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624, 642 (1943) (free exercise). And while the First Amendment is

limited in some contexts (such as the forum or content of the

speech), age does not serve as a basis for limiting the

constitutionally protected right. See Tinker, 393 U.S. at 506

(“First Amendment rights, applied in light of the special

characteristics of the school environment, are available to

teachers and students. It can hardly be argued that either students

or teachers shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate.”).

MEMORANDUM OPINION AND ORDER

The Fourth Amendment likewise protects individuals regardless

of age. See New Jersey v. T.L.O., 469 U.S. 325, 334 (1985).

Certainly, the context of a search — e.g., whether on or off school

property — can affect the expectations of privacy. Id. at 337–

40. But the expectation of privacy is not affected based on the

age of the person being searched. Rather, the context of a search

is the distinguishing factor. See id.

Therefore, because neither the First nor Fourth Amendments

exclude, nor have been interpreted to exclude, 18-to-20-year-olds,

the Court can discern no reason to read an implicit age restriction

into the Second Amendment’s plain text either.

Beyond the First and Fourth Amendments, other constitutional

provisions, which do not specifically mention “the people,”

support the Court's conclusion that “the people” protected by the

Second Amendment include 18-to-20-year-olds. On this point,

neither the Fifth Amendment nor the Fourteenth Amendment exclude—

or have been interpreted to exclude—18-to-20-year-olds. See,

e.g., Fisher v. Univ. of Tex., 579 U.S. 365, 136 S. Ct. 2198, 2210

(2016) (equal protection); Goss v. Lopez, 419 U.S. 565, 574 (1975)

(due process); Kent v. Dulles, 357 U.S. 57, 65–66 (1958) (travel);

Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (equal educational

opportunities). Likewise, regarding the Eighth Amendment, the

Supreme Court has said that where “a line must be drawn,” “[t]he

MEMORANDUM OPINION AND ORDER

age of 18 is the point where society draws the line for many

purposes between childhood and adulthood.” Roper v. Simmons, 543

U.S. 551, 574 (2005). In short, neither the Second Amendment’s

text itself nor the ample Supreme Court precedent interpreting

other constitutional provisions referring to “the people” support

any conclusion other than the one made here.

The Court likewise considers the Fourth Circuit’s guidance7

on this question.

First, nothing in the text of the Second

Amendment limits its application by age.

Second, the most analogous rights to the

Second Amendment, those in the First and

Fourth Amendments, similarly contain no age

limits. Third, most other constitutional

7 Of course, this Court is bound to faithfully apply Fourth Circuit

precedent when applicable. See Rettig v. All. Coal, LLC, No. 2:21-

CV-08, 2023 WL 5673961, at *3 (N.D.W. Va. Sept. 1, 2023) (citing

United States v. Brown, 74 F. Supp. 2d 648, 652 (N.D.W. Va. 1998)

(“[A] district court is bound by the precedent set by its Circuit

Court of Appeals, until such precedent is overruled by the

appellate court or the United States Supreme Court.”)). The

Hirshfield opinion, having been vacated, is no longer binding

precedent but remains instructive. See Maryland Shall Issue, Inc.,

2023 WL 8043827, at *8 (relying on Hirschfeld to summarize Founding

Era militia laws).

Notably, since Hirschfeld, the Fourth Circuit marked the

significance of the “the people” prong of Bruen’s analysis.

Leaving the specific contours of that definition to another day

because the parties had stipulated to it, the Maryland Shall Issue,

Inc. court observed “[t]his is not necessarily to say that ‘the

people’ is limited to ‘ordinary, law-abiding, adult citizens.’

Post-Bruen, several courts have held that ‘the people’ refers to

all Americans, and is not limited to ordinary, law-abiding adult

citizens.” Maryland Shall Issue, Inc., 2023 WL 8043827, at *4 n.5

(citing as an example United States v. Silvers, No. 5:18-cr-50-

BJB, 2023 WL 3232605, at *5–6 (W.D. Ky. May 3, 2023)).

MEMORANDUM OPINION AND ORDER

rights are not age limited. And fourth, the

few rights that may not apply to those under

18 or that change by age are not analogous to

the Second Amendment, and most of those rights

become applicable at age 18, not 21.

Hirschfeld, 5 F.4th at 421, vacated by 14 F.4th 322 (4th Cir.

