National Rifle Association v. Commissioner, Florida Dept. of Law Enforcement

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12314

____________________

NATIONAL RIFLE ASSOCIATION,

RADFORD FANT,

Plaintiffs-Appellants.

versus

PAM BONDI,

In her official capacity as Attorney General of Florida, et al.,

Defendants,

COMMISSIONER, FLORIDA DEPARTMENT

OF LAW ENFORCEMENT,

Defendant-Appellee.

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2 Opinion of the Court 21-12314

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:18-cv-00137-MW-MAF

____________________

Before WILLIAM PRYOR, Chief Judge, and JORDAN, ROSENBAUM, JILL

PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER,

ABUDU, and WILSON, Circuit Judges.*

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court,

in which JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, GRANT,

ABUDU, and WILSON, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a concurring opinion in which

JORDAN, Circuit Judge, joined as to Parts I and II, and in which

ABUDU, Circuit Judge, joined as to Part III.

NEWSOM, Circuit Judge, filed a concurring opinion.

WILSON, Circuit Judge, filed a concurring opinion.

BRANCH, Circuit Judge, filed a dissenting opinion in which LAGOA,

Circuit Judge, joined.

* WILSON, Circuit Judge, elected to continue in the decision of this appeal,

which was reheard en banc while he was in regular active service. 28 U.S.C.

§ 46(c). KIDD, Circuit Judge, who joined the Court after oral argument, did not

participate in the decision of this appeal.

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LAGOA, Circuit Judge, filed a dissenting opinion in which BRANCH,

Circuit Judge, joined.

BRASHER, Circuit Judge, filed a dissenting opinion in which

BRANCH, LUCK, and LAGOA, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether a state law that

prohibits the purchase of firearms by minors violates the Second

and Fourteenth Amendments as applied to individuals between the

ages of 18 and 21. After the Florida Legislature enacted this prohi-

bition in response to the massacre at Marjory Stoneman Douglas

High School, the National Rifle Association and an individual

member sued the Commissioner of the Florida Department of Law

Enforcement. The district court granted summary judgment for

the Commissioner. We affirm because the Florida law is consistent

with our historical tradition of firearm regulation.

I. BACKGROUND

On February 11, 2017, Nikolas Cruz entered Sunrise Tactical

Supply in Coral Springs, Florida. See MARJORY STONEMAN DOUGLAS

HIGH SCHOOL PUBLIC SAFETY COMMISSION, INITIAL REPORT 262–64

(2019). Cruz turned 18 years old five months earlier and could le-

gally purchase a firearm in the State of Florida. Id. at 231, 262. At

Sunrise Tactical, Cruz lawfully purchased a Smith & Wesson M&P

15 semiautomatic rifle with a sling and bipod attached. Id. at 262–

64.

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A year later, on Valentine’s Day, Cruz arrived in an Uber at

Marjory Stoneman Douglas High School in Parkland, Florida, at

2:19 p.m. carrying the rifle. Id. at 24, 57. Two minutes later, he

walked into a school building, entered a stairwell, and paused to

load his rifle and don a vest that held extra magazines of ammuni-

tion. Id. at 25. When a student encountered Cruz in the stairwell as

he prepared for the attack, Cruz said, “you better get out of here,

something bad is about to happen.” Id.

Seconds later, Cruz left the stairwell and opened fire in the

first-floor hallway. Id. Gina Montalto sat in the alcove of a class-

room, and Luke Hoyer and Martin Duque stood outside the door.

Id. Cruz fatally shot all three. Cruz then shot and wounded another

student who was in the hall. Id.

Next, Cruz aimed his rifle at a student-filled classroom. Id.

He fired two series of shots into the room. Id. These shots killed

Alyssa Alhadeff, Alaina Petty, and Alex Schachter and wounded

five others. Id. at 25–26. In the next student-filled classroom that

Cruz approached, he fatally shot Nicholas Dworet and Helena

Ramsay and wounded four others. Id. at 26.

Campus monitor Chris Hixon burst into the hallway and ran

toward Cruz; Cruz turned and shot him too. Id. at 27. Hixon fell to

the ground wounded and crawled behind a nearby wall. Id. Cruz

turned the rifle toward yet another classroom and fired again. Id.

at 28. These shots killed Carmen Schentrup and wounded three

others. Id. Cruz then ran through the hallway, passed Hixon lying

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wounded on the ground, and shot him again and killed him. Id. at

28, 65.

Next, Cruz entered the stairwell. Id. at 28. There, he encoun-

tered campus monitor Aaron Feis. Id. Cruz shot and killed him be-

fore he continued to the second floor. Id. at 28–29. He entered the

hallway with his rifle raised to fire but found the hallway empty.

Id. at 29. As he moved through the hall, he muttered, “no one is

here.” Id.

Meanwhile, on the third floor, panic ensued when the fire

alarm blared. Id. at 27. Students rushed for the stairwell but re-

versed course when they heard the gunshots below. Id. As Cruz

stalked up the stairwell, one third-floor teacher frantically tried to

locate his keys so he could let students back into his classroom. Id.

at 31. When Cruz entered the third-floor hallway, about 20 people

were still outside classrooms. Id. He opened fire on them. Id. Scott

Beigel and another teacher were holding doors open for students

when Cruz shot them and killed Beigel. Id. Unable to access his

classroom, the teacher searching for his keys hid with several stu-

dents in the alcove of his classroom before he darted to another

alcove to try a different classroom door, which was also locked. Id.

at 31–32. He then directed the students to flee with him to the stair-

well. Id. at 32. As they ran, Cruz opened fire on them. Id. Jaime

Guttenberg and Peter Wang were fatally shot within feet of reach-

ing the stairwell. Id. at 31–32. Cruz then turned his attention to

Meadow Pollack, who was on the ground wounded, and Cara

Loughran, who remained in the alcove, and fatally shot them. Id.

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at 31–33. He then entered the alcove to the men’s restroom and

fatally shot Joaquin Oliver too. Id. at 31, 33. Three others were

wounded during Cruz’s third-floor attack. Id. at 31.

Five minutes and 32 seconds after Cruz fired the first shots,

he fired the final shot. Id. at 25, 33. After shooting students and

teachers on the third floor, he shot at the exterior windows of a

room on that floor in a last-ditch effort to establish a sniper position

to target fleeing students outside the building. Id. at 33. He then

entered the stairwell, placed his rifle, vest, and 180 live rounds on

the ground and ran down the stairs. Id. at 34. He left the building

and ran with fleeing students to blend in. Id. at 34, 125. He walked

to a nearby McDonald’s and sat down at a table occupied by a man.

Id. at 35. Unbeknownst to the man, Cruz had shot and seriously

injured his sister in a first-floor classroom less than an hour before.

Id. at 28, 35–36. Cruz was arrested a short time later. Id. at 36–37.

He killed 17 individuals and wounded 17 others during his massa-

cre. Id. at 7.

Less than a month later, Florida enacted the Marjory Stone-

man Douglas High School Public Safety Act to “address the crisis

of gun violence, including but not limited to, gun violence on

school campuses.” 2018 Fla. Laws 10. The law states that a “person

younger than 21 years of age may not purchase a firearm.” FLA.

STAT. § 790.065(13). It also prohibits a “licensed importer, licensed

manufacturer, or licensed dealer” from “ma[king] or facilitat[ing]”

the “sale or transfer of a firearm to a person younger than 21 years

of age.” Id. A violation of the Florida law is a third-degree felony

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punishable by up to five years of imprisonment and a fine up to

$5,000. Id. §§ 790.065(13), 775.082(3)(e), 775.083(1)(c). The Florida

law contains exceptions permitting the purchase of a rifle or shot-

gun by peace officers, correctional officers, or military personnel

under the age of 21. Id. § 790.065(13).

The National Rifle Association sued the Commissioner of

the Florida Department of Law Enforcement for declaratory and

injunctive relief and alleged that the Florida law violates the Second

and Fourteenth Amendments. Radford Fant, who was between the

ages of 18 and 21 at the time, later joined as an individual plaintiff.

Although the Association and Fant purported to make a facial chal-

lenge to the Florida law, they alleged that it is unconstitutional only

to the extent that it prohibits individuals between the ages of 18

and 21 from purchasing firearms. Colton Campbell, who is be-

tween the ages of 18 and 21, has since been substituted for Fant as

the individual plaintiff.

The parties cross-moved for summary judgment, and the

district court granted judgment for the Commissioner. The district

court ruled that the Florida law does not violate the right to keep

and bear arms of individuals between 18 and 21 years of age.

This appeal followed. During its pendency, the Supreme

Court decided New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct.

2111 (2022). The Supreme Court held that a firearm regulation is

constitutional if it “is consistent with this Nation’s historical tradi-

tion of firearm regulation.” Id. at 2126. We vacated a panel opinion

that affirmed the district court after the Bruen decision to rehear

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8 Opinion of the Court 21-12314

this appeal en banc. Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317 (11th

Cir. 2023), vacated, reh’g en banc granted, 72 F.4th 1346 (11th Cir.

2023). And we stayed briefing until the Supreme Court later de-

cided, in United States v. Rahimi, that a federal law forbidding per-

sons subject to domestic-violence restraining orders from pos-

sessing firearms, 18 U.S.C. § 922(g)(8)(C)(i), was constitutional be-

cause it was consistent with our historical tradition of regulating

firearms. 144 S. Ct. 1889, 1898, 1903 (2024).

II. STANDARD OF REVIEW

We review de novo a summary judgment. Thai Meditation

Ass’n of Ala. v. City of Mobile, 83 F.4th 922, 926 (11th Cir. 2023). Sum-

mary judgment is proper where, construing all facts in the non-

movant’s favor, there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Id.

III. DISCUSSION

The Second Amendment provides, “A well regulated Mili-

tia, 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. The Amendment secures a preexisting right held by “the

people” that is “exercised individually and belongs to all Ameri-

cans.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008). The

“‘central component’ of the Second Amendment” is the right to “self-

defense.” McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (quot-

ing Heller, 554 U.S. at 599). The Amendment guarantees Americans

the right to “have weapons” and to carry them “outside of an orga-

nized militia.” Heller, 554 U.S. at 582, 584 (internal quotation marks

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omitted). This guarantee extends to “all instruments that consti-

tute bearable arms, even those that were not in existence at the

time of the founding.” Id. at 582.

“Like most rights, the right secured by the Second Amend-

ment is not unlimited.” Id. at 626. “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 what-

soever in any manner whatsoever and for whatever purpose.” Id.

Since the Founding, American law has regulated arms-bearing con-

duct in many ways: from prohibitions on “gun use by drunken

New Year’s Eve revelers” to bans on “‘dangerous and unusual

weapons’” to restrictions on concealed carry. Rahimi, 144 S. Ct. at

1897 (quoting Heller, 554 U.S. at 627).

Although the Association and Campbell purport to make a

facial challenge to the Florida law, their challenge is to the law as

applied only to individuals between the ages of 18 and 21. A facial

challenge requires a plaintiff to “‘establish that no set of circum-

stances exists under which the [law] would be valid,’ or . . . show[]

that the law lacks a ‘plainly legitimate sweep.’” Moody v. NetChoice,

LLC, 144 S. Ct. 2383 (alteration rejected) (quoting United States v.

Salerno, 481 U.S. 739, 745 (1987)). The Association and Campbell

do not challenge the Florida law in that way. They argue that the

law is unconstitutional because it bars individuals between the ages

of 18 and 21 from purchasing firearms—not because it prohibits all

minors from purchasing firearms.

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When a person challenges a law regulating arms-bearing

conduct, courts must examine the “‘historical tradition of firearm

regulation’” in our nation to “delineate the contours of the right.”

Rahimi, 144 S. Ct. at 1897 (quoting Bruen, 142 S. Ct. at 2126). A reg-

ulation is lawful if it “fits within” and “is consistent with the princi-

ples that underpin” that tradition. Id. at 1897–98. This inquiry turns

on “[w]hy and how” the regulation burdens the right to keep and

bear arms. Id. at 1898. If it addresses the same problem as historical

restrictions, it shares a “why” with those restrictions. Id. A shared

“why” is a “strong indicator” that a modern regulation “fall[s]

within a permissible category of regulations.” Id. And, if a regula-

tion shares a “why” with historical restrictions, it is lawful if it is

“‘similar’” to those restrictions in “how” it burdens the right. Id.

(quoting Bruen, 142 S. Ct. at 2132). The burden to establish the law-

fulness of a regulation lies with the government. Id. at 1897.

Although a regulation “may not be compatible with the

right if it” restricts the right “to an extent beyond what was done

at the founding,” the regulation need “not precisely match its his-

torical precursors” either. Id. at 1898. A modern law could “‘pass

constitutional muster’” if it is “‘analogous enough’” to those pre-

cursors to “comport with the principles underlying the Second

Amendment,” even if it is not a “‘dead ringer’ or a ‘historical twin.’”

Id. (quoting Bruen, 142 S. Ct. at 2133). To require that a modern law

perfectly match a law from the Founding era erroneously “assumes

that founding-era legislatures maximally exercised their power to

regulate.” Id. at 1925 (Barrett, J., concurring). The Constitution

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does not impose a “‘use it or lose it’ view of legislative authority.”

Id.

To determine whether the Florida law is consistent with our

regulatory tradition, we must first decide what tradition is relevant

to that inquiry. For purposes of this appeal, the Founding era is the

primary period against which we compare the Florida law. The Su-

preme Court has “made clear that individual rights enumerated in

the Bill of Rights and made applicable against the States through

the Fourteenth Amendment have the same scope as against the

Federal Government.” Bruen, 142 S. Ct. at 2137. That is, “incorpo-

rated Bill of Rights protections,” like the Second Amendment, “‘are

all to be enforced against the States under the Fourteenth Amend-

ment according to the same standards that protect those personal

rights against federal encroachment.’” McDonald, 561 U.S. at 765

(quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964)).

The Supreme Court has “generally assumed that the scope”

of those rights “is pegged to the public understanding of the right

when the Bill of Rights was adopted in 1791.” Bruen, 142 S. Ct. at

2137. But the Court did not definitively decide in Bruen the period

of history against which we should compare firearm regulations. It

acknowledged the “ongoing scholarly debate on whether courts

should primarily rely on the prevailing understanding of an indi-

vidual right when the Fourteenth Amendment was ratified in 1868

when defining its scope (as well as the scope of the right against the

Federal Government).” Id. at 2138. But it declined to decide the

proper historical period because the “public understanding of the

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right to keep and bear arms in both 1791 and 1868 was, for all rele-

vant purposes, the same with respect to public carry.” Id.

The Supreme Court relied heavily on sources from the

Founding era to interpret the Second Amendment in Heller. To in-

terpret the phrase “to keep and bear arms,” the Court used diction-

aries from the Founding era, “written documents of the founding

period,” and “state constitutional provisions written in the 18th

century or the first two decades of the [nineteenth century].” Heller,

554 U.S. at 581–92. To determine the meaning of the Second

Amendment’s operative clause, the Court also “look[ed]” to the

“historical background of the Second Amendment” because “it has

always been widely understood that the Second Amendment . . .

codified a pre-existing right.” Id. at 592. That historical background

spanned over 100 years, from before the Glorious Revolution to

the first decade of the nineteenth century. Id. at 592–95. The Court

also considered the debate over whether the right to keep and bear

arms “needed to be codified in the Constitution.” Id. at 598. And it

again considered “analogous arms-bearing rights in state constitu-

tions that preceded and immediately followed adoption of the Sec-

ond Amendment.” Id. at 600–01.

