Amicus Curiae Brief — National Rifle Association, Incorporated, Petitioner v. Mark Glass, Commissioner, Florida Department of Law Enforcement

Supreme Court briefJun 20, 2025

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No. 24-1185

IN THE

SUPREME COURT OF THE UNITED STATES

--------------------------------- ♦ --------------------------------NATIONAL RIFLE ASSOCIATION OF AMERICA,

INCORPORATED,

Petitioner,

MARK GLASS, Commissioner of the Florida

Department of Law Enforcement,

Respondent.

--------------------------------- ♦ --------------------------------On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

--------------------------------- ♦ --------------------------------BRIEF OF AMICUS CURIAE

THE SECOND AMENDMENT

FOUNDATION

IN SUPPORT OF PETITIONER

--------------------------------- ♦ --------------------------------Edward A. Paltzik, Esq.

Counsel of Record

Meredith R. Lloyd, Esq.

Taylor Dykema, PLLC

914 E. 25th Street

Houston, TX 77009

(516) 526-0341

edward@taylordykema.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... ii

INTEREST OF AMICUS CURIAE .........................1

SUMMARY OF ARGUMENT .................................1

ARGUMENT ...........................................................3

The Proper Framework For Assessing the

Age Ban ......................................................... 3

A. The Proper Standards .................................... 3

B. The Proper Timeframe for

Historical Support .......................................... 4

II. Because Firearms Were “Necessaries” in the

Founding Era, They Were Exempt From the

Voidability Rule ............................................ 6

A. The Voidability Rule and the

Necessaries Exception.................................... 6

B. Judicial and Legislative Authority

Recognized the Necessity of

Firearms ....................................................... 10

C. Unofficial Records Confirm that

Firearms Were Pervasive in

Founding Era American Culture................. 12

D. Later Acknowledgement of

Firearms as “Necessaries” ........................... 15

III. Founding Era Statutes Regulating the Use of

Firearms by Minors .................................... 16

CONCLUSION ...................................................... 18

TABLE OF AUTHORITIES

Page(s)

Cases

Bradley v. Pratt,

23 Vt. 378 (1851) .................................................... 15

Crocker v. Spencer,

2 D. Chip. 68 (1824) ............................................... 11

District of Columbia v. Heller,

554 U.S. 570 (2008).......................... 2, 3, 4, 5, 16, 17

Gamble v. United States,

139 S. Ct. 1960 (2019).......................................... 5, 6

Jackson v. Todd,

6 ibid. 257 ................................................................. 8

Keane v. Boycott,

2 H. Blacks. 511 ....................................................... 8

McDonald v. City of Chicago,

561 U.S. 742 (2010)............................................. 2, 3

New York State Rifle & Pistol Association,

Inc. v. Bruen,

597 U.S. 1 (2022)................................................... 1-6

O’Leary Estate,

42 A. 2d 624 (1945) .................................................. 7

iii

Oliver v. Houdlet,

13 Mass. Rep. 237 (1816)......................................... 8

Parman v. Lemmon,

224 P. 232 (1926) .................................................. 10

Parman v. Lemmon,

244 P. 227 (Kan. 1925) ......................................... 10

Pickering and Gunning,

1 Inst. 172. Palm. 528 ............................................ 12

Rainwater vs. Durham,

2 Nott & McCord, 524 .............................................. 6

Roberts v. Wiggin,

1 N. H. Rep. 73 ......................................................... 8

United States v. Blakeney,

44 Va. (3 Gratt.) 405 (1847)................................... 16

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990).......................................... 16, 17