2021). Indeed, the Fourth Circuit found the statutorily prohibited

age group of 18-to-20-year-olds are part of “the people” included

in the Second Amendment’s protection. Id. The Fourth Circuit

reasoned “[t]he Second Amendment refers to the ‘right of the

people,’ which is a phrase also used in the First and Fourth

Amendments to denote an individual right,” neither of which

delineate age groups and instead “codify a pre-existing,

fundamental, inalienable individual right.” Id. at 422 (citing

Heller, 554 U.S. at 579, 592). Of course, “’minors’ First

Amendment rights are qualified to some degree, see Tinker, 393

U.S. at 506, 513, 89 S.Ct. 733, but those qualifiers do not

eliminate the rights altogether.” Id. From this, the Fourth

Circuit “emphasize[d] that the First and Fourth Amendments’

protection of ‘the people,’ including those under 18, confirms

that ‘the people’ protected by the Second Amendment includes at

least those 18 and older.” Id. “Indeed, it would be odd to treat

the Second Amendment like marriage and sex rather than

contemporaneously ratified rights such as the First and Fourth

Amendments that have been described as fundamental pre-existing

MEMORANDUM OPINION AND ORDER

rights analogous to the Second Amendment.” Id. at 423. “[I]t is

hard to conclude that 18- to 20-year-olds have no Second Amendment

rights when almost every other constitutional right affords them

protection.” Id. at 424.

Considering this analysis, the Court concludes 18-to-20-year-

old law abiding citizens are part of “the people” who the Second

Amendment protects. Plaintiffs themselves and the activity which

federal law and regulation currently prevent them from undertaking

are covered under the Second Amendment’s umbrella of

constitutional freedoms. Thus, the burden shifts to Defendants

who must demonstrate the challenged statutes are constitutionally

permissible under Bruen. See Maryland Shall Issue, Inc., 2023 WL

8043827, at *6 (“At Bruen’s second step, [the Government] must

provide historical evidence that justifies its law.”).

3. The Government cannot meet its burden to show 18 U.S.C. §§

922(b)(1) or 922(c)(1) are consistent with our Nation’s

historical tradition of firearm regulation.

If the normal and ordinary meaning of the Second Amendment’s

text protects the individual’s proposed course of conduct, which

the Court finds to be the case here, then the Amendment

“presumptively guarantees” the individual’s right related to

firearms, and the burden falls on the Government to justify the

challenged regulation. Bruen, 142 S. Ct. at 2135. The Government

bears the burden to show that the law is “consistent with this

MEMORANDUM OPINION AND ORDER

Nation’s historical tradition of firearm regulation.” Id. at 2126-

27, 2135; Heller, 544 U.S. at 580. “To do this, it may identify

a ‘historical analogue’ demonstrating that its law falls within a

historically recognized exception to the right to keep and bear

arms.” Maryland Shall Issue, Inc., 2023 WL 8043827, at *6 (citing

Bruen, 142 S. Ct. at 2132–33).

This necessarily requires the “reasoning by analogy”

contemplated by the Bruen Court. Bruen, 142 S. Ct. at 2132. The

Government must identify historical firearm regulations that are

consistent with the modern, challenged regulation, and courts must

decide whether a “historical regulation is a proper analogue”

through “a determination of whether the two regulations are

“‘relevantly similar.’” Id. (quoting C. Sunstein, On Analogical

Reasoning, 106 Harv. L. Rev. 741, 774 (1993)). Courts applying

Bruen must consider “whether modern and historical regulations

impose a comparable burden on the right of armed self-defense and

whether that burden is comparably justified.” Id. at 2133.

However, the Court has cautioned that “[t]his does not mean that

courts may engage in independent means-end scrutiny under the guise

of analogical reasoning.” Id. at 2133 n.7.

In the Defendants’ attempt to “justify [the Government’s]

regulation by demonstrating that it is consistent with the Nation's

historical tradition of firearm regulation,” they cite to William

MEMORANDUM OPINION AND ORDER

Blackstone commentaries and other “longstanding” state laws

prohibiting sales of firearms to persons under 21. ECF No. 24 at

14. Notably, Defendants argue that, historically, a person’s age

of 21 is the age of majority. Id.; see also ECF No. 24-2, Ex. B.

Our Nation’s history, however, points to a different conclusion.

Defendants spend time collecting state laws proscribing age

barriers to the possession and purchase of firearms between the

years of 1856 and 1993. ECF No. 24-2, Ex. B. However,

“[c]onstitutional rights are enshrined with the scope they were

understood to have when the people adopted them, whether or not

future legislatures or (yes) even future judges think that scope

too broad.” Heller, 544 U.S. at 634-35; see also Bruen, 142 S.