The Supreme Court has warned against the overuse of his-

tory from Reconstruction. Although the Supreme Court looked to

sources from Reconstruction in Heller, it cautioned that because

those sources come “75 years after the ratification of the Second

Amendment, they do not provide as much insight into its original

meaning as earlier sources.” Id. at 614. And, in Bruen, the Court

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explained that “when it comes to interpreting the Constitution, not

all history is created equal” because “‘[c]onstitutional rights are en-

shrined with the scope they were understood to have when the peo-

ple adopted them.’” 142 S. Ct. at 2136 (quoting Heller, 554 U.S. at 634–

35). The Second Amendment was ratified, and its meaning fixed, in

1791.

Our conclusion that we first look to the Founding under-

standing finds additional support in the Supreme Court’s repeated

interpretations of other amendments based on their public mean-

ing at the Founding. For example, in Crawford v. Washington, the

Court explained that the “founding generation’s” understanding of

the “right to confront one’s accusers” derived from the “common

law.” 541 U.S. 36, 43 (2004). Crawford canvassed English legal his-

tory, colonial practice, state law contemporary to the ratification

of the Sixth Amendment, ratification debates, and early state prac-

tice to ascertain the scope of the right. Id. at 42–50. Likewise, in

Virginia v. Moore, the Court explained that it “look[s] to the statutes

and common law of the founding era to determine the norms that

the Fourth Amendment was meant to preserve.” 553 U.S. 164, 168

(2008). And, in Nevada Commission on Ethics v. Carrigan, the Court

considered legislative enactments, treatises, and conflict-of-interest

rules contemporaneous to the ratification of the First Amendment

to determine whether legislative recusal rules violate the First

Amendment. 564 U.S. 117, 122–25 (2011). These precedents reflect

the preeminence of Founding-era sources to the meaning of the Bill

of Rights. Because the Supreme Court relies on sources from the

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Founding era to interpret the Bill of Rights, including the Second

Amendment, we do too.

Nevertheless, postratification history of a “‘regular course of

practice’ can ‘liquidate [and] settle the meaning of’ disputed or in-

determinate ‘terms [and] phrases’ in the Constitution.” Bruen, 142

S. Ct. at 2136 (quoting Chiafalo v. Washington, 140 S. Ct. 2316, 2326

(2020)). To be sure, Bruen did not “endorse freewheeling reliance

on historical practice from the mid-to-late 19th century to establish

the original meaning of the Bill of Rights.” Id. at 2163 (Barrett, J.,

concurring). And “to the extent later history contradicts what the

text says, the text controls.” Id. at 2137 (majority opinion). For ex-

ample, in the context of the First Amendment, the Supreme Court

declined to rely on a practice of over 30 states from the “second half

of the 19th century” yet relied on other evidence from that era. Es-

pinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020). The

Court explained that it saw “no inconsistency in recognizing that

such evidence may reinforce an early practice but cannot create one.”

Id. at 2259 (emphasis added). So we may look to historical practice

from the mid-to-late nineteenth century at least to confirm the

Founding-era understanding of the Second Amendment. But we

need not and do not decide in this appeal how to address a conflict

between the Founding-era and Reconstruction-era understandings

of the right because the law of both eras restricted the purchase of

firearms by minors. Cf. Bruen, 142 S. Ct. at 2138 (declining to ad-

dress this issue because “the public understanding of the right to

keep and bear arms in both 1791 and 1868 was, for all relevant pur-

poses, the same with respect to public carry”).

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At the Founding, a person was an “infant[]” or a “minor[]”

in the eyes of the law until age 21. 1 ZEPHANIAH SWIFT, A SYSTEM

OF THE LAWS OF THE STATE OF CONNECTICUT 213 (1795); accord 1

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND

*463 (George Sharswood ed., 1893) (“[F]ull age in male or female

is twenty-one years,” and an individual “till that time is an infant,

and so styled in law.”); SAMUEL JOHNSON, I’nfant. n.s., A

DICTIONARY OF THE ENGLISH LANGUAGE (1773),

https://perma.cc/Q4JZ-DRGE (“Infants” were “young person[s]

to the age of one and twenty.”). And the colonies “adopted age

twenty-one as the near universal age of majority.” Vivian E. Ham-

ilton, Adulthood in Law and Culture, 91 TUL. L. REV. 55, 64 (2016).

The “age of majority at twenty-one was early established at com-

mon law” and evolved “from the system of judicial combat and

knight service, the age of knighthood being increased . . . to the

completion of twenty years.” T. E. James, The Age of Majority, 4 AM.

J. LEGAL HIST. 22, 30 (1960). English law set the age of majority at

21 years of age because of the relative lack of maturity and judg-

ment of younger individuals. See 1 BLACKSTONE, supra, at *453. The

English view was that a child does not “arriv[e] at years of discre-

tion” until that age. Id. When a child turned 21 years of age, “the

law . . . established” that “the empire of the father, or other guard-

ian,” should “give[] place to the empire of reason.” Id.

The Founders’ generation shared the view that minors

lacked the reason and judgment necessary to be trusted with legal

rights. Gouverneur Morris warned that these individuals “want

prudence” and “have no will of their own.” 4 THE WRITINGS OF

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16 Opinion of the Court 21-12314

JAMES MADISON 119 (Gaillard Hunt ed., 1903) (Constitutional Con-

vention, August 7, 1787). Thomas Jefferson considered “infants”

akin to “maniacs,” “drunkards,” and others who “cannot take care

of themselves.” Letter from Thomas Jefferson to Samuel Smith

(May 3, 1823), https://perma.cc/YD6X-H6PN. And, with respect

to voting, John Adams explained that these individuals were not

“fit to be trusted by the [p]ublic” because of their lack of “[j]udg-

ment” and “[w]ill.” Letter from John Adams to James Sullivan (May

26, 1776), https://perma.cc/HW9M-7YL2.

Because of their lack of reason, infants were subject to the

“power” of their parents until they reached age 21. 1 BLACKSTONE,

supra, at *452–53; 1 SWIFT, supra, at 213. Parents “ha[d] the benefit”

and “receive[d] the profits” of their children’s labor. 1 BLACKSTONE,

supra, at *453. Minors could not sue to vindicate their rights with-

out joining their guardians or some other “next friend” who was

not their guardian. Id. at *464. Parents controlled children’s access

to information, including books. Brown v. Ent. Merchs. Ass’n, 564

U.S. 786, 831–32 (2011) (Thomas, J., dissenting). Nor could they en-

list in the military without parental consent. Act of March 16, 1802,

2 Stat. 132, 135 (“[N]o person under the age of twenty-one years

shall be enlisted by any officer, or held in the service of the United

States, without the consent of his parent.”). Families in New Eng-

land were arranged so that the “[p]atriarchal household heads

sp[oke] for their dependents in dealings with the larger world.”

Toby L. Ditz, Ownership and Obligation: Inheritance and Patriarchal

Households in Connecticut, 1750–1820, 47 WM. & MARY Q. 235, 236

(1990). Dependent minors “lacked the formal capacity to

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participate in public life and [were] subject to the authority of

household heads.” Id. at 237.

Among the many legal disabilities that “secure[d] [minors]

from hurting themselves by their own improvident acts,” 1

BLACKSTONE, supra, at *464, minors generally lacked the capacity

to contract, id. at *465, and to purchase goods on account, WILLIAM

MACPHERSON, TREATISE ON THE LAW RELATING TO INFANTS 303

(1843). All “contracts with infants, except for necessaries, [were] ei-

ther void or voidable” because “infants . . . are supposed to want

judgment and discretion in their contracts and transactions with

others.” 1 SAMUEL COMYN, A TREATISE OF THE LAW RELATIVE TO

CONTRACTS AND AGREEMENTS NOT UNDER SEAL 148 (1809). As a

“general rule,” contracts for the purchase of “personal property”

involving minors were “voidable.” 1 SWIFT, supra, at 215. By the

early nineteenth century, voidability was applied so “broadly” that

“it became almost impossible for children to form any contracts.”

HOLLY BREWER, BY BIRTH OR CONSENT: CHILDREN, LAW, AND THE

ANGLO-AMERICAN REVOLUTION IN AUTHORITY 271 (2005) (empha-

sis added). But a minor could “bind himself by his contract for ne-

cessaries, for diet[,] apparel, education, and lodging.” 1 SWIFT, su-

pra, at 216; accord BREWER, supra, at 271; 2 JAMES KENT,

COMMENTARIES ON AMERICAN LAW 256 (William Kent ed., 8th ed.

1854). Yet, an infant who “live[d] with his father or guardian” who

adequately cared for him, could not “bind himself even for neces-

saries.” 2 KENT, supra, at 256–57 (emphasis added).

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The inability to contract impeded minors from acquiring

firearms during the Founding era. In that era, “contracts were

more important for the basic transactions of society” than today.

BREWER, supra, at 271. The purchase of goods, including firearms,

required the ability to contract because people often bought goods

on credit. See, e.g., Wills v. Brown, 3 N.J.L. 548, 548 (N.J. Sup. Ct.

1809) (dispute over a “running blacksmith account”); Christie v.

Woods, 2 Yeates 213, 215 (Pa. 1797) (dispute over “goods [that] were

sold on six months’ credit”); Saunders Glover & Co. v. Ott’s Adm’r, 12

S.C.L. (1 McCord) 572, 572 (1822) (dispute over goods, including

“powder and pistols,” purchased on credit); MACPHERSON, supra, at

316 (discussing disputes over clothing and jewelry bought on

credit). And because voidability threatened sellers with a “high

risk” that they could not recover goods sold if they contracted with

infants, “infants [were] effectively unable to form contracts.”

BREWER, supra, at 271. Importantly, “liquor, pistols, powder, sad-

dles, bridles, [and] whips” were not necessaries. Ott’s Adm’r, 12

S.C.L. (1 McCord) at 572; see also 1 SWIFT, supra, at 216 (necessaries

were “diet[,] apparel, education, and lodging”); BREWER, supra, at

266 (necessaries were food, clothing, education, and medicine); 2

KENT, supra, at 256 (same). Minors also lacked disposable income

to otherwise purchase firearms because they either worked for

their parents for no wages, Robert J. Spitzer, Historical Weapons Re-

strictions on Minors, 76 RUTGERS U.L. REV.: COMMENTARIES 101, 108

(2024), or any wages earned belonged to their parents, 1

BLACKSTONE, supra, at *453.

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21-12314 Opinion of the Court 19

We draw two lessons from the legal treatment of minors at

the Founding. First, minors generally could not purchase firearms

because they lacked the judgment and discretion to enter contracts

and to receive the wages of their labor. Second, minors were sub-

ject to the power of their parents and depended on their parents’

consent to exercise rights and deal with others in society.

State militia laws from the Founding era confirm this under-

standing. Because of the legal incapacity of individuals under the

age of 21, states enacted laws at the Founding to address minors’

inability to purchase firearms required for their militia service. The

Second Congress passed the Militia Act to enroll “able-bodied”

men between the ages of 18 and 45 in the militia. Act of May 8,

1792, 1 Stat. 271, 271. The Act provided that “every citizen so en-

rolled . . . shall . . . provide himself with a good musket or firelock.”

Id. But members of Congress recognized that individuals between

the ages of 18 and 21 would need their parents to provide them

weapons to comply with the Act. Representative John Vining

“asked by what means minors were to provide themselves with the

requisite articles” for militia service. 2 JOSEPH GALES, THE DEBATES

AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 1854–

55 (1834). And Representative Jeremiah Wadsworth responded

that “as to minors, their parents or guardians would prefer furnish-

ing them with arms themselves, to depending on the United

States” to furnish them with arms. Id. at 1856.

States addressed the problem of providing minors the fire-

arms necessary for militia service in different ways. Pennsylvania

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20 Opinion of the Court 21-12314

and Delaware exempted minors from the firearm requirement en-

tirely. 14 JAMES T. MITCHELL & HENRY FLANDERS, THE STATUTES AT

LARGE OF PENNSYLVANIA FROM 1682 TO 1801, at 456 (1909)

(“[Y]oung men under the age of twenty-one . . . shall be exempted

from furnishing the necessary arms, ammunition and accoutre-

ments.”) (Statutes of 1793); 2 LAWS OF THE STATE OF DELAWARE

1135–36 (New Castle, Samuel Adams & John Adams 1797) (same)

(Statutes of 1793). New Hampshire, Massachusetts, Vermont,

North Carolina, Louisiana, Maine, and Missouri required parents

of minors to acquire firearms for their militia service. THE LAWS OF

THE STATE OF NEW HAMPSHIRE 421–22 (Portsmouth, John Melcher

1797) (Act of 1792); 2 THE PERPETUAL LAWS OF THE

COMMONWEALTH OF MASSACHUSETTS 181 (Boston, I. Thomas &

E. T. Andrews 1801) (Statutes of 1793); 2 THE LAWS OF THE STATE

OF VERMONT 131–32 (Randolph, Sereno Wright 1808) (Act of 1797);

2 FRANCOIS-XAVIER MARTIN, THE PUBLIC ACTS OF THE GENERAL

ASSEMBLY OF NORTH CAROLINA 159 (Newbern, Martin & Ogden

1804) (Act of 1800); ACTS PASSED AT THE FIRST SESSION OF THE

LEGISLATIVE COUNCIL OF THE TERRITORY OF ORLEANS 284–86 (New

Orleans, James M. Bradford 1805) (Act of 1805); AN ACT TO

ORGANIZE, GOVERN, AND DISCIPLINE THE MILITIA, OF THE STATE OF

MAINE 21, 37 (Portland, Todd & Smith 1824) (Act of 1821); 2 LAWS

OF THE STATE OF MISSOURI 533, 554, 571, 574 (St. Louis, E. Charless

1825) (Act of 1825). And Virginia, Connecticut, New York, Rhode

Island, Maryland, New Jersey, Ohio, Mississippi, Kentucky, Geor-

gia, Indiana, and Illinois implicitly required parents to supply mi-

nors with firearms because those states held parents liable for

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21-12314 Opinion of the Court 21

minors’ fines related to militia service, including the failure to ob-

tain a firearm. 9 WILLIAM WALTER HENING, THE STATUTES AT

LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM

THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 270–71

(Richmond, J. & G. Cochran Printers 1821) (Act of 1777); ACTS AND

LAWS OF THE STATE OF CONNECTICUT, IN AMERICA 307–08, 312

(Hartford, Hudson & Goodwin 1796) (Act of 1792); 3 LAWS OF THE

STATE OF NEW YORK 58, 63–64 (New York, Thomas Greenleaf

1797) (Act of 1793); THE PUBLIC LAWS OF THE STATE OF RHODE

ISLAND AND PROVIDENCE PLANTATIONS 436–38 (Providence, Carter

& Wilkinson 1798) (Act of 1798); 2 WILLIAM KILTY, THE LAWS OF

MARYLAND ch. LIII, §§ I, XV, XIX (Annapolis, Frederick Green

1800) (Supplement of 1798); WILLIAM PATERSON, LAWS OF THE

STATE OF NEW JERSEY 438–40 (New Brunswick, Abraham Blauvelt

1800) (Act of 1799); 2 ACTS OF THE STATE OF OHIO: SECOND SESSION

OF THE GENERAL ASSEMBLY 31–32, 35 (Chillicothe, N. Willis, re-

printed by The Laning Co. 1901) (Statutes of 1803); HARRY

TOULMIN, THE STATUTES OF THE MISSISSIPPI TERRITORY 80

(Natchez, Samuel Terrell 1807) (Statutes of 1807); 2 LAWS OF

KENTUCKY 401, 405 (Lexington, John Bradford 1807) (Statutes of

1807); OLIVER H. PRINCE, A DIGEST OF THE LAWS OF THE STATE OF

GEORGIA 330–31 (Milledgeville, Grantland & Orme 1822) (Act of

1807); AN ACT REGULATING THE MILITIA, OF THE STATE OF INDIANA

19–20 (Corydon, Carpenter & Douglass 1824) (Act of 1824); LAWS

PASSED BY THE FOURTH GENERAL ASSEMBLY OF THE STATE OF

ILLINOIS, AT THEIR SECOND SESSION 23 (Vandalia, Robert Blackwell

1826) (Act of 1826).