Van Bramer v. Cooper,

2 Johns. Rep. 279 ..................................................... 8

Worth v. Jacobson,

108 F.4th 677 (8th Cir. 2024) .......................... 16, 18

Statutes

COLUMBIA, S.C., ORDINANCES No. 41

(1823) ...................................................................... 17

FLA. STAT. § 790.065 .......................................... 1-4, 18

N.Y.C., N.Y., ORDINANCES § VI (1763)..................... 17

1785 MASS. ACTS 510, 516 ........................................ 11

1723 VA. STAT. 121 ................................................... 11

195 DEL. LAWS 522 § 2 (1812) .................................. 17

170 ER 769 ................................................................ 12

Other Authorities

30 ARCHIVES OF MARYLAND

277 (William Hand Browne ed., 1910) (Act of

1715) ....................................................................... 11

7 FEDERAL AND STATE CONSTITUTIONS

COLONIAL CHARTERS, AND OTHER ORGANIC

LAWS OF THE STATES, TERRITORIES, AND

COLONIES NOW OR HERETOFORE FORMING THE

UNITED STATES OF AMERICA

3783 (Francis Newton Thorpe ed., 1909).............. 10

Anna L. Hawley, THE MEANING OF

ABSENCE: HOUSEHOLD INVENTORIES IN

SURRY COUNTY, VIRGINIA, 1690-1715, in

EARLY AMERICAN PROBATE INVENTORIES

(Peter Benes ed., 1987) .......................................... 11

William Blackstone, COMMENTARIES ON

THE LAWS OF ENGLAND: IN FOUR BOOKS,

3rd ed., (Chicago Callaghan and Co. ed.

1884) ......................................................................... 7

Clayton Isaac Miller, CONTRACTS OF

INFANTS

12 (Cornell Law School ed. 1892) ............................ 9

James Kent, COMMENTARIES ON

AMERICAN LAW

Lect. 31 (1826-30) .................................................... 8

James Lindgren et al., Counting Guns in

Early America,

43 WM. & MARY L. REV. 1777 (2002) ............... 13, 14

Juanda Lowder Daniel, Virtually Mature:

Examining the Policy of Minors’ Incapacity

to Contract Through the Cyberscope,

43 GONZ. L. REV. 239 (2008) .................................... 7

Henning, William Waller, THE NEW VIRGINIA

JUSTICE: COMPRISING THE OFFICE AND

AUTHORITY OF A JUSTICE OF THE PEACE, IN

THE COMMONWEALTH OF VIRGINIA

262 (1795) ............................................................... 14

Holly Brewer, BY BIRTH OR CONSENT:

CHILDREN, LAW, AND THE ANGLO-AMERICAN

REVOLUTION IN AUTHORITY

(1964) ..................................................................... 7,8

Mark W. Smith, Attention Originalists: The

Second Amendment was adopted in 1791,

not 1868,

HARV. J. L. & PUB. POL’Y PER CURIAM (Dec.

7, 2022). .................................................................... 5

P.S. Atiyah, THE RISE AND FALL OF FREEDOM

OF CONTRACT 183 (Oxford, 1979) ............................. 8

Richard A. Lord, 5 WILLISTON ON

CONTRACTS (4th ed. 2009) ................................... 6, 7

St-John Baker, THE INFANTS’ LAWYER

(2d. ed. 1712) ............................................................ 9

THE AMERICAN DIGEST: A COMPLETE DIGEST

OF ALL REPORTED AMERICAN CASES FROM

THE EARLIEST TIMES TO 1896,

(century ed., 1897-1904), 1136. ............................... 9

THE PUBLIC RECORDS OF THE COLONY OF

CONNECTICUT 537 (J. Hammond Trumbull

ed., 1850) ................................................................ 14

INTEREST OF AMICUS CURIAE1

The Second Amendment Foundation (“SAF”),

is a non-profit membership organization founded in

1974 with over 720,000 members and supporters in

every State of the Union, including Florida. Its

purposes include education, research, publishing, and

legal action focusing on the constitutional right to

keep and bear arms. Amicus Curiae has an intense

interest in this case because FLA. STAT. § 790.065 (“the

age ban”) prevents many law-abiding adult members

of SAF from exercising their fundamental

constitutional right to keep and bear arms in a

manner that does not comport with “the Second

Amendment’s text, as informed by history.” New York

State Rifle & Pistol Association, Inc. v. Bruen, 597

U.S. 1, 2 (2022).