Ct. at 2137 (“the scope of the protection applicable to the Federal

Government . . . is pegged to the public understanding of the right

when the Bill of Rights was adopted in 1791.”). Defendants’

reliance on mostly 19th century gun safety regulations as their

justification in regulating the 18-to-20-year-old age group is

misplaced under Heller and Bruen.8 When later evidence

8 Plaintiffs here challenge the constitutionality of federal

statutes and regulations. While some Courts have been faced with

the question of which date – the Bill of Rights including the

Second Amendment was ratified in 1791 and the Fourteenth Amendment

was ratified in 1868 - should be more relevant considering the

Fourteenth Amendment’s extension of the Second Amendment to the

states, see, e.g., Worth, 2023 WL 2745673, at *10, that quandary

is not presented in this case.

MEMORANDUM OPINION AND ORDER

“contradicts earlier evidence,” it “cannot provide much insight

into the meaning of the Second Amendment.” Bruen, 142 S.Ct. at

2154.

At the time of the ratification of the Second Amendment in

1791, eighteen (18) was the age of majority for militia service

throughout the nation. Although, in 1775, sixteen-year-olds were

expected to fight in the Revolutionary War. United States v.

Blakeney, 3 Gratt. 405, 441 (Va. 1847) (“During the war of the

revolution, sixteen was the military age.”).

In 1792, the United States Congress “specified that ‘each

and every free able-bodied white male citizen of the respective

states, resident therein, who is or shall be of the age of eighteen

years, and under the age of forty-five years (except as is herein

after excepted) shall severally and respectively be enrolled in

the militia.’” Heller, 544 U.S. at 596 (quoting Second Militia

Act of 1792 § 1, 1 Stat. 271). Indeed,

[t]he Militia Act further required every

member of the militia to “provide himself with

a good musket or firelock . . . or with a good

rifle.” Id. Over the next few years, every

state revised its existing militia laws to

conform with the federal statute. In each of

these state statutes, the states adopted a

militia age of 18 and required militiamen to

arm themselves.

Fraser, 2023 WL 3355339, at *17 (quoting Second Militia Act of

1792 § 1) (collecting laws of states and commonwealths implementing

MEMORANDUM OPINION AND ORDER

militia majority age of 18 between the years of 1792 and 1807);

see also United States v. Miller, 307 U.S. 174, 179 (1939) (“And

further, that ordinarily when called for service these men were

expected to appear bearing arms supplied by themselves and of the

kind in common use at the time.”). “[B]y the eve of the Civil

War, only three states had passed any form of restrictions on the

ability of minors to purchase firearms and each of these was passed

65 years or more after the ratification of the Second Amendment.”

Fraser, 2023 WL 3355339, at *21; see also McCraw, 623 F. Supp.3d

at 750 (citing Nat'l Rifle Ass'n v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 714 F.3d 334 (5th Cir. 2013) (Jones, J.,

dissenting)) (“Likewise, at the time of the founding, most states

had similar laws requiring militia service for 18-to-20-year-

olds.”). Thus, the historical data close in time to ratification

in 1791 confirms 18-to-20-year-olds have the right to keep and

bear arms and are protected as part of “the people” under the

Second Amendment.

Following briefing, the Government filed a Notice of

Supplemental Authority [ECF No. 37] on March 9, 2023, alerting the

Court to the Eleventh Circuit’s decision issued that same day in

National Rifle Association v. Bondi, 61 F.4th 1317 (11th Cir.

2023). There, the Eleventh Circuit found a Florida statute

limiting the ability of 18-to-20-year-olds to purchase firearms

MEMORANDUM OPINION AND ORDER

did not violate the Second Amendment. See id. at 1332. The Bondi

court focused on whether the ratification era of the Second or

Fourteenth Amendment primarily informed its assessment of the

historical tradition of American firearm regulation. See id. at

1321-1332. As discussed supra at n.6, that assessment is much

less relevant here given Plaintiffs’ challenge to a federal

statute.9

Regardless, the Bondi decision was vacated on July 14, 2023,

when the Eleventh Circuit granted a petition for rehearing and

decided to rehear the case en banc. 72 F.4th 1346 (Mem.) (11th

Cir. 2023). Thus, the authority to which Defendants point the

Court is no longer “authority.” To date, Defendants have

inexplicably failed to update or withdraw their Notice of

Supplemental Authority despite the fact that the Eleventh Circuit

opinion—published over fourth months ago—vacates the Bondi panel’s

opinion and dedicates significant time in their papers discounting

the Fourth Circuit’s Hirschfeld opinion for the same reason.