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22 Opinion of the Court 21-12314

During the Founding era, minors generally lacked unre-

stricted access to firearms. By 1826, at least 21 of the 24 states ad-

mitted to the Union—representing roughly 89 percent of the pop-

ulation, CENSUS FOR 1820, at 18 (Washington, Gales & Seaton

1821)—had enacted laws that placed the onus on parents to provide

minors with firearms for militia service. These laws reflected that,

at common law, minors could not purchase weapons for them-

selves. Cf. Timbs v. Indiana, 139 S. Ct. 682, 688 (2019) (“In 1787, the

constitutions of eight States—accounting for 70% of the U.S. pop-

ulation—forbade excessive fines.” And by 1868, “the constitutions

of 35 of the 37 States—accounting for over 90% of the U.S. popula-

tion—expressly prohibited excessive fines.”).

University regulations from the Founding era also confirm

that minors needed parental consent to access firearms. At the

Founding, “[c]ollege authorities stood in the place of parents to the

students entrusted to their care.” Brian Jackson, The Lingering Leg-

acy of In Loco Parentis: An Historical Survey and Proposal for Reform,

44 VAND. L. REV. 1135, 1135–36 (1991). Acting in loco parentis, uni-

versities could impose “[a]ny rule or regulation for the betterment

of” their students’ “physical, moral, and mental welfare.” Id. at

1146; accord 1 BLACKSTONE, supra, at *453 (A father could “delegate

part of his parental authority, during his life, to the tutor or school-

master of his child; who is then in loco parentis, and has such a por-

tion of the power of the parent committed to his charge . . . as may

be necessary to answer the purposes for which he is employed.”).

And universities “were permitted to deny students the autonomy

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21-12314 Opinion of the Court 23

and rights enjoyed by others in order to preserve institutional har-

mony.” Jackson, supra, at 1147.

Exercising this parental authority, universities commonly

restricted firearm access both on and off campus. See generally Me-

gan Walsh & Saul Cornell, Age Restrictions and the Right to Keep and

Bear Arms, 1791–1868, 108 MINN. L. REV. 3049, 3069–75 (2024);

Spitzer, supra, at 112–19 (collecting dozens of public and private

university codes and concluding that “policies restricting students’

access to weapons were common, if not ubiquitous” in the 1700s

and 1800s). For example, in 1795, Yale College prohibited students

from “keep[ing] any kind of fire-arms, or gun-powder.” THE LAWS

OF YALE-COLLEGE, IN NEW HAVEN, IN CONNECTICUT, ENACTED BY

THE PRESIDENT AND FELLOWS, THE SIXTH DAY OF OCTOBER, A.D.

1795, at 26 (New Haven, Thomas Green & Son 1800). In 1810, the

University of Georgia prohibited students from possessing firearms

off campus. See The Minutes of the Senatus Academicus 1799–1842,

UNIV. OF GA. LIBRS. 86 (Nov. 4, 1976), https://perma.cc/EW28-

VU83 (prohibiting students from possessing “any gun” or “other

offensive weapon in College” or “out of the college in any case

whatsoever”). Later, the University of Virginia prohibited students

from keeping “weapons or arms of any kind, or gunpowder” on

school grounds. University of Virginia Board of Visitors Minutes,

ENCYCLOPEDIA VA. 6–7 (Oct. 5, 1824), https://perma.cc/F32R-

AWK9. And students at the University of North Carolina could not

“keep . . . fire arms, or gunpowder” nor “carry, keep, or own at the

College . . . any deadly weapon” nor “use fire arms without permis-

sion from the President.” ACTS OF THE GENERAL ASSEMBLY AND

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24 Opinion of the Court 21-12314

ORDINANCES OF THE TRUSTEES FOR THE ORGANIZATION AND

GOVERNMENT OF THE UNIVERSITY OF NORTH-CAROLINA 15 (Ra-

leigh, The Raleigh Register 1838).

Mid-to-late-nineteenth-century laws consistent with these

principles further establish that our law historically precluded the

purchase of firearms by individuals under the age of 21. In the sec-

ond half of the nineteenth century, 20 jurisdictions enacted laws

that restricted access to arms for minors. Most of those laws pro-

hibited all methods of providing arms to individuals under the age

of 21. And only a few of these laws allowed parents to provide arms

to their children.

Alabama, Tennessee, Kentucky, Indiana, Missouri, Illinois,

Maryland, West Virginia, Wisconsin, Iowa, Louisiana, Wyoming,

the District of Columbia, North Carolina, and Texas prohibited

selling, loaning, or giving dangerous weapons, including pistols, to

individuals under the age of 21. 1855–56 Ala. Laws 17; TENN. CODE

§ 4864 (1858), reprinted in THE CODE OF TENNESSEE ENACTED BY THE

GENERAL ASSEMBLY OF 1857–’8, at 871 (Nashville, E. G. Eastman &

Co. 1858); 1860 Ky. Acts 245; 1875 Ind. Acts 59; MO. REV. STAT.

§ 1274 (1879), reprinted in 1 THE REVISED STATUTES OF THE STATE

OF MISSOURI 1879, at 224 (Jefferson, Carter & Regan 1879); 1881 Ill.

Laws 73; 1882 Md. Laws 656; 1882 W. Va. Acts 421; 1883 Wis. Sess.

Laws 290 (vol. 1); 1884 Iowa Acts 86; 1890 La. Acts 39; 1890 Wyo.

Terr. Sess. Laws 140; J. A. VAN ORSDEL & FENIMORE CHATTERTON,

REVISED STATUTES OF WYOMING IN FORCE DECEMBER 1, 1899, at

1253 (Laramie, Chaplin, Spafford & Mathison 1899) (codifying the

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21-12314 Opinion of the Court 25

territorial law); 27 Stat. 116–17 (1892); 1893 N.C. Sess. Laws 468–

69; 1897 Tex. Gen. Laws 221–22; see also Saltonstall v. Riley, 28 Ala.

164, 172 (1856) (describing a “minor under the age of twenty-one

years”); Warwick v. Cooper, 37 Tenn. (5 Sneed) 659, 660–61 (1858)

(referring to 21 as the age of majority); Newland v. Gentry, 57 Ky.

(18 B. Mon.) 666, 671 (1857) (referring to 21 as the age of majority);

MO. REV. STAT. § 2559, supra, (setting the age of majority at 21 for

males and 18 for females); 64 ILL. COMP. STAT. § 1 (1881) (setting

the age of majority at 21 for males and 18 for females); Hepp v.

Huefner, 20 N.W. 923, 924 (Wis. 1884) (referring to 21 as the age of

majority); In re Mells, 20 N.W. 486, 486 (Iowa 1884) (referring to 21

as the age of majority); State v. Kittelle, 15 S.E. 103, 103 (N.C. 1892)

(referring to 21 as the age of majority); 1 JOHN SAYLES & HENRY

SAYLES, SAYLES’ ANNOTATED CIVIL STATUTES OF THE STATE OF

TEXAS 1009 (St. Louis, The Gilbert Book Co. 1898) (setting the age

of majority at 21 for males and unmarried females). But, of those

jurisdictions, only four excepted parents or guardians from their

prohibitions on providing arms to individuals under the age of 21.

1860 Ky. Acts 245; MO. REV. STAT. § 1274 (1879), supra; 1897 Tex.

Gen. Laws 221–22; 1881 Ill. Laws 73 (employers, too).

Five other jurisdictions regulated access to arms for individ-

uals under the age of 21 in slightly different ways. Mississippi pro-

hibited the sale of deadly weapons including pistols to individuals

under the age of 21 but did not prohibit other ways of providing

arms to those individuals. 1878 Miss. Laws 175; see also Acker v.

Trueland, 56 Miss. 30, 34 (1878) (referring to 21 as the age of major-

ity). Similarly, Delaware prohibited the sale of “deadly weapon[s]

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26 Opinion of the Court 21-12314

. . . other than an ordinary pocket knife” to minors. 16 Del. Laws

716 (1881); see also REVISED STATUTES OF THE STATE OF DELAWARE

OF EIGHTEEN HUNDRED AND FIFTY-TWO 484–85 (Wilmington,

James & Webb 1874) (setting the age of majority at 21 for males

and 18 for females). Georgia prohibited “sell[ing], giv[ing]

lend[ing], or furnish[ing]” a pistol to a minor unless “circumstances

justif[ied]” the use of the weapon to “defend[] life, limb or prop-

erty.” 1876 Ga. Laws 112. Nevada and Kansas went further. Nevada

prohibited individuals under the age of 21 from “wear[ing] or

carry[ing] . . . dangerous or deadly weapons[],” including pistols.

1885 Nev. Stat. 51. And Kansas prohibited their “possession” of pis-

tols and “other dangerous weapon[s].” 1883 Kan. Sess. Laws 159;

see also Burgett v. Barrick, 25 Kan. 526, 527–29 (1881) (referring to 21

as the age of majority).

The law of the Founding era, which restricted the purchase

of firearms by minors, continued into the nineteenth century in the

form of statutory prohibitions. By the end of the nineteenth cen-

tury, at least 19 states and the District of Columbia—representing

roughly 55 percent of the population of states admitted to the Un-

ion, CENSUS OFF., DEP’T OF THE INTERIOR, TWELFTH CENSUS OF THE

U.S. TAKEN IN THE YEAR 1900, CENSUS REPORTS, VOL. I:

POPULATION 2 (1901) (1890 population data)—restricted the pur-

chase or use of certain firearms by minors. When the common-law

regime became less effective at restricting minors’ access to fire-

arms, statutes increasingly did the work.

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21-12314 Opinion of the Court 27

These mid-to-late-nineteenth-century laws also carried the

threat of criminal penalties. Alabama, Kentucky, Indiana, Missis-

sippi, Illinois, Maryland, Kansas, and Wyoming imposed only fines

for violations of their statutes. 1855–56 Ala. Laws 17; 1860 Ky. Acts

245; 1875 Ind. Acts 59; 1878 Miss. Laws 175; 1881 Ill. Laws 73; 1882

Md. Laws 656; 1883 Kan. Sess. Laws 159; 1890 Wyo. Terr. Sess.

Laws 140. But Tennessee, Georgia, Missouri, Delaware, West Vir-

ginia, Wisconsin, Iowa, Nevada, Louisiana, the District of Colum-

bia, North Carolina, and Texas threatened violators with imprison-

ment. TENN. CODE § 4864 (1858), supra; 1876 Ga. Laws 112; THE

CODE OF THE STATE OF GEORGIA 782 (R. H. Clark, et al. eds., 2d ed.

1873); MO. REV. STAT. § 1274 (1879), supra; 16 Del. Laws 716 (1881);

1882 W. Va. Acts 421; 1883 Wis. Sess. Laws 290 (vol. 1); 1884 Iowa

Acts 86; 1885 Nev. Stat. 51; 1890 La. Acts 39; 27 Stat. 116–17 (1892);

1893 N.C. Sess. Laws 468–69; 1897 Tex. Gen. Laws 221–22.

The age of the majority “remained unchanged” in the

United States “from the country’s founding well into the twentieth

century.” Hamilton, supra, at 64. When World War II necessitated

lowering the conscription age to 18, states lowered the age of ma-

jority too. Id. And, in 1971, the ratification of the Twenty-Sixth

Amendment guaranteed the right to vote to individuals at the age

of 18. But for much of the first two centuries of our nation, our law

limited the rights of individuals under the age of 21, including their

purchase of firearms.

From this history emerges a straightforward conclusion: the

Florida law is consistent with our regulatory tradition in why and

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28 Opinion of the Court 21-12314

how it burdens the right of minors to keep and bear arms. See

Rahimi, 144 S. Ct. at 1898. Because minors have yet to reach the

age of reason, the Florida law prohibits them from purchasing fire-

arms, yet it allows them to receive firearms from their parents or

another responsible adult.

The Florida law has the same “why” as the Founding-era

limitations: individuals under the age of 21 have not reached the

age of reason and lack the judgment and discretion to purchase fire-

arms responsibly. To reduce the likelihood that another individual

like Nikolas Cruz would lawfully purchase a firearm and use it to

inflict grievous harm on himself or others, the Florida law restricts

the purchase of firearms by individuals under the age of 21. See FLA.

STAT. § 790.065(13). Likewise, our legal system “imposed age limits

on all manner of activities that required judgment and reason” at

the Founding. Brown, 564 U.S. at 834 (Thomas, J., dissenting). But

when an individual reaches the age of reason and the need to pro-

tect him and the public from his immaturity and impulsivity dissi-

pates, the Florida law permits him to purchase firearms. See FLA.

STAT. § 790.065(13).

The Florida law is also consistent with our regulatory tradi-

tion in “how” it burdens the right. Founding-era law precluded in-

dividuals under the age of 21 from purchasing arms because they

lacked cash and the capacity to contract. Access to arms was a mat-

ter of parental consent. When Founding-era laws required minors

to carry arms for militia service, states required their parents to pro-

vide the arms. And universities, standing in for students’ parents,

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21-12314 Opinion of the Court 29

imposed significant restrictions on both firearm access and use.

Consistent with these Founding-era limitations, states in the nine-

teenth century expressly prohibited the sale of arms to minors with

some exceptions for parents to provide firearms to their children.

The Florida law burdens the right no more than these historical

restrictions because it prohibits purchase but preserves access to

firearms with parental consent.

Notably, the Florida law is less restrictive than the law at the

Founding in some ways. The militia laws did not empower any in-

dividuals under the age of 21 to purchase arms. But the Florida law

contains exceptions permitting the purchase of a rifle or shotgun

by peace officers, correctional officers, or military personnel. FLA.

STAT. § 790.065(13). This exception is more generous than the Found-

ing-era militia laws because it empowers minors to purchase fire-

arms when needed for public service.

The Florida law fits comfortably within postratification tra-

dition too. Indeed, many postratification laws went further than

the Florida law does. Fifteen jurisdictions prohibited providing pis-

tols and other dangerous weapons under any circumstances to in-

dividuals under the age 21, not just selling them. Only six jurisdic-

tions permitted parents to provide arms to their children regardless

of circumstances—a step back from the parental consent of the

Founding era. And Nevada and Kansas prohibited possession by in-

dividuals under the age of 21. That the Florida law is less restrictive

than many of these postratification laws further confirms that it fits

within our regulatory tradition.

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30 Opinion of the Court 21-12314

To be sure, the common-law regime of the Founding era

differs from our modern regime of statutory regulation. But Su-

preme Court precedents do not require a modern law to “precisely

match its historical precursors.” Rahimi, 144 S. Ct. at 1898. Those

“precedents were not meant to suggest a law trapped in amber.”