SUMMARY OF ARGUMENT

The Eleventh Circuit relied on the voidability

rule as historical evidence in support of its holding

that a Florida Statute banning the sale of firearms to

adults younger than twenty-one (the “age ban”) was

constitutionally permissible. However, because

firearms were widely regarded as “necessaries” during

the Founding Era, and were therefore exempt, the

1 No counsel for any party authored the brief in whole or in part.

Only amicus curiae funded its preparation and submission. All

parties received timely notice of this submission.

voidability rule cannot provide support for a modern

firearm ban.

Review of “founding-era historical precedent,”

District of Columbia v. Heller, 554 U.S. 570, 631

(2008) reveals that the age ban lacks any “wellestablished and representative historical analogue”

from the Founding Era or prior. Bruen, 597 U.S. 1

(emphasis in original). To the extent any laws adopted

during or immediately leading up to the Founding

prevented purchase of firearms by individuals

younger than the age of majority, these laws only

allowed for a minor to rescind the contract if the

firearm was not a “necessary.”

This brief explores the contractual common law

during the Founding Era and explains why the

voidability rule is not analogous to the age ban. Since

firearms in general were basic necessities for early

American family life, the voidability rule did not

enjoin minors from entering into contracts for their

purchase. To the extent the voidability rule applied

to contracts involving firearms, it only limited the

minor’s liability for non-necessary goods that were

purchased on credit, assuming the minor was willing

to return the goods and rescinded the contract before

they reached the age of majority. Supra, § II(A). And

so, the voidability rule is not part of “this Nation’s

historical tradition of firearm regulation.” Bruen, 597

U.S. at 18. Accordingly, the age ban violates the

Second Amendment right of the people to keep and

bear arms as set forth in Heller, McDonald v. City of

Chicago, 561 U.S. 742 (2010), and Bruen.

ARGUMENT

The Proper Framework For Assessing the

Age Ban

The Proper Standards

“Heller . . . demands a test rooted in the Second

Amendment’s text, as informed by history.” Bruen,

597 U.S. at 2. Consistent with this demand, and

because “the Second Amendment extends, prima

facie, to all instruments that constitute bearable

arms,” Heller, 554 U.S. at 582,“the government must

affirmatively prove that its firearm regulation is part

of the historical tradition that delimits the outer

bounds of the right to keep and bear arms.” Bruen,

597 U.S. at 19. To carry its burden, the government

must point to “historical precedent . . . [that] evinces

a comparable tradition of regulation.” Id. at 2131-32

(internal quotation marks omitted).

The government need not identify a “historical

twin”; rather, a “well-established and representative

historical analogue” suffices. Bruen, 597 U.S. at 30

(emphasis in original). In Bruen, this Court identified

two metrics for comparison of analogues proffered by

the government against the challenged law: “how and

why the regulations burden a law-abiding citizen’s

right to armed self-defense.” Id. (citing McDonald, 561

U.S. at 767, and Heller, 544 U.S. at 599) (emphasis

added). “[W]hether modern and historical regulations

impose a comparable burden on the right of armed

self-defense and whether that burden is comparably

justified are central considerations when engaging in

an analogical inquiry.” Id. (internal quotation marks

and emphasis omitted). The key question is whether

the challenged law and proffered analogue are at least

“relevantly similar.” Bruen, 597 U.S. at 29.

Here, the relevant questions are how the age

ban burdens the right to armed self-defense, why it

burdens that right, and whether it is relevantly

similar to any historical analogue. The necessities

exception to the common law voidability doctrine,

coupled with historical information relating to

firearms possession during the Founding Era, is

instructive in answering these questions.