9 The Bondi court undertook an extensive and thorough analysis

compiling historical analogues relevant to its inquiry of the

historical understanding at the time the Fourteenth Amendment was

ratified during Reconstruction (1866). This Court finds further

support for its conclusion that the Founding Era analogues weigh

in favor of Plaintiffs’ position here as the Bondi opinion’s

appendix tracks state laws regulating firearm purchases by 18-to-

20-year-olds spanning origins from 1855 into 1897 – well after the

Second Amendment’s ratification date in 1791. See id. at 1333-

38.

MEMORANDUM OPINION AND ORDER

The core issue the Court must answer under Bruen remains

whether our Nation’s history and tradition contains “analogous”

restrictions on the ability of 18-to-20-year-olds to purchase

firearms. Bruen, 145 S. Ct. at 2133. Defendants have not

presented any evidence of age-based restrictions on the purchase

or sale of firearms from before or at the Founding or during the

Early Republic. Defendants have likewise failed to offer evidence

of similar regulation between then and 1791 or in a relevant

timeframe thereafter. For that reason alone, Defendants have

failed to meet the burden imposed by Bruen. The Court once again

finds Judge Payne’s reasoning highly persuasive.

Finally, the lack of analogous evidence of

Founding-era regulations demonstrates that

the statutes and regulations at issue are

inconsistent with the Second Amendment. Since

time immemorial, teenagers have been, well,

teenagers. The “general societal problem” of

teenage impetuousness and rashness far

proceeded the Founding. Bruen, 142 S.Ct. at

2131. Yet, that fact notwithstanding, the

Government has not demonstrated that the

Founders dealt with this problem in a

“distinctly similar” way to the statutes and

regulations at issue. Id. The lack of

analogous regulations permits a finding that

the Founders considered age-based regulations

on the purchase of firearms to circumscribe

the right to keep and bear arms confirmed by

the Second Amendment.

Fraser, 2023 WL 3355339, at *21. More succinctly stated, “[w]hile

some gun regulations existed at the Founding, there were no

regulations restricting minors’ ability to possess or purchase

MEMORANDUM OPINION AND ORDER

weapons until two states adopted such laws in 1856.” Hirschfeld,

5 F.4th at 437.10

In summary, because Plaintiffs’ conduct – the purchase of

handguns – “fall[s] [within] the Second Amendment’s ‘unqualified

command’” and the challenged statutes and regulations are not

“consistent with the Nation’s historic tradition of firearm

regulation,” the Court FINDS 18 U.S.C. §§ 922(b)(1) and (c)(1)

facially unconstitutional and as applied to Plaintiffs. Plaintiffs

having demonstrated there is no genuine dispute of material fact

and that they are entitled to judgment as a matter of law, their

Motion for Summary Judgment [ECF No. 28] is GRANTED. For the same

reasons,11 Defendants’ Motion to Dismiss [ECF No. 24] is DENIED.

V. CONCLUSION

For the reasons discussed, the Court DENIES Defendant’s

Motion to Dismiss [ECF No. 23] and GRANTS Plaintiffs’ Motion for

Summary Judgment [ECF No. 28]. Defendants are ENJOINED from

10 Again, although Hirschfeld itself was vacated, the historical

analysis and summary detailed in that opinion remains accurate.

See Maryland Shall Issue, Inc., 2023 WL 8043827, at *8 (relying on

Hirschfeld for historical perspective). Thus, like Judge Jones’

dissent in NRA II, the Court considers it both instructive and

highly persuasive.

11 Rule 12 and Rule 56 obviously require the Court to employ

different standards; however, for the same reasons the Court grants

their summary judgment motion, Plaintiffs have obviously stated a

plausible claim for relief in their Amended Complaint. See Salazar

v. Holder, No. 3:14–CV–23, 2015 WL 574800, at *3 (N.D.W. Va.

February 11, 2015) (Groh, J.) (outlining Rule 12(b)(6) standard).

Brown v. ATF 1:22cv80

MEMORANDUM OPINION AND ORDER

enforcing 18 U.S.C. §§ (1) and (c) (1) against Plaintiffs and

otherwise-qualified 18-to-20-year-olds.

Pursuant to Federal Rule of Civil Procedure 54(b) and finding

no just reason for a delay of the appeal of this Order, the Court

DIRECTS entry of a final judgment in favor of Plaintiffs, and to

STRIKE this case from the Court’s active docket.

It is so ORDERED.

Pursuant to Rule 54(b), the Court DIRECTS the Clerk to enter

a separate judgment order. It further DIRECTS the Clerk to transmit

copies of this Memorandum Opinion and Order and the judgment order

to counsel of record.

DATED: December 1, 2023

Tom 8 Kl

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

40