Id. at 1897. And we do not “assume[] that founding-era legislatures

maximally exercised their power to regulate” or that the Second

Amendment imposes a “‘use it or lose it’ view of legislative author-

ity.” Id. at 1925 (Barrett, J., concurring). That kind of assumption is

especially unwarranted here where the limitations on the legal

rights of minors were so pervasive that states had no need to enact

restrictions that prohibited their purchase of firearms. Instead, the

inability to contract and the lack of a right to their own wages pre-

cluded minors from purchasing any goods on their own, except for

necessaries when their parents would not provide them. See

BREWER, supra, at 271; 2 KENT, supra, at 256–57; 1 BLACKSTONE, su-

pra, at *466.

The question is whether the modern law is “‘analogous

enough,’” and the Florida law is. Rahimi, 144 S. Ct. at 1898 (quoting

Bruen, 142 S. Ct. at 2133). Like the Founding-era legal regime, the

Florida law prevents purchases by minors. The difference between

the Florida law and the Founding-era regime is that the law at the

Founding was more restrictive than the Florida law because it pre-

vented the purchase of many goods besides firearms. The Florida

law does not violate the Second and Fourteenth Amendments be-

cause it restricts the rights of minors less than the Founding-era law

did.

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21-12314 Opinion of the Court 31

Although the Founding era lacked express prohibitions on

the purchase of firearms, the postratification period did not. The

laws from the mid-to-late nineteenth century make explicit what

was implicit at the Founding: laws may regulate the purchase of

firearms by minors. To that end, 18 jurisdictions expressly prohib-

ited the sale of certain arms to individuals under the age of 21 and

attached criminal penalties to those prohibitions.

The ways in which postratification laws are less restrictive

than the Florida law do not undermine our conclusion either.

Many of these laws arguably target only abnormally dangerous

weapons instead of all weapons. See, e.g., TENN. CODE § 4864

(1858), supra (“pistol, bowie-knife, dirk, Arkansas tooth-pick,

hunter’s knife, or like dangerous weapon, except a gun for hunting

or weapon for defence in travelling”); see also Brasher Dissenting

Op. at 30 (“[T]hese laws reflect a tradition of regulating specific

weapons that were considered unusually dangerous because they

could so easily be concealed.”). And some of these laws permitted

women to purchase arms at 18 years of age instead of 21. E.g., 1881

Ill. Laws 73; 64 ILL. COMP. STAT. § 1 (1881). Even if we accept that

the Florida law is more restrictive than the postratification laws in

these ways, that fact does not make the Florida law inconsistent

with our regulatory tradition. At the Founding, the law precluded

the purchase of any kind of firearm by a minor, whether male or

female. So, to the extent that the Florida law is more restrictive

than postratification laws, it does not matter because the Florida

law is nevertheless consistent with the law of the Founding.

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32 Opinion of the Court 21-12314

Judge Brasher’s dissenting opinion offers tales of

Founder/President youths shooting guns, Brasher Dissenting Op.

at 12–13 (recounting how Thomas Jefferson and John Adams and

eldest son John Quincy Adams used firearms as children for hunt-

ing and sport), to imply that it would violate the Second and Four-

teenth Amendments to restrict the purchase of firearms by minors

of any age, see id. at 3 (“[T]he majority has read an age limit into the

Second Amendment and that amendment alone.”); id. at 12

(“[T]here are no Founding-era laws disarming anyone based on

age.”); id. at 14 (“[F]ederal legislation simply required all national

select militia members to arrive armed for duty; there were no spe-

cific provisions about minors.”); id. at 16 (“[T]here were no Found-

ing-era laws prohibiting young adults from purchasing any firearm

at all.”); id. at 27 (“There were no age-based limitations on [the]

right to keep and bear arms either before, during, or immediately

after the adoption of the Bill of Rights.”). Judge Branch’s dissenting

opinion also implies that any age restriction is unconstitutional. See

Branch Dissenting Op. at 3 (“[T]he majority’s lone Founding-era

analogue . . . a contract-law doctrine . . . incidentally reached con-

tracts for firearms because it reached contracts by minors for any

non-necessity.”). But that position defies our legal tradition, which

“imposed age limits on all manner of activities that required judg-

ment and reason.” Brown, 564 U.S. at 834 (Thomas, J., dissenting).

Perhaps because that position is so difficult to defend, Judge

Brasher’s dissent frames the Florida law as one that supposedly tar-

gets “adults” between the ages of 18 and 21 even though the Florida

law, by its terms, covers all individuals under the age of 21. See, e.g.,

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21-12314 Opinion of the Court 33

Brasher Dissenting Op. at 1 (describing the Florida law as a prohi-

bition on “adult citizens between the ages of eighteen to twenty-

one from purchasing any kind of firearm”). The dissent then sug-

gests that its modern “adults” are individuals who possess some un-

specified set of legal rights. See id. at 20 (noting that individuals over

the age of 18 “can [now] be held to long term contracts” in Florida

and that their parents lack an “obligation to protect them, provide

for them, or ensure their safety”). And it concludes that Florida can-

not bar these “adults” from purchasing firearms today regardless of

their status at the Founding. Campbell and the Association take a

similar approach: Although they concede that Florida may restrict

the purchase of firearms by minors, they argue that Florida’s regu-

latory authority is somehow tied to the age of majority that it cur-

rently uses for most other rights.

The dissent’s attempt to avoid the weight of legal history by

labeling individuals between the ages of 18 and 21 as “adults” is un-

availing. The dissent fails to define its category of “adults” for fed-

eral constitutional purposes; it discounts the key fact that, at the

Founding and until the late twentieth century, the age of majority

was 21. Instead of reviewing the legal analogues for regulating the

rights of individuals under the age of 21 as minors, the dissent treats

contemporary “adults” as the so-called “analogues” of the adults of

the Founding era. Id. at 31 (“Not to belabor the point, but eighteen-

to twenty-one-year-olds in Florida today are analogous to adults,

not minors, at the time these statutes were enacted.”). The dissent

fails to explain which, or how many, modern rights push an indi-

vidual across the threshold from minor to adult under the Second

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34 Opinion of the Court 21-12314

Amendment. Taken to its logical end, the dissent’s position would

mean that the federal right to keep and bear arms turns on a sliding

scale defined by contemporary state law that varies from jurisdic-

tion to jurisdiction. The federal right could even mean something

entirely different in Florida next week depending on the public pol-

icy choices of its legislature.

That Florida has lowered the age of majority for some rights

does not mean that it has less power to restrict the rights of minors

than it did at the Founding. Although 21 was the near-universal age

of majority at the Founding, Hamilton, supra, at 64, Florida, in re-

cent decades, has lowered the age of majority for many rights to

18, see FLA. STAT. § 743.07. But not all states have lowered the age

of majority like Florida. See, e.g., MISS. CODE § 1-3-27 (establishing

21 years as the age of majority except with respect to the capacity

to enter contracts that affect personal or real property); ALA. CODE

§ 26-1-1(a) (establishing 19 years as the age of majority). And even

modern Florida laws bar individuals under the age of 21 from pur-

chasing alcohol and tobacco. See FLA. STAT. § 562.11(1)(a) (alcohol);

id. § 569.101(1) (tobacco). Judge Brasher’s dissent would have us

hold that the Second Amendment turns on an evolving standard of

adulthood that is divorced from the text of the Amendment and

from our regulatory tradition. We decline to do so. See THOMAS M.

COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH

REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE

AMERICAN UNION 54 (Boston, Little, Brown, & Co. 1868) (“A prin-

cipal share of the benefit expected from written constitutions

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21-12314 Opinion of the Court 35

would be lost if the rules they established were so flexible as to

bend to circumstances or be modified by public opinion.”).

In a real sense, Judge Brasher’s dissent erroneously reviews

the Florida law under an equal-protection standard masquerading

as an analysis under the Second Amendment. It asserts that the

Florida law cannot stand because the principle that minors were

subject to the power of their parents at the Founding does not ad-

equately support application of the law to individuals between the

ages of 18 and 21 today. Brasher Dissenting Op. at 21 (asserting that

“Florida cannot enforce its ban based on a historical justification

that does not exist in the present day”). In effect, the dissent applies

heightened scrutiny and asks whether the Florida law is sufficiently

tailored to the dissent’s chosen justification. But settled law makes

clear that we ordinarily review age classifications under the Equal

Protection Clause for rational basis, and the Florida law easily sat-

isfies that standard. See Gregory v. Ashcroft, 501 U.S. 452, 470 (1991)

(Because “age is not a suspect classification under the Equal Pro-

tection Clause,” a state “need therefore assert only a rational basis

for its age classification.”). Although the dissent contends that age

classifications that involve fundamental rights receive strict scru-

tiny, Brasher Dissenting Op. at 22, the Supreme Court has “recog-

nized that even where there is an invasion of protected freedoms

‘the power of the state to control the conduct of children reaches

beyond the scope of its authority over adults,’” Ginsberg v. New

York, 390 U.S. 629, 638 (1968) (quoting Prince v. Massachusetts, 321

U.S. 158, 170 (1944)). Indeed, the Supreme Court has described the

right to vote as “fundamental,” Harper v. Va. State Bd. of Elections,

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36 Opinion of the Court 21-12314

383 U.S. 663, 670 (1966), yet it has held that Congress could not use

its enforcement power under Section 5 of the Fourteenth Amend-

ment to require states to lower the voting age from 21 to 18, Oregon

v. Mitchell, 400 U.S. 112, 130 (1970). After all, Section 2 of the Four-

teenth Amendment itself uses 21 years as an age classification for

that right. U.S. CONST. amend. XIV, § 2 (reducing the “basis of rep-

resentation” of any state that “denie[s]” the “right to vote” to “any

of the male inhabitants of such State, being twenty-one years of

age”).

Florida did not lose its constitutional authority to regulate

minors’ access to firearms when it in recent decades bestowed on

individuals between the ages of 18 and 21 greater rights than they

would have enjoyed at the Founding. Indeed, that Florida distin-

guishes between the purchase of a firearm and other rights is con-

sistent with the Founding-era legal regime, which also distin-

guished between when individuals under the age of 21 could exer-

cise rights based on need and maturity. For example, individuals

under the age of 21 could enter valid contracts to purchase neces-

saries if their parents did not provide those necessaries. 2 KENT, su-

pra, at 256–57. The law also treated marriage contracts differently

than other contracts. See 1 BLACKSTONE, supra, at *433, 436. Boys

could validly marry at the age of 14, and girls could at the age of

12—the “years of discretion” for marriage. Id. at *436. These

Founding-era exceptions for the exercise of rights based on need or

judgments about maturity are no different from Florida’s contem-

porary judgment that only individuals with a greater degree of ma-

turity should be able to purchase firearms. And that judgment is

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21-12314 Opinion of the Court 37

one reserved for legislatures whose role it is to formulate policy

about legal adulthood—not courts. To this point, our dissenting

colleagues offer no response.

Nor does the fact that some states required minors to serve

in the militia establish that they had a right to unfettered firearm

access. Judge Brasher’s dissent mistakes the duty of some minors

to serve in the militia for a right to purchase firearms. See Brasher

Dissenting Op. at 13–16. Although minors between the ages of 18

and 21 could serve in the militia, there was no national requirement

that they do so. Instead, Congress permitted, but did not require,

states to mandate militia service for minors between 18 and 21

years of age. 1 Stat. at 271–72. And, consistent with that authority,

New Jersey, Ohio, and Kansas exempted minors from service in the

militia in the nineteenth century. ACTS OF THE FIFTY-FOURTH

GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY 3 (Trenton, Jo-

seph Justice 1829) (excluding minors under the age of 21 from the

militia); ACTS OF A GENERAL NATURE, PASSED BY THE FORTY SECOND

GENERAL ASSEMBLY OF THE STATE OF OHIO 53 (Columbus, Samuel

Medary 1844) (same); KAN. CONST. of 1859, art. VIII, § 1 (same).

Contrary to the dissent, the militia laws establish no national “ex-

pectation of gun ownership” by minors. Brasher Dissenting Op. at

14. They establish only that many state legislatures determined that

minors could be required to bear arms provided by their parents

and to use those arms under the command and supervision of mi-

litia officers.

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38 Opinion of the Court 21-12314

We also reject, as contrary to Supreme Court precedent,

Judge Branch’s dissenting opinion that we must rely only on fire-

arm-specific regulations from the Founding era and cannot con-

sider the common law of contracts that governed minors. See

Branch Dissenting Op. at 3. Reliance on the common-law regime

of contracts is appropriate because the Florida law prohibits the sale

of firearms—a kind of contract. And it adheres to Supreme Court

precedent because, in Rahimi, the Supreme Court relied on princi-

ples “[w]ell entrenched in the common law” that were not limited

to firearms. 144 S. Ct. at 1900. Specifically, the Supreme Court re-

lied on surety laws, which generally required that an individual

pledge to keep the peace and “could be invoked to prevent all

forms of violence.” Id. As the Rahimi Court explained, “the Second

Amendment permits more than just those regulations identical to

ones that could be found in 1791.” Id. at 1897–98.

Nor does it make any sense for Judge Branch’s dissenting

opinion to suggest that our citation of a decision refusing to enforce

a creditor’s purported contract with a minor, Ott’s Adm’r, 12 S.C.L.

(1 McCord) at 572, somehow proves that minors regularly pur-

chased firearms in the Founding era, see Branch Dissenting Op. at

7. Judge Branch’s dissent cites no firearm-sales contract with a mi-

nor enforced by any court, and it points to no evidence that minors

in any state regularly purchased firearms.

It bears repeating that it is unclear whether our dissenting

colleagues accept that any age restriction for the sale of firearms is

constitutional. If they do not, their position would require

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21-12314 Opinion of the Court 39

enjoining the enforcement of numerous federal and state laws, in-

cluding a federal law that prohibits licensed sellers from selling

“any firearm or ammunition” to an individual under the age of 18.

See 18 U.S.C. § 922(b)(1). But if our dissenting colleagues accept

that some age restrictions are constitutional—and they do not say

that they do—it is unclear what aspects of the Founding-era legal

regime they believe would support that position. Would the com-

mon-law regime of contracts be relevantly similar for limiting sales

of firearms to any minors? Or would a firearm-specific regulation

from that era be necessary? Would the common-law regime that

enshrined parental control be relevantly similar? Or would the leg-

islatures of that era have had to exercise that control? And if the

aspects of the common-law regime that we have invoked are rele-

vantly similar for upholding modern laws that prohibit sales of fire-

arms to minors under the age of 18 years, what principle of consti-

tutional law do our dissenting colleagues believe empowers the

federal judiciary to override the judgment of the Florida legislature

to draw the line at 21 years, the same line that prevailed during the

Founding era and throughout most of American history? Keep in

mind that Congress too has drawn the same line of 21 years for

sales of firearms that are not “a shotgun or rifle.” Id. On these ques-

tions, our dissenting colleagues exercise a right to remain silent. See

Branch Dissenting Op. at 1 n.1 (“I express no opinion on any re-

strictions placed upon Americans under 18 years of age.”).

The recent contrary decision of our sister circuit—which ig-

nored how the common-law regime restricted minors’ access to

firearms—also fails to persuade us. Reese v. Bureau of Alcohol,

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40 Opinion of the Court 21-12314

Tobacco, Firearms & Explosives, 127 F.4th 583, 586 (5th Cir. 2025)

(holding unconstitutional a federal law, 18 U.S.C. § 922(b)(1), (c)(1),

that prohibits licensees from selling handguns to minors between

the ages of 18 and 21). Our sister circuit considered state militia

laws and university regulations without reference to the common

law at the Founding. See id. at 596–99. But even mid-nineteenth

century jurists described “the unwritten law” as the “basis of our

jurisprudence.” Commonwealth v. Chapman, 54 Mass. (13 Met.) 68,

69 (1847). The common law “furnishe[d] the rules by which public

and private rights [we]re established and secured, the social rela-

tions of all persons regulated, their rights, duties, and obligations

determined, and all violations of duty redressed and punished.” Id.