The Proper Timeframe for Historical

Support

Beyond identification of appropriate analogues,

it is also imperative that this Court look to the proper

historical period to ascertain what similar laws, or

historical analogues, were in existence that the

Government may rely upon to justify the age ban. The

Founding Era is the proper historical period for the

Bruen analysis. “Constitutional rights are enshrined

with the scope they were understood to have when the

people adopted them.” Bruen, 142. S. Ct. at 2136

(quoting Heller, 554 U.S. at 634-35) (emphasis added).

The Second Amendment was adopted in 1791. This

Court has explained that 1791 is the controlling time

for interpreting the Second Amendment. See, e.g.,

Heller, 554 U.S. at 625 (concluding with “our adoption

of the original understanding of the Second

Amendment”); Gamble v. United States, 139 S. Ct.

1960, 1975-76 (2019) (explaining Heller sought to

determine “the public understanding in 1791 of the

right codified by the Second Amendment”); Bruen, 597

U.S. at 28 (Second Amendment’s “meaning is fixed

according to the understandings of those who ratified

it”).

The government may prefer that this Court

look to the ratification of the Fourteenth Amendment

in 1868, or some or all of the rest of the 19th century,

as the controlling time for interpretations of the

relevant history. But that is improper because “when

it comes to interpreting the Constitution, not all

history is created equal.” Bruen, 597 U.S. at 4

(emphasis added). Therefore, this Court has

“generally assumed that the scope of the protection

applicable to the Federal Government and States is

pegged to the public understanding of the right when

the Bill of Rights was adopted in 1791.”2 Id.

In Bruen, this Court acknowledged “an ongoing scholarly

debate on whether courts should primarily rely on the prevailing

understanding of an individual right when the Fourteenth

Amendment was ratified in 1868” or when the Second

Amendment was adopted in 1791. 597 U.S. at 38. But the Court,

importantly, did not question its own precedent that adopted the

“original understanding of the Second Amendment, Heller, 554

U.S.at 625, and “the public understanding in 1791 of the right

codified by the Second Amendment,” Gamble, 139 S. Ct. at 1975;

see also Mark W. Smith, Attention Originalists: The Second

Amendment was adopted in 1791, not 1868, HARV. J. L. & PUB.

POL’Y PER CURIAM (Dec. 7, 2022).

Here, since the “necessaries” exception to the

voidability rule was extensively applied by Courts

during the Founding Era, they fall within the

appropriate time period under the Bruen analysis.

II.

Because Firearms Were “Necessaries” in the

Founding Era, They Were Exempt From the

Voidability Rule

The Voidability Rule and the

Necessaries Exception

The age-old contractual voidability rule allows

a child to void certain contracts made before they

reach the age of majority. See 5 RICHARD A. LORD,

WILLISTON ON CONTRACTS § 9:1, at 2 (4th ed. 2009)

(“Formation of contracts requires that the contracting

parties have the capacity to do so, and this capacity is

presumed “unless he falls within one of the classes of

persons who are held by the law to have no capacity,

or only a limited capacity to contract. Infants comprise

one of these classes.”). Critically, minors were not

permitted to disaffirm contracts for necessities. Id.,

see also Rainwater vs. Durham, 2 Nott & McCord,

524. (“An infant, (says Judge Brevard, in the case of

Bouchell vs. Clary, at Columbia, 1815) may bind

himself, or contract for necessary meat, drink,

apparel, physic, schooling, and the like; suitable to the

circumstances and situation of the infant in life, and

the society in which he moves. The articles in such

case, ought to appear to be necessary for him, and

plainly and clearly so, and to be furnished at

reasonable prices.”)(emphasis in original); O’Leary

Estate, 256, 42 A. 2d 624 (1945) (“Of course, it is

hornbook law that, generally, save as to necessaries,

the contract of a minor is voidable.”); William

Blackstone, Commentaries on the Laws of England: in

Four Books, 3rd ed., (Chicago Callaghan and Co. ed.

1884

767

(available

https://repository.law.umich.edu/books/97) (“an infant

can owe nothing but for necessaries”).