From those jurists’ perspective, without the common law, “the

written law, embracing the constitution and statute laws, would

constitute but a lame, partial, and impracticable system.” Id.; see

also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 3 (2012) (“Ours is a common-law

tradition . . . . Statutes were a comparatively infrequent source of

English law through the mid-19th century.”). Indeed, in the Found-

ing era, “crimes were often defined by the common law rather than

by statute.” STUART BANNER, THE DECLINE OF NATURAL LAW 50

(2021). And after the American Revolution, the states quickly

“passed ‘reception statutes’ to adopt English common law as judi-

cial precedent.” BRYAN A. GARNER, ET AL., THE LAW OF JUDICIAL

PRECEDENT 738 (2016); see generally Ford W. Hall, The Common Law:

An Account of Its Reception in the United States, 4 VAND. L. REV. 791,

798–800 (1951); see also ANTHONY J. BELLIA JR. & BRADFORD R.

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21-12314 Opinion of the Court 41

CLARK, THE LAW OF NATIONS AND THE UNITED STATES

CONSTITUTION 10 (2017) (“Each state adopted the common law of

England and, by extension, key parts of the law of nations.”).

The written laws of the Founding era must be understood

in the light of that predominant common-law regime. See William

Baude & Robert Leider, The General-Law Right to Bear Arms, 99

NOTRE DAME L. REV. 1467, 1468–70 (2024) (“The constitutionaliza-

tion of a preexisting right means that . . . the Constitution’s refer-

ence to a legal right must be understood by learning the historical

customary law that defined and governed the right before its codi-

fication.”); J. Joel Alicea, Bruen Was Right, 174 U. PA. L. REV. (forth-

coming 2025) (manuscript at 32–33), https://perma.cc/C592

-T8GA (“[T]he more reasonable reading is that Bruen does not, in

fact, limit the category of historical evidence to regulations. Bruen

is an originalist methodology . . . . In other contexts, the Court has

rightly looked to many different sources to determine the original

meaning of the Constitution.”); see generally Stewart Jay, Origins of

Federal Common Law: Part Two, 133 U. PA. L. REV. 1231 (1985); An-

thony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court,

54 WM. & MARY L. REV. 655 (2013); Caleb Nelson, The Persistence of

General Law, 106 COLUM. L. REV. 503 (2006); William Baude, et al.,

General Law and the Fourteenth Amendment, 76 STAN. L. REV. 1185

(2024). That common-law regime restricted minors’ ability to pur-

chase firearms. The state statutes that obligated parents to provide

firearms for minors’ militia service confirm that minors had limited

access, and the many university regulations that restricted firearm

possession by students confirm that minors’ access was a matter of

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42 Opinion of the Court 21-12314

parental consent. Because the Fifth Circuit failed to consider the

background common-law regime, it misapprehended the import of

these written laws. See Reese, 127 F.4th at 597 (The “requirements

that parents furnish firearms for their sons’ militia service do not

mean that the military-age young men lacked the right to keep and

bear (or obtain) such arms themselves.”); id. at 596 (“Actions taken

in loco parentis say little about the general scope of Constitutional

rights and protections.”).

Nor are we persuaded that two other considerations present

in Rahimi command a different conclusion. First, although the Su-

preme Court acknowledged in Rahimi that section 922(g)(8)(C)(i)

did not apply to an entire class of “persons thought by a legislature

to present a special danger of misuse,” it did so because the Found-

ing-era comparators, surety and going-armed laws, did not apply

to entire classes either. 144 S. Ct. at 1901–02. Section 922(g)(8)(C)(i)

“presumes, like the surety laws before it, that the Second Amend-

ment right may only be burdened once a defendant has been found

to pose a credible threat to the physical safety of others.” Id. at 1902.

Unlike the surety and going-armed laws, the rule that minors had

not “arriv[ed] at years of discretion” and lacked legal capacity ap-

plied during the Founding era to all individuals under the age of 21.

1 BLACKSTONE, supra, at *452–53. So, it does not matter that the

Florida law applies to a class of individuals because the Founding-

era comparators did too.

Second, the lack of criminal penalties at the Founding is not

dispositive, especially in the light of the criminal penalties that

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21-12314 Opinion of the Court 43

emerged during the nineteenth century. Rahimi considered the

penalty that attaches to a firearm regulation as a “relevant,” but not

necessary, “aspect of the burden.” 144 S. Ct. at 1902. Violations of

the Florida law carry the possibility of imprisonment of up to five

years and a fine of up to $5,000. FLA. STAT. §§ 790.065(13),

775.082(3)(e), 775.083(1)(c). The law at the Founding did not im-

pose criminal penalties on individuals under the age of 21 who pur-

chased firearms. But postratification laws, which prohibited the

purchase of firearms by individuals under the age of 21 consistent

with Founding-era limitations, did threaten violators with fines and

imprisonment. E.g., TENN. CODE § 4864 (1858), supra. And the law

at the Founding was not toothless either. Voidability threatened

sellers with a “high risk” that they could not recover goods sold if

they contracted with infants. BREWER, supra, at 271. As a criminal

penalty might discourage an individual in Florida from purchasing

a firearm, voidability so discouraged sellers such that “infants

[were] effectively unable to form contracts.” Id. Although there

was no risk of imprisonment until the nineteenth century, other

incentives nevertheless discouraged the sale of firearms to individ-

uals under the age of 21. The burden on the right is not so different

as to compel the conclusion that this “relevant aspect” deserves dis-

positive weight.

Finally, we assume, but do not decide, that individuals under

the age of 21 are part of “the people” protected by the Second

Amendment. Some have argued that we need not look beyond the

text of the Second Amendment to determine whether laws like the

Florida law are constitutional because these individuals are not part

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44 Opinion of the Court 21-12314

of “the people” protected by the Amendment. See, e.g., Lara v.

Comm’r Pa. State Police, 125 F.4th 428, 447 (3d Cir. 2025) (Restrepo,

J., dissenting) (“The public in 1791 did not understand those under

21 to be part of ‘the people’ protected by the Second Amend-

ment.”); see also Bruen, 142 S. Ct. at 2129–30 (“When the Second

Amendment’s plain text covers an individual’s conduct, the Con-

stitution presumptively protects that conduct.”); cf. Brown, 564 U.S.

at 821 (Thomas, J., dissenting) (“The practices and beliefs of the

founding generation establish that ‘the freedom of speech,’ as orig-

inally understood, does not include a right to speak to minors (or a

right of minors to access speech) without going through the mi-

nors’ parents or guardians.”). But others have pointed to the Su-

preme Court’s statement that “the people” includes “all members

of the political community,” Heller, 554 U.S. at 580, to argue that

these individuals are part of “the people” protected by the Amend-

ment and that “the people” protected by the Second Amendment

are the same as “the people” protected by the First and Fourth

Amendments, see, e.g., Lara, 125 F.4th at 435–38 (majority opinion);

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

(The text of the Constitution “suggests that ‘the people’ protected

by the Fourth Amendment, and by the First and Second Amend-

ments, . . . refers to a class of persons who are part of a national

community.”). Those amendments protect individuals under the

age of 21. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969) (free speech); New Jersey v. T.L.O., 469 U.S. 325, 341

(1985) (unreasonable searches and seizures). Because the parties as-

sume that minors are among “the people” protected by the Second

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21-12314 Opinion of the Court 45

Amendment and the Florida law is consistent with our regulatory

tradition in any event, we assume that the Second Amendment

protects individuals under the age of 21.

The Florida law that prohibits minors from purchasing fire-

arms does not violate the Second and Fourteenth Amendments be-

cause it is consistent with our historical tradition of firearm regula-

tion. From the Founding to the late-nineteenth century, our law

limited the purchase of firearms by minors in different ways. The

Florida law also limits the purchase of firearms by minors. And it

does so for the same reason: to stop immature and impulsive indi-

viduals, like Nikolas Cruz, from harming themselves and others

with deadly weapons. Those similarities are sufficient to confirm

the constitutionality of the Florida law.

IV. CONCLUSION

The judgment in favor of the Commissioner is AFFIRMED.

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21-12314 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, joined by JORDAN, Circuit Judge, as to

Parts I and II, and by ABUDU, Circuit Judge, as to Part III, Concur-

ring:

I join in the Majority Opinion’s excellent explanation of why

the Marjory Stoneman Douglas High School Public Safety Act, see

Fla. Stat. § 790.065(13), “is consistent with this Nation’s historical

tradition of firearm regulation,” N.Y. State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 17 (2022). I write separately to add three

thoughts.

First, in concluding Florida’s law is constitutional under the

Second Amendment, I agree with the Majority Opinion that here,

we need not rely heavily on the Reconstruction Era laws that

barred the sale of some firearms to those under 21 (“Under-21s”).

That’s so because the Founding Era perceived the problem that

Under-21s “lacked the reason and judgment necessary to be trusted

with legal rights.” Maj. Op. at 15. So its common law imposed

“relevantly similar,” Bruen, 597 U.S. at 29, restrictions on Under-

21s’ right to keep and bear arms to the Florida law’s. But I write

separately to show that we could rely heavily on the Reconstruc-

tion Era laws because they represent the states’ response to a new

and different problem—an unprecedented kind of Under-21 fire-

arm violence—that began to arise during the nineteenth century.

And they are also “relevantly similar” to Florida’s law.

Second, modern medical science bolsters the Majority Opin-

ion’s conclusion that Florida’s law limits Under-21s’ ability to buy

firearms for the same reasons the common law did during the

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2 ROSENBAUM, J., Concurring 21-12314

Founding Era. As I’ve noted, the Majority Opinion explains that

the common law presumed that Under-21s “lacked the reason and

judgment necessary to be trusted with legal rights.” Maj. Op. at 15.

Modern medicine confirms our Founders’ hunch. As it turns out,

the common-law principle is based on the manifestation of what

we now know to be scientific fact. The prefrontal cortex, the part

of the brain responsible for exercising judgment and moderating

behavior in social situations, is one of the last regions of the brain

to mature—and it doesn’t hit that point until around the age of 25.

So Florida adhered to “this Nation’s historical tradition of firearm

regulation” when it enacted a law designed to moderate the risk

Under-21s’ limited reasoning and decisionmaking ability may pose

to themselves and the public at large.

Third, I agree with the Majority Opinion’s decision to leave

for another day whether Founding Era or Reconstruction Era evi-

dence controls Bruen’s historical inquiry, Maj. Op. at 14, if a conflict

arises between the two or the Founding Era is silent on the issue. I

write separately to emphasize that good reasons favor that deci-

sion. For starters, it’s not necessary to resolve the question because

no conflict exists here between Founding Era and Reconstruction

Era history. Second, many constitutional scholars and courts have

weighed in on the side of Reconstruction Era history in a conflict

or Founding Era silence. And for good reason. Among others, the

Constitution’s meaning is fixed to the understanding of those who

ratified it, so we interpret the Constitution’s provisions, including

those guaranteeing our rights, at the time the people adopted

them. District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008).

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21-12314 ROSENBAUM, J., Concurring 3

And when we speak of the incorporation of the Second Amend-

ment right against the states, that occurred in 1868 when Ameri-

cans adopted the Fourteenth Amendment. See Bruen, 597 U.S. at

37–38. Finally, modern Second Amendment jurisprudence is still

in its infancy. So allowing more time for courts and scholars to

weigh in on the question will help us reach the best understanding.

I discuss each of my three points in more detail below.

I. The states’ response to a new problem—an unprece-

dented kind of Under-21 firearm violence—that be-

gan to arise during the nineteenth century because of

unprecedented societal and technological change is

“relevantly similar” to Florida’s law.

The Majority Opinion explains why both Founding Era and

nineteenth-century laws are relevantly similar to Florida’s law and

why they show that Florida’s law is constitutional. In this Part, I

write to add a few thoughts on the nineteenth-century history.

Before diving into that history, though, I pause to review

some principles that govern our historical inquiry. The Supreme

Court has recognized that times change, and with them, so do tech-

nology and societal problems. See Bruen, 597 U.S. at 27; United

States v. Rahimi, 602 U.S. 680, 691–92 (2024). As a result, “[t]he reg-

ulatory challenges posed by firearms today are not always the same

as those that preoccupied the Founders in 1791 or the Reconstruc-

tion generation in 1868.” Bruen, 597 U.S. at 27. Yet the Second

Amendment was “intended to endure for ages to come, and conse-

quently, to be adapted to the various crises of human affairs.”

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4 ROSENBAUM, J., Concurring 21-12314

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis

omitted).

In reconciling the Second Amendment with modern soci-

ety’s problems and technology, the Court has explained that the

Second Amendment is not “a law trapped in amber.” Rahimi, 602

U.S. at 691. Indeed, “the Second Amendment permits more than

just those regulations identical to ones that could be found in 1791.”

Id. at 691–92. So our inquiry asks whether the modern law is “rel-

evantly similar to laws that our tradition is understood to permit,

applying faithfully the balance struck by the founding generation

to modern circumstances.” Id. at 692 (cleaned up). That question

requires us to consider “[w]hy and how the regulation burdens the

right” to keep and bear arms. Id. “For example, if laws at the

founding regulated firearm use to address particular problems, that

will be a strong indicator that contemporary laws imposing similar

restrictions for similar reasons fall within a permissible category of

regulations.” Id.

But sometimes new problems arise, and legislatures must

address “unprecedented societal concerns or dramatic technologi-

cal changes.” Bruen, 597 U.S. at 27; see Bianchi v. Brown, 111 F.4th

438, 464 (4th Cir. 2024) (en banc) (“These are not our forebears’

arms, and these are not our forebears’ calamities. We thus take the

instruction of Bruen to engage in a ‘more nuanced approach’ to ad-

dress these ‘unprecedented societal concerns.’” (quoting Bruen, 597

U.S. at 27)).

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21-12314 ROSENBAUM, J., Concurring 5

When that happens, a challenged law often will not simply

be “an updated model of a historical counterpart.” Rahimi, 602 U.S.

at 739 (Barrett, J., concurring). But it may well still be constitu-

tional.

The question is whether “the challenged regulation is con-

sistent with the principles that underpin our regulatory tradition,”

id. at 692 (Roberts, C.J., majority) (emphasis added), not whether

the challenged regulation has a historical “twin” or “cousin,” id. at

739 (Barrett, J., concurring). And to answer that question, we must

view the principles underlying our regulatory tradition through the

correct lens, adjusting the focus to “just the right level of general-

ity” so that we are continuing to respect the Second Amendment,

see id. at 740, while not “trap[ping] [the law] in amber,” id. at 691

(Roberts, C.J., majority). Put differently, we must ask ourselves

whether we are “endorsing outliers that our ancestors would never

have accepted.” Bruen, 597 U.S. at 30 (quoting Drummond v. Robin-

son, 9 F.4th 217, 226 (3d Cir. 2021)).

Bruen suggests that analogical reasoning—comparing the

“why” and the “how” of historic laws to the challenged law—is one

way to resolve the questions our historical inquiry poses. Still, the

Court explained that it didn’t conduct an “exhaustive survey of the

features that render regulations” consistent with our Nation’s tra-

dition of firearm regulation. Id. at 29. Other factors also help us

assess whether a historic law can serve as a “relevantly similar” an-

alogue for a law that addresses “circumstances beyond those the

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6 ROSENBAUM, J., Concurring 21-12314

Founders specifically anticipated.” Id. at 28–29. I mention two be-

low.