Scholars agree that “society wants to allow

minors to obtain items necessary for their survival by

assuring merchants that minors’ contracts for

necessities will be binding.” Juanda Lowder Daniel,

Virtually Mature: Examining the Policy of Minors’

Incapacity to Contract Through the Cyberscope, 43

GONZ. L. REV. 239, 255 (2008) (citing E. ALLAN

FARNSWORTH, CONTRACTS § 4.5 (4th ed. 2004)). The

determination of “necessary” status is based on the

need of the infant at the time of contracting, rather

than on the nature of the item contracted for. RICHARD

A. LORD, 5 WILLISTON ON CONTRACTS § 9:21 (4th ed.

2010) . The ability to purchase by an agreement to pay

in the future was binding so long as one “needed” the

item that was purchased: “[i]f an infant at the years

of discretion make a bond for his necessary meat and

drink, or for his necessary apparel, or his schooling,

he shall not avoid the same.” Usually only the child

could avoid the promise, and only within a narrow

window. Some scholars recognized an exception to the

voidability rule “when exchange was immediate” and

also when the contract was “for necessities.” Holly

Brewer, BY BIRTH OR CONSENT: CHILDREN, LAW, AND

THE ANGLO-AMERICAN REVOLUTION IN AUTHORITY 241

(1964).

Founding Era legal commentators observed

that “no one but the infant himself, or his legal

representatives, can avoid his voidable deed or

contract; for while living, he ought to be the exclusive

judge of the propriety of the exercise of a personal

privilege intended for his benefit; and when dead,

those alone should interfere who legally represent

him.” James Kent, COMMENTARIES ON AMERICAN LAW

Lect. 31 (1826-30) (citing Keane v. Boycott, 2 H.

Blacks. 511;Van Bramer v. Cooper, 2 Johns. Rep. 279;

Jackson v. Todd 6 ibid. 257; Oliver v. Houdlet 13

Mass. Rep. 237; Roberts v. Wiggin 1 N.H. Rep. 73.)

(emphasis added).

As the vagueness of the term implies,

“necessities” could have meant both everything and

nothing, depending on the judge, jury, and

circumstances of the contract. P.S. Atiyah, THE RISE

AND FALL OF FREEDOM OF CONTRACT 183 (Oxford,

1979) (Describing the “reasonably free hand” that

courts had to determine whether goods were

necessaries.). But, over time, the term began to

include less. Blackstone and Coke defined necessaries

to include “meat, drink, apparel, necessary physic,

and other such necessaries, and likewise… good

Teaching and Instruction.” THE AMERICAN DIGEST: A

COMPLETE DIGEST OF ALL REPORTED AMERICAN CASES

FROM THE EARLIEST TIMES TO 1896, (century ed. 18971904), 1136. In a widely reported 1793 English

decision. Chief Justice Lloyd Kenyon ruled that “a

captive in the army being underage is liable to pay for

a library ordered for his servant, as necessaries but

not for cockades ordered for the soldiers of his

company.” Kenyon’s opinion illustrates the breadth of

what could be deemed “necessary” depending on an

individual’s responsibilities and status.

“An infant may contract for necessaries,

convenientia; though they are not necessary quod effe,

yet that for such provision he shall be chargeable.” StJohn Baker, THE INFANTS’ LAWYER (2d. ed. 1712).

“Among those articles not adjudged necessaries in

ordinary cases are articles of mere luxury for the

infant himself, or for the entertainment of his friends,

horses and grain or harness for them, unless

necessary in carrying on his business, loans of money,

liquor, etc.” Clayton Isaac Miller, CONTRACTS OF

INFANTS 12 (Cornell Law School 1892). (internal

citations omitted). The voidability rule afforded sole

discretion over whether to exercise the privilege of

voiding a contract to minors, not to adults over

twenty-one, and so it should not be contorted to

provide analogous support for the restriction of the

rights of young adults today.