First, if the “proliferation of ” analogues to a challenged law

“coincides with the” new changes or technological developments,

that may suggest that the modern law can pass constitutional mus-

ter. Antonyuk v. James, 120 F.4th 941, 1022 (2d Cir. 2024). Today’s

laws, though they may in some ways regulate arms-bearing behav-

ior “to an extent beyond what was done at the founding,” Rahimi,

602 U.S. at 692, or through “different means,” Bruen, 597 U.S. at 26,

need only impose a “comparable burden” that is “comparably jus-

tified” by new societal problems and technological advancements,

id. at 29. See, e.g., Bianchi, 111 F.4th at 464 (“[L]egislatures, since the

time of our founding, have responded to the most urgent and visi-

ble threats posed by excessively harmful arms with responsive and

proportional legislation.”).

After all, “founding-era legislatures” generally did not “max-

imally exercise[] their power to regulate,” and the Constitution

does not “adopt[] a ‘use it or lose it’ view of legislative authority.”

Rahimi, 602 U.S. at 739–40 (Barrett, J., concurring). So when gov-

ernments enact a new solution to solve a new problem, that law

may still “fit[] neatly within” our regulatory tradition despite differ-

ences from its historical predecessors. Id. at 698 (Roberts, C.J., ma-

jority); see, e.g., United States v. Diaz, 116 F.4th 458, 471 & n.5 (5th

Cir. 2024) (relying on one historical analogue to supply the “why”

and on another to separately supply the “how”).

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21-12314 ROSENBAUM, J., Concurring 7

Second, if a proposed historical analogue has been “reason-

ably consistent and longstanding,” that favors the conclusion that

the modern law accords with a tradition of firearm regulation.

Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring); see Heller, 554

U.S. at 626 (confirming “nothing in our opinion should be taken to

cast doubt on longstanding prohibitions”); Bruen, 597 U.S. at 30 (ex-

plaining laws are more likely constitutional where there are “no dis-

putes regarding the lawfulness of such prohibitions”).

We generally don’t “repeat[]” unconstitutional acts and al-

low them “to crystallize into a regular practice.” Rahimi, 602 U.S.

at 724 (Kavanaugh, J., concurring) (quoting United States v. Midwest

Oil Co., 236 U.S. 459, 472–73 (1915)); accord McPherson v. Blacker, 146

U.S. 1, 27 (1892); The Pocket Veto Case, 279 U.S. 655, 688–90 (1929);

Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002); NLRB v.

Noel Canning, 573 U.S. 513, 525–26 (2014); cf. Washington v. Glucks-

berg, 521 U.S. 702, 710, 723–24 (1997) (finding no fundamental right

where longstanding laws regulate that purported right); Kerry v.

Din, 576 U.S. 86, 95 (2015) (plurality opinion) (same); Dobbs v. Jack-

son Women’s Health Org., 597 U.S. 215, 239–41 (2022) (same); Dep’t

of State v. Munoz, 602 U.S. 899, 911–12 (2024) (same). So regular or

longstanding practices can imply constitutionality.

And we view that implication of constitutionality as even

stronger if a particular practice has gone unchallenged (or survived

challenges) in jurisdictions that enforce “analogous arms-bearing

rights” through “interpretation[s] of . . . state constitutional provi-

sions adopted by . . . state courts.” See Heller, 554 U.S. at 585 &

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8 ROSENBAUM, J., Concurring 21-12314

nn.8–9, 600–05, 610–14 (identifying jurisdictions that secure the

same preexisting right as does the Second Amendment). Presum-

ably, lawyers over the past two centuries would have sought to vin-

dicate their clients’ constitutional rights. That they didn’t (or failed

in doing so) is highly probative of the conclusion that a similar,

modern regulation does not violate those rights. Cf. Bruen, 597 U.S.

at 27 (“[I]f . . . proposals were rejected on constitutional grounds,

that rejection surely would provide some probative evidence of un-

constitutionality.”).

To be clear, I’m not suggesting that “freewheeling reliance

on historical practice,” “unmoored from [the] original meaning”

of the Second and Fourteenth Amendments, may establish modern

regulations’ constitutionality. Rahimi, 602 U.S. at 738 (Barrett, J.,

concurring) (cleaned up). “[T]he use of postenactment history,” of

course, “requires some justification other than originalism sim-

pliciter.” 1 Id.

1 Still, I do not imply that post-ratification history—or “tradition”—has the

limited use (or even the “irrelevan[ce]”) that Judge Newsom suggests it does.

Newsom Conc. Op. at 1 (citation and emphasis omitted). Given the length of

this opinion and the varied subjects it addresses already, I will leave for another

day a fuller explanation of why I disagree. But for now, it suffices to note two

points. First, our Framers intended post-ratification history, even some his-

tory from long after the Founding, to play an important role in constitutional

interpretation. Liquidating constitutional indeterminacies is a prime example.

See THE FEDERALIST NO. 37 (James Madison) (“All new laws . . . are considered

as more or less obscure and equivocal, until their meaning be liquidated and

ascertained by a series of particular discussions and adjudications.”); see gener-

ally William Baude, Constitutional Liquidation, 71 STAN. L. REV. 1 (2019)

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21-12314 ROSENBAUM, J., Concurring 9

But consistent and longstanding practices may “reinforce

our understanding of the Constitution’s original meaning,” includ-

ing “the scope of the pre-existing right that the people enshrined in

our fundamental law.” Id. at 738–39 (citation omitted). And they

may do so “even when that practice began after the founding era.”

Noel Canning, 573 U.S. at 525.

For instance, if Founding Era practice plausibly supports

two interpretations of the Second Amendment’s scope—one that

suggests a modern law’s constitutionality and one that does not—

a well-established, post-Founding practice may confirm which of

the two controls. See, e.g., Hanson v. District of Columbia, 120 F.4th

223, 238 (D.C. Cir. 2024) (relying on post-Reconstruction and early-

twentieth century practice to define the “relevant historical tradi-

tion” as “the regulation of weapons that are particularly capable of

unprecedented lethality and not, as the dissent would have [had] it,

upon the regulation of Bowie knives specifically”); cf. Antonyuk, 120

F.4th at 1022 (concluding public parks are sensitive places because

the late-nineteenth century “municipal tradition of regulating

(describing the historical basis for constitutional liquidation and explaining

“[p]rivileging early practice through liquidation is tempting but wrong”); see

also Stephen E. Sachs, Originalism as A Theory of Legal Change, 38 HARV. J.L. &

PUB. POL’Y 817, 855–57 (2015) (explaining constitutional liquidation is not in-

consistent with originalism—and may be affirmatively originalist—because it

may reflect an “actual Founding-era legal rule”). And second, as I’ve ex-

plained, we have long considered (in fact, one might say it’s a tradition to con-

sider) “tradition” in constitutional analysis. See Rahimi, 602 U.S. at 726–29 &

n.5 (Kavanaugh, J., concurring) (collecting cases spanning more than two cen-

turies).

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10 ROSENBAUM, J., Concurring 21-12314

firearms in urban public parks” was “apparently accepted without

any constitutional objection by anyone”).

Here, the nineteenth-century history calls for us to employ

both these tools.

First, in that century, a problem that didn’t and couldn’t have

existed during the Founding Era arose for the first time: an unprec-

edented kind of lethal, gun-related violence that Under-21s largely

inflicted. The new violence became possible because of revolution-

ary advances in firearms technology. And the urbanization and in-

dustrialization of the United States in the Antebellum, Civil War,

and Reconstruction periods enabled Under-21s to buy these newly

disruptive firearms for the first time. This perfect storm caused the

common-law concern that Under-21s lack the necessary reason and

judgment to buy arms to manifest in a way far more dangerous

than our “Founders specifically anticipated.” Bruen, 597 U.S. at 28.

To put a finer point on it, this new problem was a more fo-

cused manifestation of Under-21s’ less-than-fully-developed rea-

soning ability that served as the basis for the common-law re-

strictions during the Founding Era. And it demanded more focused

solutions—laws that specifically addressed the problem of Under-

21 gun violence. In other words, a narrower “why” required a

more targeted “how.”

So states across the country responded to this hurricane of

violence by enacting statutory restrictions on Under-21s’ purchases

of certain arms to restore the Founding Era status quo. And

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21-12314 ROSENBAUM, J., Concurring 11

(second,) those statutory restrictions stood the test of time for

more than 150 years.

This Part explains why we can rely on those nineteenth-cen-

tury laws in our analysis, and it shows that they are “relevantly sim-

ilar” to Florida’s law. Section A traces the societal and technologi-

cal roots of the emerging nineteenth-century problem of lethal gun

violence perpetrated by Under-21s. Section B recounts the states’

response to this new problem and explains that the states’ laws

have withstood the test of time for more than 150 years. And Sec-

tion C shows that Florida’s law is “relevantly similar” to these nine-

teenth-century precursors, so it, too, survives Second Amendment

scrutiny.

A. Dramatic technological and sociological changes created a new

problem of lethal firearm violence perpetrated by Under-21s in

the nineteenth century.

At the Founding, firearms seldom contributed to homicides.

To the contrary, “interpersonal violence among colonists and early

Americans rarely resulted in death.” Bianchi, 111 F.4th at 464 (citing

Randolph Roth, Why Guns Are and Aren’t the Problem, in A RIGHT TO

BEAR ARMS? THE CONTESTED ROLE OF HISTORY IN CONTEMPORARY

DEBATES ON THE SECOND AMENDMENT 116 ( Jennifer Tucker et al.

eds., 2019)).

Firearms were simply impractical for the task. Americans

owned muskets and fowling pieces, which were prone to misfiring,

needed to be reloaded after each shot, and required substantial ac-

umen and experience to effectively employ in combat. Roth, Why

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12 ROSENBAUM, J., Concurring 21-12314

Guns Are and Aren’t the Problem, supra, at 116–17; Joseph Blocher &

Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudica-

tion, 133 YALE L.J. 99, 153 (2023); see also Bianchi, 111 F.4th at 464.

Founding Americans also couldn’t store their firearms pre-loaded

because the gunpowder of the time absorbed moisture, which cor-

roded the gun’s metal and firing mechanisms. Roth, Why Guns Are

and Aren’t the Problem, supra, at 117; see Blocher & Rubin, supra, at

153 (“Guns thus generally were not kept or carried loaded in

1791 . . . .”); see also Bianchi, 111 F.4th at 464.

So Americans didn’t carry guns that they could readily use

in a fight. Bianchi, 111 F.4th at 464; see Tennessee v. Garner, 471 U.S.

1, 14 (1985) (“[C]ommon-law rule[s] developed at a time when

weapons were rudimentary. Deadly force could be inflicted almost

solely in a hand-to-hand struggle . . . .”). In fact, “[w]ell into the

1800s, even after pistols became more common, some still consid-

ered knives to be more dangerous.” Blocher & Ruben, supra, at

154; see Cockrum v. State, 24 Tex. 394, 402 (1859) (“The gun or pistol

may miss its aim, and when discharged, its dangerous character is

lost, or diminished at least. . . . The bowie-knife differs from these

in its device and design; it is the instrument of almost certain

death.”).

Not only were guns impractical as impromptu combat

weapons during the Founding Era, but Under-21s couldn’t buy fire-

arms, anyway. As the Majority Opinion explains, “the limitations

on” Under-21s’ “legal rights . . . were so pervasive” that they created

a practical bar on Under-21s’ ability to buy guns. Maj. Op. at 29.

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21-12314 ROSENBAUM, J., Concurring 13

Under-21s had no cash because most worked for their parents, and

for those who didn’t, any wages they might have earned belonged

to their parents. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND *453 (William Carey Jones ed., 1915). And

Under-21s also couldn’t buy firearms because they couldn’t con-

tract or use credit to purchase goods. See Maj. Op. at 16–18. In-

deed, sellers viewed Under-21s as too high-risk to sell to. See id.

Plus, even if Under-21s could somehow get their hands on

firearms, their parents could simply dispossess their children of

them. After all, at the Founding, parents enjoyed “total parental

control over children’s lives.” Brown v. Ent. Merchs. Ass’n, 564 U.S.

786, 830 (2011) (Thomas, J., dissenting). Parents could even excuse

their children from both militia and military service. See 25 ANNALS

OF CONG. 172 (1812) (Joseph Gales ed., 1834) (remarks of Rep. Jo-

siah Quincy III) (“The obligation to serve in the militia, is always

subject to the paramount duty to the master and the parent.”);

Frances M. Clarke & Rebecca Jo Plant, No Minor Matter: Underage

Soldiers, Parents, and the Nationalization of Habeas Corpus in Civil War

America, 35 L. & HIST. REV. 881, 892–95 (2017) (explaining parents’

widespread use of the writ of habeas corpus to recall their children

from military service was “rooted in common law traditions that

imbued parents with substantial authority over their children until

they reached the age of majority”).

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14 ROSENBAUM, J., Concurring 21-12314

In short, the common-law “practically prohibit[ed],” 2 Reese

v. BAFTE, 127 F.4th 583, 597 (5th Cir. 2025), Under-21s from

2 The Dissents, and our colleagues from the Fifth Circuit, first err here. As the

Dissents put it, “there is no evidence that legal barriers . . . were the primary

impediment to eighteen-year-olds arming themselves.” Brasher Diss. Op. at

23; see also Branch Diss. Op. at 3 n.2, 7 (suggesting “minors did buy goods on

credit, including firearms”). Our colleagues in the Fifth Circuit also suggest

they aren’t aware of Founding Era laws that “curtail[ed]” or “practically pro-

hibit[ed]” Under-21s from purchasing firearms. See Reese, 127 F.4th at 597. But

unlike here, the parties before our sister circuit did not present the court with

evidence of the common law’s “practical prohibit[ions],” see id., on Under-21s’

purchases of firearms. So the Fifth Circuit was apparently unaware of the ev-

idence on that point. The Dissents, in contrast, reach their erroneous conclu-

sion by ignoring the collection of common-law restrictions that worked to-

gether to, as a practical matter, prevent Under-21s from purchasing or bearing

arms without the permission of their parents or some other guardian in loco

parentis, like a militia officer or college administrator. Instead, they pluck one

legal rule—the voidability of Under-21s’ contractual obligations—from the

network of the common-law regime, considering it essentially in isolation.

Compare Brasher Diss. Op. at 16–21 (discussing only contracting capacity), and

Branch Diss. Op. at 3–6 (suggesting the majority relies on “contract-law doc-

trine” and “inferred economic effects” resulting from “contract-law doctrine”),

with Maj. Op. at 15–18 (discussing common-law parental rights and contrac-

tual rules that, in practical effect, meant Under-21s “generally could not pur-

chase firearms”). But the Majority Opinion and this concurrence are chock

full of evidence that Under-21s could not purchase firearms at the Founding

and that the Founding generation accounted for that fact in its legislation. See,

e.g., Maj. Op. at 18–22 (recounting legislative debates about laws requiring par-

ents to procure weapons for militia-aged children because the common-law

regime prevented Under-21s from purchasing firearms themselves); infra Part

I.A (explaining states enacted statutory restrictions on Under-21s’ access to

firearms to fill gaps in the eroding common-law regulatory regime). So on the

Dissents’ and the Fifth Circuit’s own standard, the Founding Era history sup-

ports Florida’s law.