Judicial and Legislative Authority

Recognized the Necessity of Firearms

Firearms are squarely within the definition of

“necessaries” exempt from the voidability rule during

the Founding Era. As set forth in Peters v Fleming,

determining what was “necessary” was a “question of

circumstances—not only of age but also of station in

life.” 6 M. & W. 42 (Ex. 1839). “From the landing of

the Pilgrims in 1620 until the last Indian menace on

the Kansas frontier in 1885, the rifle over the fireplace

and the shotgun behind the door were imperatively

necessary utensils of every rural American household.

And it was just as imperative that the members of

such household, old and young, should know how to

handle them. And it was almost equally true that,

unless a man were trained in the use of the rifle and

shotgun in his boyhood, he seldom learned to use

them.” Parman v. Lemmon, 244 P. 227 (Kan. 1925)

(Dawson, J., dissenting), dissent adopted on

rehearing, Parman v. Lemmon, 224 P. 232 (1926)

(emphasis added)(overturning statute that prohibited

furnishing a pistol, revolver, or other weapon to a

minor). Indeed, the 1606 Virginia Charter gave

settlers the perpetual right to import “the Goods,

Chattels, Armour, Munition, and Furniture, needful

to be used by them, for their said Apparel, Food,

Defence or otherwise.” 7 Federal and State

Constitutions Colonial Charters, and Other Organic

Laws of the States, Territories, and Colonies Now or

Heretofore Forming the United States of America

3783, 3786 (Francis Newton Thorpe ed., 1909).

As pointed out by petitioner, a 1786

Massachusetts Law barred local officials from taking

“any person’s arms or household utensils, necessary

for upholding life” pursuant to a debt collection

warrant. Pet. at 33 (citing Act of Feb. 16, 1786, 1785

Mass. Acts 510, 516); see also THE PUBLIC RECORDS OF

THE COLONY OF CONNECTICUT 537 (J. Hammond

Trumbull ed., 1850) (Code of 1650) (similar law in

Connecticut); 30 ARCHIVES OF MARYLAND 277, 280

(William Hand Browne ed., 1910) (Act of 1715)

(similar law in Maryland); 1723 Va. Stat. 121 (similar

law in Virginia). This “necessaries” sentiment was

reiterated in Crocker v. Spencer, where the court

found that “tools, arms, or articles of household

furniture” were “necessary articles of household

furniture for the upholding of life” exempt from

bankruptcy-related seizures. 2 D. Chip. 68 (1824).

In Virginia, all free males between sixteen and

sixty years of age were required by law to provide

themselves with arms, powder, and shot. The act

requiring this provision specified that the arms and

ammunition were exempt from impressment,

"distresse, seizure, attachment or execution.” Anna L.

Hawley, THE MEANING OF ABSENCE: HOUSEHOLD

INVENTORIES IN SURRY COUNTY, VIRGINIA, 1690-1715,

in EARLY AMERICAN PROBATE INVENTORIES, at 27-28

(Peter Benes ed., 1987). It was “the duty of all persons

(except women, decrepit persons, and infants under

fifteen) to aid and assist the peace officers to suppress

riots & c. when called upon to do it. They may take

with them such weapons as are necessary to enable

them effectually to do it.” John Adams, 3 LEGAL

PAPERS OF JOHN ADAMS 5 at 285 (L. Kinvin Wroth &

Hiller B. Zobel eds., 1965).

In some instances, military uniforms were

considered “necessities” for those not enlisted in the

armed forces. See, e.g., Coates v Wilson (1804) 5 Esp.

152; 170 ER 769 (military uniforms for a volunteer

corps were necessary as a consequence of the number

of men who had enlisted for military service at the

time). In this case, the court emphasized that “it was

only right that in these perilous times, an infant ought

to be able to contract for clothing which was essential

for duties undertaken for defence of the country. Id.

(cleaned up).

And so, firearms in the founding era were

necessary de bene effe, and therefore were exempt

from the voidability rule. Pickering and Gunning, 1

Inst. 172. Palm. 528.