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21-12314 ROSENBAUM, J., Concurring 15

purchasing firearms, so Under-21s didn’t pose a public-safety risk at

the Founding. But in the nineteenth century, societal develop-

ments and technological advancements upset that status quo: Gun

technology and manufacturing improved drastically, the United

States urbanized and industrialized, and we underwent the Civil

War. Because of these circumstances, Under-21s gained the per-

sonal and economic freedom to buy the new, widely available, and

lethal weapons.

To start with technology, by the 1810s, multiple inventors

had begun developing “percussion caps”—small, sealed caps (usu-

ally made of copper) filled with fulminate, a detonating chemical.

Brian DeLay, The Myth of Continuity in American Gun Culture, 113

CALIF. L. REV. (forthcoming 2025) (manuscript at 66). So firearm

owners no longer had to fill a gun’s pan with priming powder be-

cause gunsmiths could create an ignition system that would strike

the precision cap and light the fulminate within, igniting the gun-

powder that would discharge the bullet. Id. at 66–67; see also Bian-

chi, 111 F.4th at 465.

As a result, more effective pistols appeared in commerce.

DeLay, supra, at 67. By the 1830s, repeating pistols entered the mar-

ket, spearheaded by Samuel Colt’s and Ethan Allen’s designs. Id. at

68; see also Bianchi, 111 F.4th at 465. And by 1866, gunsmiths devel-

oped the modern centerfire metallic cartridge. David B. Kopel &

Joseph G.S. Greenlee, The History of Bans on Types of Arms Before

1900, 50 J. Legis. 223, 267 (2024). These bullets were more stable

and reliable than their predecessors. And they benefitted from

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16 ROSENBAUM, J., Concurring 21-12314

more improvements in 1884, when a new type of gunpowder ena-

bled firearms to shoot “further and with a flatter trajectory than

ever before.” Id.

At the same time, the United States rapidly industrialized

and urbanized. In the period immediately after the Revolution, the

United States was an agrarian society; “urban areas simply did not

exist in 1791 as we understand them today.” Blocher & Ruben, su-

pra, at 154.

The whole country consisted of only four million Ameri-

cans, and New York, our largest city at that time, had just 33,000

people. Id. Americans were mostly “isolated farmers” who “pro-

duced just enough food, livestock, and clothing for their own fam-

ily’s needs.” GEORGE B. TINDALL & DAVID E. SHI, AMERICA: A

NARRATIVE HISTORY 353 (10th ed. 2016). Families typically lived to-

gether on a farm, with children providing their parents much-

needed labor throughout their youth. Steven Ruggles, Multigener-

ational Families in Nineteenth-Century America, 18 CONTINUITY &

CHANGE 139, 160–62 (2003).

The War of 1812 spurred the beginning of dramatic

changes. It forced the United States to become more self-reliant

and to enlarge its manufacturing capabilities. TINDALL & SHI, supra,

at 341. So the country began to shift from an “agricultural repub-

lic” to a “commercial” and “industrial” nation. Id. at 341–42. New

jobs in mills, factories, stores, and banks attracted Americans to cit-

ies, and they left their farms. Id. at 352. In the 1830s and 1840s,

northern states rapidly urbanized. Jeffrey G. Williamson,

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Antebellum Urbanization in the American Northeast, 25 J. ECON. HIST.

592, 598–99, 602 (1965). In fact, “by 1860 most of the cities in the

Northeast and many in the Midwest fully qualified as industrial-ur-

ban complexes,” id. at 604—a substantial shift in American de-

mographics from the Founding and Antebellum periods.

To put the overall change in perspective, only about five per-

cent of the United States’s population lived in cities in 1790. David

R. Goldfield, The Stages of American Urbanization, 5 OAH MAG.

HIST. 25, 27 (1990). But for each of the decades between 1820 and

1870, our nation’s urban population grew at three times the rate of

our national population. Id. So by 1870, more than a quarter of

the American population lived in cities. Id. As a result, by halfway

through the 1800s, a “market-based economy” had replaced the

farm economy, and Americans had access to cash income, which

they could use to buy goods. TINDALL & SHI, supra, at 352–53 (em-

phasis omitted).

Firearms were among those goods. PATRICK J. CHARLES,

ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL

MILITIAS TO CONCEALED CARRY 141 (2019). Shops started stockpil-

ing and selling arms. Id. at 404 n.211. And “Americans scrambled

to buy them.” Roth, WHY GUNS ARE AND AREN’T THE PROBLEM,

supra, at 121.

Against a background of industrialization, huge population

increases, and a race to urbanize, “the rapid proliferation of mass-

produced single-shot and repeating pistols unsurprisingly led to in-

creases in armed crime.” DeLay, supra, at 68. And by the 1850s,

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18 ROSENBAUM, J., Concurring 21-12314

“gun violence” became “a significant societal problem for the first

time in American history.” Megan Walsh & Saul Cornell, Age Re-

strictions and the Right to Keep and Bear Arms, 1791–1868, 108 MINN.

L. REV. 3049, 3088 (2024); see Bianchi, 111 F.4th at 465 (first citing

RANDOLPH ROTH, AMERICAN HOMICIDE SUPPLEMENTAL VOLUME:

WEAPONS FIGURES Figures 25, 29, 34, 38 (2009); and then citing

Roth, Why Guns Are and Aren’t the Problem, supra, at 122).

Homicide statistics show when this problem arose. At the

Founding and into the nineteenth century, homicide rates fell as

Americans understood “the long-term consequences of the Revo-

lution.” RANDOLPH ROTH, AMERICAN HOMICIDE 180 (2009). By the

1820s, homicide rates in the North hit historic lows—the lowest

rates in our history. Id. So too in the mountain South. Id. at 180–

81. And in the Midwest, the homicide rates bottomed out by the

1830s. Id. at 180.

But as the nineteenth century progressed through the Ante-

bellum period and into Reconstruction, interpersonal violence

surged. The wave started in the South, before sprawling north-

ward, eastward, and westward. Bianchi, 111 F.4th at 465 (citing

ROTH, AMERICAN HOMICIDE, supra, at 180, 199–201, 299–302, 337).

And for the first time, Under-21s began to regularly perpe-

trate gun violence, too. Industrialization and “the loss of fathers

and older brothers” in the Civil War resulted in less family “con-

trol” over Under-21s. Loren Walker, Juvenile Violence, 1861-1865

(Civil War Era), in ENCYCLOPEDIA OF JUVENILE VIOLENCE 148, 148

(Laura L. Finley ed., 2007). And because, during the industrial

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21-12314 ROSENBAUM, J., Concurring 19

revolution, children were more economically valuable to their fam-

ilies by laboring in mills and factories, Under-21s’ families often re-

moved them from farm life and took them to cities to work. Wil-

liam S. Bailey, Flawed Justice: Limitation of Parental Remedies for the

Loss of Consortium of Adult Children, 27 SEATTLE U. L. REV. 941, 946

(2004).

In turn, “[o]ver the course of the early nineteenth century,”

courts “gradually abandoned th[e] set of legal rules” that “pre-

vented minors from making contracts” or “work[ing] for wages.”

James D. Schmidt, “Restless Movements Characteristic of Childhood”:

The Legal Construction of Child Labor in Nineteenth-Century Massachu-

setts, 23 L. & HIST. REV. 315, 317–18 (2005) (identifying three peri-

ods of legal developments in Massachusetts: 1830s, 1840s, and

1850s–1910s). Industrialization, mass production of guns, and the

erosion of the common-law regime that effectively banned Under-

21s from buying firearms meant that Under-21s could now pur-

chase cheap, widely available guns.

Urbanization also exposed many Under-21s to crime and

poverty. New York City, for instance, “saw an enormous increase

in the number of juvenile gangsters.” HERBERT ASBURY, THE

GANGS OF NEW YORK: AN INFORMAL HISTORY OF THE UNDERWORLD

238 (Capricorn Books 1970) (1928). Overall, juvenile crime ex-

ploded, and the number of juvenile reformatories increased from

one in 1825 to forty-five by 1885. Walker, supra, at 148.

Americans noticed this problem in real time. Citizens com-

plained “that it was ‘common’ practice among the more violently

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20 ROSENBAUM, J., Concurring 21-12314

inclined to ‘arm themselves with Pistols, dirks knives sticks &

spears under the specious pretence of protecting themselves,’

which resulted in the ‘stabbing shooting & murdering so many of

our citizens.’” Bianchi, 111 F.4th at 466 (quoting ROTH, AMERICAN

HOMICIDE, supra, at 218–19). And they thought Under-21s were

among the “more violently inclined” who should not possess these

new, lethal firearms.

Editorials and news reports decrying Under-21s’ access to

firearms littered publications in the post-Civil War United States.

See Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1319 & nn.1–5, 1329–30

(11th Cir.) (collecting newspapers and editorials), reh’g en banc

granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023); cf. Heller, 554

U.S. at 615 (relying on “an editorial” to conclude that a “view” was

“widely held”). “[B]oth lawmakers and the public supported” “laws

restricting the sale of dangerous weapons to minors.” CHARLES,

supra, at 156; see id. at 404–05 (collecting legislative history, news-

papers, and other primary materials). They thought these re-

strictions would slow and prevent Under-21s from inflicting fire-

arm-related casualties. Id. at 156.

Because of this perfect storm of dramatic societal and tech-

nological changes, between the middle and end of the nineteenth

century, Americans faced a public-safety crisis “beyond [anything]

the Founders specifically anticipated.” Bruen, 597 U.S. at 28. And

they responded with statutes restricting the sale of firearms to Un-

der-21s in jurisdictions where more than half the United States pop-

ulation lived. Maj. Op. at 26.

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B. Statutory prohibitions on the sale of firearms to Under-21s

have survived all constitutional challenges from Reconstruction

to this decade.

Those criminal, statutory prohibitions on the sale of fire-

arms to Under-21s survived, to my knowledge, any constitutional

scrutiny for the first 166 years after Alabama enacted the first such

state-wide statute in 1855. See Maj. Op. at 23–27 (collecting stat-

utes); Hirschfeld v. BAFTE, 5 F.4th 407, 438 & n.51, 453 (4th Cir.)

(first-ever appellate opinion declaring unconstitutional a restriction

on the sale of certain firearms to Under-21s), vacated as moot, 14

F.4th 322 (4th Cir. 2021). That “longstanding” practice is highly

“probative” of the Second Amendment’s meaning and its scope.

Rahimi, 602 U.S. at 724 (Kavanaugh, J., concurring).

Take the first three states to enact bans on Under-21s’ pur-

chase of certain firearms: Alabama, Tennessee, and Kentucky.

1855–56 Ala. Laws 17; Tenn. Code § 4864 (1858), reprinted in THE

CODE OF TENNESSEE ENACTED BY THE GENERAL ASSEMBLY OF 1857–

’8 871 (Nashville, E. G. Eastman & Co. 1858); 1860 Ky. Acts 245; see

also Saltonstall v. Riley, 28 Ala. 164, 172 (1856) (describing a “minor

under the age of twenty-one years”); Warwick v. Cooper, 37 Tenn. (5

Sneed) 659, 660–61 (1858) (referring to 21 as the age of majority);

Newland v. Gentry, 57 Ky. (18 B. Mon.) 666, 671 (1857) (same). These

three states made it illegal to “sell,” “give,” or “loan” certain fire-

arms—including handguns, the “quintessential self-defense

weapon,” Heller, 554 U.S. at 629—to Under-21s even before the Civil

War and Reconstruction. They did so because the violence that

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22 ROSENBAUM, J., Concurring 21-12314

advancements in firearm lethality wrought hit the South first in the

Antebellum period. See ROTH, AMERICAN HOMICIDE, supra, at 180,

199–202, 219.

All three statutes either went unchallenged or survived con-

stitutional scrutiny. And that’s so even though each state court in-

terpreted its state constitution’s right to keep and bear arms in lock-

step with what the Supreme Court has said is the original meaning

of the Second Amendment. See Heller, 554 U.S. at 602–03, 608–09,

612–13 (approving of the rights enshrined in the constitutions of

Alabama, Tennessee, and Kentucky).

Alabama’s Constitution, for example, “adopted” a “Second

Amendment analogue” that “used the . . . individualistic phrasing

that each citizen has the ‘right to bear arms in defence of himself

and the State.’” Heller, 554 U.S. at 602 (quoting ALA. CONST. of

1819, art. I, § 23). Its supreme court then clarified that any “statute

which, under the pretence of regulating, amounts to a destruction

of the right, or which requires arms to be so borne as to render

them wholly useless for the purpose of defence, would be clearly

unconstitutional.” State v. Reid, 1 Ala. 612, 616–17 (1840).

Still, against that backdrop, Alabama made it illegal to “sell

or give or lend, to any male minor, a[n] . . . air gun or pistol.” 1855

Ala. Laws 17; see Saltonstall, 28 Ala. at 172 (describing “a minor un-

der the age of twenty-one years”). And no one successfully chal-

lenged the law. In fact, the Alabama Supreme Court upheld a con-

viction under it. Coleman v. State, 32 Ala. 581, 582–83 (1858).

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21-12314 ROSENBAUM, J., Concurring 23

The same thing happened in Tennessee. The Tennessee Su-

preme Court interpreted the State’s Second Amendment analogue

to secure a right “to be exercised and enjoyed by the citizen as such,

and not by him as a soldier, or in defense solely of his political

rights.” Heller, 554 U.S. at 608 (quoting Andrews v. State, 50 Tenn.

165, 183–84 (1871)); see id. at 613–14 (“[T]he Tennessee Supreme

Court had treated the state constitutional provision as conferring a

right ‘to all the free citizens of the State to keep and bear arms for

their defence.’” (quoting Simpson v. State, 13 Tenn. 356, 360 (1833))).

As the Tennessee Supreme Court put it, “every man has a right to

own and keep” weapons such as “pocket pistols, or revolvers” for

defense. Page v. State, 50 Tenn. 198, 198 (1871).

Yet despite Page’s recognition of “every man[’s] . . . right to

own and keep” “pocket pistols, or revolvers,” id., the state prohib-

ited selling, loaning, giving, or delivering “to any minor a pistol . . .

or like dangerous weapon, except a gun for hunting or weapon for

defence in traveling,” Tenn. Code § 4864 (1858), supra; see Warwick,

37 Tenn. (5 Sneed) at 660–61 (1858) (referring to 21 as the age of

majority). And when a challenge to that law made it to the Ten-

nessee Supreme Court, the tribunal rejected the challenge, even cit-

ing Page v. State in the process. State v. Callicutt, 69 Tenn. 714, 716–

17 (1878). The court concluded “the acts to prevent the sale, gift,

or loan of a pistol or other like dangerous weapon to a minor” are

“not only constitutional as tending to prevent crime but wise and

salutary in all its provisions.” Id.

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24 ROSENBAUM, J., Concurring 21-12314

As for Kentucky, its state constitution also “referred to the

right of the people to ‘bear arms in defence of themselves and the

State.’” Heller, 554 U.S. at 584–85 & n.8, 602 (citing KY. CONST. of

1792, art. XII, § 23). The Kentucky Supreme Court interpreted the

provision generously, suggesting almost any regulation of the right

to keep and bear arms would violate the State’s constitution:

“[W]hatever restrains the full and complete exercise of that right,

though not an entire destruction of it, is forbidden by the explicit

language of the constitution. . . . [A]ll which diminish or impair it

as it existed when the constitution was formed, are void.” Bliss v.

Commonwealth, 12 Ky. 90, 91–92, 93 (1822) (declaring unconstitu-

tional a concealed-carry restriction).