Unofficial Records Confirm that

Firearms Were Pervasive in Founding

Era American Culture

The historical record also confirms that

firearms were as much a part of Founding Era

American Culture as they are today. On July 8, 1775,

the Continental Congress warned King George III

that the Americans’ superiority with arms, due to

their training beginning in childhood, would make

them a formidable foe: “Men trained to Arms from

their Infancy, and animated by the Love of Liberty,

will afford neither a cheap or easy Conquest.” 1

JOURNALS OF THE AM. CONGRESS FROM 1774-1788, at

106-11 (adopted July 8, 1775) (1823) (emphasis

added). Countless letters warned the British of the

American advantage due to its citizenry’s “use of

firearms almost from the cradle.” MOSES COIT TYLER,

THE LITERARY HISTORY OF THE AMERICAN

REVOLUTION, 1763–1776, at 484 (1898). David

Ramsay, a legislator from South Carolina and

delegate to the Continental Congress, pointed out that

Americans were “from their youth familiar with these

instruments.” Id. Still other sources attributed

American successes during the Revolutionary War to

the fact that every soldier was “intimate with his gun

from his infancy.” 1 THE WORKS OF THOMAS

JEFFERSON 208 (H. A. Washington ed., 1884).

Additionally, probate records reflect that most

recorded estates from the Founding Era included at

least one firearm. (63% of estates containing

firearms). James Lindgren and Justin L. Heather,

Counting Guns in Early America, 43 WM. & MARY L.

REV. 1777, 1801 (2002). Due to manufacturing costs,

only the richest individuals at the time were able to

own more than one firearm, much less multiple new

firearms. Instead, probate records reflect that most

people passed firearms down from generation to

generation. Firearms were more common in estates

than copies of the Bible (32%) and edged weapons

(30%). Id. Guns were next in importance after beds,

cooking utensils, and pewter—outranking chairs and

books. Id. at 1837. Firearms were “highly desired and

important part[s] of the culture of the day.” Id. at

1838. Indeed, “if guns were merely a luxury or a

relatively useless tool, one would not expect to find

roughly as many or more guns than chairs, but that is

precisely what those of us who count items in probate

inventories find. Further, if guns were not useful, one

might expect to find most guns listed as old or in poor

working condition, but fully 87-91% of gun estates in

the three databases we examined at length here listed

at least one gun that was not pejoratively described as

old or broken.” Id.

By law, “no person under 18 years [was]

capable of disposing of his chattels by will.” Henning,

William Waller, THE NEW VIRGINIA JUSTICE:

COMPRISING THE OFFICE AND AUTHORITY OF A JUSTICE

OF THE PEACE, IN THE COMMONWEALTH OF VIRGINIA

262 (1795). Since an estimated 50-79%3 of itemized

male estates from the Founding Era contained

firearms, it follows that young adults acquired these

items from their forefathers, and may have passed

them down to their own descendants, all before

turning twenty-one.

3 This estimate may be lower than the actual value, since

“appraisers in Surry County may have selectively omitted the

guns of poor men from their inventories so that their heirs could

meet their civic responsibility.” Anna L. Hawley, The Meaning of

Absence: Household Inventories in Surry County, Virginia, 16901715, in EARLY AMERICAN PROBATE INVENTORIES, at 27-28 (Peter

Benes ed., 1987).

Later Acknowledgement of Firearms

as “Necessaries”

Although not binding, it is informative that

courts acknowledged that firearms were an exception

to the voidability rule outside of the Founding Era. In

1851, the Supreme Court of Vermont held that “the

infant should be enabled to pledge his credit for

necessaries to any extent, consistent with his perfect

safety.” Bradley v. Pratt, 23 Vt. 378, 384 (1851)

(emphasis added). Additionally, in 1847, Virginia

courts held that:

[t]he capacity of all citizens or subjects

able to bear arms to bind themselves to

do so by voluntary enlistment, is in itself

a high rule of the public law, to which the

artificial and arbitrary rule of the

municipal law forms no exception. The

rule of the public law is subject to but two

conditions, the ability of the party to

carry arms, and his consent to do so; and

these conditions may exist in as full force

at the age of eighteen as at the age of

twenty-one. The party is subject to no

incapacity by any arbitrary rule in

regard to discretion; and there is but

little room for discretion when he is in

the line of his allegiance and public

duty.”

United States v. Blakeney, 44 Va. (3 Gratt.)

405, 418 (1847). In that case, the court held that the

contract was valid, since Blakeney, a 19-year-old

adult, had the mental and physical capacity to bear

arms. Id.

Most recently, this Court offered a list of

longstanding firearms regulations that were

presumptively lawful. Heller, 554 U.S. at 627. Age

restrictions were not on the list. Id.; see also Worth v.

Jacobson, 108 F.4th 677, 698 (8th Cir. 2024), cert.

denied, No. 24-782, 2025 WL 1151242 (U.S. Apr. 21,

2025). Heller gave further detail, with the observation

that ‘the people’ “unambiguously refers to all

members of the political community, not an

unspecified subset. Id. at 579-80 (citing United States

v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (“‘the

people’ seems to have been a term of art employed in

select parts of the Constitution. Its uses suggest that

‘the people’ protected by the Fourth Amendment, and

by the First and Second Amendments, and to whom

rights and powers are reserved in the Ninth and

Tenth Amendments, refers to a class of persons who

are part of a national community or who have

otherwise developed sufficient connection with this

country to be considered part of that community”)

(cleaned up).

III.

Founding Era Statutes Regulating the Use of

Firearms by Minors

Rather than preventing minor access to

firearms, Founding Era statutes confirm that minors

and individuals above the age of majority were

identically regulated. For example, Delaware state

law prohibited discharging firearms “within the towns

and villages, and other public places” of the state, and

extended its prohibition to any “child or children” that

broke the law. 195 DEL. LAWS 522 § 2 (1812). New

York City had a similar law restricting discharging

firearms “at any Mark, or at Random, against any

Fence, Pales or other Place in any Street, Lane or

Alley, or within any Orchard, Garden or other

Inclosure [sic], or in any Place where Persons frequent

to walk;” on pain of fines. N.Y.C., N.Y., ORDINANCES §

VI (1763). The New York City statute applied equally

to “Children, Youth, Apprentices, Servants, or other

Persons.” Id. Further, South Carolina law prohibited

firing of arms in Columbia, noting that if such illegal

firing were committed “by minors or other disorderly

persons, who have no ostensible property,” the guns in

question could be seized. COLUMBIA, S.C., Ordinances

No. 41 (1823).

Since Colonies and States in the Founding Era

regulated the use and acquisition of firearms without

discriminating on the basis of age, “[t]he right of the

whole people, old and young, men, women and boys,

and not militia only, to keep and bear arms of every

description, and not such merely as are used by the

militia, shall not be infringed, curtailed, or broken in

upon, in the smallest degree; and all this for the

important end to be attained: the rearing up and

qualifying a well-regulated militia, so vitally

necessary to the security of a free State.” Heller, 554

U.S. at 583 (emphasis in original).

In capsule form, Founding Era judicial,

legislative, and probate records confirm that Second

Amendment rights extend to individuals younger

than twenty-one years old. Notwithstanding the fact

that “for political rights, the Twenty-Sixth

Amendment sets the age of majority at age 18,”

firearms are “necessaries” exempt from the voidability

rule. Worth v. Jacobson, 108 F.4th 677, 692 (8th Cir.

2024); U.S. CONST. amend. XXVI. And so, this rule is

not a proper analogue to the age ban at issue in this

case.

CONCLUSION

Because Founding Era precedent, statutes, and

probate records all confirm that firearms were

considered “necessaries” exempt from the voidability

rule, the rule does not provide historical support for a

contemporary firearm purchase ban.

Accordingly, the Court should grant certiorari

and reverse the decision below.

Dated: June 20, 2025

Respectfully Submitted,

Edward A. Paltzik, Esq.