That expansive interpretation of the right to keep and bear

arms was an outlier in that it over-secured the right as the Second

Amendment embodied it. Other states recognized that fact. See

Commonwealth v. Murphy, 166 Mass. 171, 172–73 (1896) (explaining

Bliss “has not been generally approved”). Yet it appears that no one

challenged Kentucky’s law making it unlawful for anyone, “other

than the guardian,” to “sell, give, or loan any pistol . . . slung-shot,

cold, cane-gun, or other deadly weapon . . . to any minor.” 1859

Ky. Acts 245, § 32; see Newland, 57 Ky. (18 B. Mon.) at 671 (1857)

(referring to twenty-one as the age of majority). And in one in-

stance, Kentucky’s highest appellate court dismissed for want of

jurisdiction an appeal from a prison sentence based on a conviction

under the statute. Tankersly v. Commonwealth, 9 S.W. 702, 702–03

(Ky. 1888).

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21-12314 ROSENBAUM, J., Concurring 25

Even after Americans ratified the Fourteenth Amendment

to secure from state interference the right to keep and bear arms,

challenges to restrictions on Under-21s’ ability to buy firearms

found no solid footing. To be sure, the Supreme Court may have

limited federal enforcement of the right by declaring that the Sec-

ond Amendment applied only against the federal government. See

United States v. Cruikshank, 92 U.S. 542, 553 (1876); Presser v. Illinois,

116 U.S. 252, 265 (1886); Miller v. Texas, 153 U.S. 535, 538 (1894). But

it did so precisely because, under its interpretation of the Privileges

or Immunities Clause, the right the Second Amendment secured

was a pre-existing one, not “in any manner dependent upon” the

Constitution “for its existence.” Cruikshank, 92 U.S. at 553. It was

a right that “[m]ost if not all of the States have adopted,” United

States v. Miller, 307 U.S. 174, 182 (1939), and protected through state

constitutions and courts, see Heller, 554 U.S. at 585 & nn.8–9, 600–

05, 610–14; see also, e.g., Bliss, 12 Ky. at 91–92; Reid, 1 Ala. at 616;

Nunn v. State, 1 Ga. 243, 251 (1846); Page, 50 Tenn. at 198; People v.

Zerillo, 219 Mich. 635, 642 (1922).

Yet despite the right to bear arms’s force and the states’ pro-

tection of it, jurisdictions around the country—representing over

half the population—followed the leads of Alabama, Tennessee,

and Kentucky and enacted their own, similar restrictions. See Maj.

Op. at 23–27 (collecting examples). Simply put, state courts across

the country that had applied their states’ Second Amendment ana-

logue in lockstep with Heller’s understanding of its pre-existing

right found no constitutional concern when their governments

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26 ROSENBAUM, J., Concurring 21-12314

enacted and enforced statutory prohibitions on the sale of firearms

to Under-21s.

So it’s unsurprising that Thomas Cooley’s “massively popu-

lar . . . Treatise on Constitutional Limitations,” Heller, 554 U.S. at

616, easily confirmed those laws did not offend the right to keep

and bear arms. See THOMAS M. COOLEY, TREATISE ON

CONSTITUTIONAL LIMITATIONS 739 & n.4 (5th ed. 1883) (“[T]he

State may prohibit the sale of arms to minors” as “a just restrain of

an injurious use of property, which the legislature have authority

to impose.” (citation omitted)). And his treatise noted no conflict

between Callicut, which upheld Tennessee’s law barring the sale of

pistols to Under-21s, and other cases, such as Bliss, which held un-

constitutional on Second Amendment grounds other gun-control

laws. See id. at 428 & nn.3–4, 739 & n.4. In short, it’s clear that the

ability to limit Under-21s’ access to firearms inhered in this Nation’s

tradition of firearm regulation.

No court concluded otherwise in roughly the century-and-

a-half after Reconstruction. To the contrary, jurisdictions across

the United States continued the tradition of limiting firearm sales

to Under-21s. And courts routinely upheld and enforced criminal

prohibitions. See, e.g., Biffer v. City of Chicago, 278 Ill. 562, 565–66,

570–71 (1917) (monetary penalties); State v. Quail, 28 Del. 310, 310

(1914) (monetary penalties and imprisonment); United States v. Rene

E., 583 F.3d 8, 20 (1st Cir. 2009) (same); Nat’l Rifle Ass’n of Am. v.

BAFTE, 700 F.3d 185, 211 (5th Cir. 2012) (same), abrogated by Diaz,

116 F.4th at 465; see also State v. Allen, 94 Ind. 441, 443 (1884)

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21-12314 ROSENBAUM, J., Concurring 27

(monetary penalties); Tankersly, 9 S.W. at 702–03 (monetary penal-

ties and imprisonment); cf. Glenn v. State, 72 S.E. 927, 928–29 (Ga.

App. 1911) (upholding conviction under statute banning plaintiff

who was under 18 from possessing firearms).

Beyond criminal punishments, courts also allowed victims

of firearm violence to pursue negligence actions against merchants

who sold firearms to Under-21s. See, e.g., Hoosier v. Lander, 17 Cal.

Rptr. 2d 518, 522 (Ct. App. 1993) (statute applied to and plaintiff was

under 21); Coker v. Wal-Mart Stores, Inc., 642 So. 2d 774, 778 (Fla.

Dist. Ct. App. 1994) (same); cf. Poland v. Earhart, 30 N.W. 637, 637–

38 (Iowa 1886) (statute applied to Under-21s; plaintiff was under

18); Bernard v. Smith, 90 A. 657, 658–59 (R.I. 1914) (statute applied

to and plaintiff was under 15); Spires v. Goldberg, 106 S.E. 585, 586–

88 (Ga. App. 1921) (statute applied to Under-21s; plaintiff was under

18); McMillen v. Steele, 275 Pa. 584, 586 (1923) (statute applied to and

plaintiff was under 16); Neff Lumber Co. v. First Nat. Bank, 122 Ohio

St. 302, 305, 307–09 (1930) (statute applied to and plaintiff was un-

der 17); Driesse v. Verblaauw, 153 A. 388, 388, 390 (N.J. Sup. Ct. 1931)

(statute applied to and plaintiff was under 16); Tamiami Gun Shop v.

Klein, 116 So. 2d 421, 422–24 (Fla. 1959) (ordinance applied to Un-

der-21s; plaintiff was under 18); Crown v. Raymond, 159 Ariz. 87, 90

(Ct. App. 1988) (statute applied to Under-21s; plaintiff was under

18).

These actions, of course, could not have occurred had states

interpreted their pre-existing right to keep and bear arms to protect

the sale of firearms to Under-21s. Cf. N.Y. Times Co. v. Sullivan, 376

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28 ROSENBAUM, J., Concurring 21-12314

U.S. 254, 277 (1964) (explaining the First Amendment limits the

bounds of state torts); Wampler v. Hiins, 93 Ohio St. 3d 111, 132

(2001) (concluding the Ohio Constitution limits state-law defama-

tion actions).

And well into the twentieth century, Congress passed the

Gun Control Act of 1968 (“1968 Act”). The new law “sought

broadly to keep firearms away from the persons Congress classified

as potentially irresponsible and dangerous.” Barrett v. United States,

423 U.S. 212, 218 (1976). Chief among its restrictions were those

on the “transfer[] [of ] handguns,” along with certain other fire-

arms, with some exceptions, “to any person under 21.” Printz v.

United States, 521 U.S. 898, 902 (1997) (citing 18 U.S.C. § 922(b)).

The legislative history explained the rationale. The Senate

Report highlighted, “In contributing to our ever-increasing crime

rates, juveniles account for some 49 percent of the arrests for seri-

ous crimes in the United States and minors account for 64 percent

of the total arrests in this category.” S. REP. NO. 90–1097, at 77

(1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2165. So the 1968

Act included restrictions on the sale of firearms to Under-21s as

part of its “attempt to take major steps to prevent firearm abuses.” 3

Busic v. United States, 446 U.S. 398, 404 n.9 (1980).

3 And tellingly, Congress imposed these limitations, even though, at the same

time, it “conducted extensive hearings on” “proposals to lower the voting age

to 18.” Oregon v. Mitchell, 400 U.S. 112, 278–79 & n.47 (1970) (Brennan, J., con-

curring in part and dissenting in part). Indeed, federal legislators considered

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21-12314 ROSENBAUM, J., Concurring 29

And the 1968 Act too survived without courts expressing

constitutional concern for more than the next five-and-a-half dec-

ades. See, e.g., Rene E., 583 F.3d at 20 (upholding the restriction as

to Under-21s); BAFTE, 700 F.3d at 211 (same); see also Heller, 554 U.S.

at 626–27 & n.26 (considering some of the Gun Control Act’s re-

strictions “on the possession of firearms” as “longstanding prohibi-

tions” that are “presumptively lawful regulatory measures”). Based

on my review of the history, until 2021, not one federal appellate

court or state court of final review held unconstitutional a limita-

tion on the sale of certain firearms to Under-21s. Cf. Hirschfeld, 5

proposals to lower the voting age as early as 1942. Id. at 278–79. And the next

year, Georgia lowered its minimum voting age, followed later by Kentucky,

Alaska, and Hawaii. Id. at 245 & n.28. As for the series of hearings leading to

the Voting Rights Act of 1970 and the Twenty-Sixth Amendment, those began

in 1968. See id. at 278–79. That Congress and the States ratified the Twenty-

Sixth Amendment around the same time that Congress enacted the Gun Con-

trol Act of 1968 defies any suggestion that Congress meant through the

Twenty-Sixth Amendment to make age-based restrictions on the sale of guns

to Under-21s unconstitutional. And most courts that have addressed whether

the Twenty-Sixth Amendment changed the age of majority have concluded it

didn’t. See, e.g., United States v. Duncan, 456 F.2d 1401, 1404–05 (9th Cir.) (hold-

ing the Twenty-Sixth Amendment did not make federal law setting the mini-

mum age for jury service at twenty-one unconstitutional), vacated on other

grounds, 409 U.S. 814 (1972); United States v. Guzman, 468 F.2d 1245, 1248 (2d

Cir. 1972) (same); United States v. Shaver, 506 F.2d 699, 701 (4th Cir. 1974) (re-

jecting the argument that Congress “impliedly . . . redefined the term ‘minor-

ity’” through the Twenty-Sixth Amendment). Plus, “[o]ur Constitution per-

mits States to draw lines on the basis of age when they have a rational basis

for doing so at a class-based level, even if it ‘is probably not true’ that those

reasons are valid in the majority of cases.” Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 86 (2000).

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30 ROSENBAUM, J., Concurring 21-12314

F.4th at 438 (before being vacated as moot, holding unconstitu-

tional the federal law limiting the sale of handguns and handgun

ammunition to Under-21s).

That consistent, longstanding, and uninterrupted tradition

of prohibiting the sale of firearms to Under-21s through criminal

statutes, beginning in 1855 with Alabama’s law and running

through at least 2021, provides evidence of the constitutionality of

laws like Florida’s that prohibit the sale of firearms to Under-21s.

Judge Brasher’s Dissent says it doubts this body of history—

what it calls a “slow trickle of . . . laws”—establishes an “enduring”

and “representative” regulatory tradition. Brasher Diss. Op. at 28

(quoting Bruen, 597 U.S. at 27, 30, 67). I disagree.

There is no reasonable dispute over whether the nineteenth-

century regulatory tradition is “enduring”; by any definition, it is.

Indeed, the Reconstruction Era laws have gone virtually unchal-

lenged since 1855, and they are rooted in the common law.

Similarly, it’s objectively wrong to suggest a regime that gov-

erned the majority of the nineteenth-century population and the

entire twentieth-century population is not “representative” of our

legal traditions. That’s not just “representative”; it’s overwhelm-

ing. After all, courts have concluded far lower proportions of the

population were “representative.” See, e.g., Antonyuk, 120 F.4th at

1022–23 (concluding a representative tradition existed where “15.3

percent of the Nation’s population,” comprising “37.7% of the ur-

ban population living” in the United States, prohibited firearms in

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21-12314 ROSENBAUM, J., Concurring 31

public parks). And the nineteenth-century regime bears no resem-

blance to the unrepresentative tradition that Bruen rejected. There,

only “about two-thirds of 1% of the population” adopted the prof-

fered analogues—quite literally, an exponential difference of tens

of millions of people from the pervasiveness of the nineteenth-

century regulatory regime. See Bruen, 597 U.S. at 67.

Our consistent, longstanding, and uninterrupted tradition

of prohibiting the sale of firearms to Under-21s through criminal

statutes, beginning in 1855 with Alabama’s law and running

through at least 2021, provides evidence of the constitutionality of

laws like Florida’s that prohibit the sale of firearms to Under-21s.

C. Florida’s law fits comfortably within this Nation’s tradition

of firearm regulations.

The historical evidence makes this an easy case. Florida’s

law is not an “outlier[] that our ancestors would never have ac-

cepted.” Bruen, 597 U.S. at 30 (citation omitted).

As the Majority Opinion explains, the common law’s imped-

iments to Under-21s’ ability to buy guns during the Founding Era

are “relevantly similar” to the Florida law’s statutory prohibition on

the sale of firearms to Under-21s. Starting with the “why,” our

Founders worried that Under-21s lacked sufficient reasoning and

decisionmaking ability to responsibly purchase and possess guns

without supervision. And Florida passed its law for the same rea-

son. Turning to the “how,” the Founding Era’s common law had

the practical effect of precluding Under-21s from purchasing

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32 ROSENBAUM, J., Concurring 21-12314

firearms. Instead, Under-21s were entirely reliant on their parents

to obtain guns. Florida’s law also makes it illegal for Under-21s to

buy guns, but parents can choose to provide their children with

them if they wish to do so.

Moving into the nineteenth century, “unprecedented socie-

tal concerns” and “dramatic technological changes” required our

Nation to address for the first time the new problem of Under-21s’

perpetration of lethal firearm violence. Id. at 27. The states re-

sponded to this new type of firearm violence by barring Under-21s

from purchasing pistols and other dangerous weapons. Again,

both the “how” and the “why” of these nineteenth-century state

laws are “relevantly similar” to those of Florida’s law.

Starting again with the “why,” both nineteenth-century leg-

islatures and Florida tried to curb a rise in deadly firearm violence

that Under-21s were inflicting. Our Founders had a general con-

cern about Under-21s’ underdeveloped decisionmaking abilities.

But the technological advancements and societal changes during

the Antebellum, Civil War, and Reconstruction periods allowed

any underdeveloped reasoning abilities of Under-21s our Founders

worried about to create a true public-safety crisis.

Florida’s law responds to the same crisis: advancements in

weaponry have enabled Under-21s to commit mass murder on a

greater scale than ever before. So turning to the “how,” both nine-

teenth-century legislatures and Florida enacted criminal, statutory

prohibitions on the sale of firearms to Under-21s. Yet unlike some

Under-21s in the Reconstruction Era, Floridians under the age of

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21-12314 ROSENBAUM, J., Concurring 33

21 may still possess firearms, receive them from parents, and use

them. In fact, Under-21s today may even own firearms, as long as

they obtain them legally. It’s therefore unsurprising that the Fifth

Circuit agrees that most of these nineteenth-century laws “appear

to be ‘relevantly similar’ to the [federal government’s] current

handgun purchase ban,” which, just like Florida’s law, “restrict[s]

firearm access by those under twenty-one-years-old to prevent mis-

use.” Reese, 127 F.4th at 599; see also id. (noting that these laws are

relevantly similar in the “‘how’ and ‘why’”).

To be sure, some differences exist among Florida’s law, the

laws of the nineteenth century, and the common law at the Found-

ing.4 But none of thos

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