Amicus Curiae Brief — West Virginia Citizens Defense League, Inc., Petitioner v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al.

No. 25-132

In the Supreme Court of the United States

WEST VIRGINIA CITIZENS DEFENSE LEAGUE, INC.,

Petitioner,

V.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND

EXPLOSIVES, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 19 OTHER STATES

IN SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25306

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

CALEB B. DAVID

Deputy Solicitor General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 2

Reasons for Granting the Petition...................................... 3

I.

Some Lower Courts Are Improperly Decoupling

The Right To Bear Arms From The Right To

Purchase Them .............................................................. 3

II. Some Lower Courts Are Improperly Using

Non-Firearms Regulations As Historical

Support For Modern Firearms Restrictions ............. 8

III. Some Lower Courts Are Still Improperly

Engaging In Interest-Balancing ............................... 12

IV. Lower Courts Are Split Over Whether Age

Restrictions Are Constitutional ................................. 15

A. The Split Is Deep .................................................. 15

B. The Answer Is Clear ............................................ 17

C. The Time To Act Is Now ...................................... 20

Conclusion ........................................................................... 22

II

TABLE OF AUTHORITIES

Page(s)

Cases

Andrews v. State,

50 Tenn. 165 (1871) ......................................................... 6

Bavington v. Clarke,

2 Pen. & W. 115 (Pa. 1830) ........................................... 20

Bianchi v. Brown,

111 F.4th 438 (4th Cir. 2024) ....................................... 13

Commonwealth v. Barker,

5 Binn. 423 (Pa. 1813) ................................................... 18

In re Dewey,

28 Mass. 265 (1831) ................................................. 18, 20

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................... 1, 6, 16, 21

Duncan v. Bonta,

133 F.4th 852 (9th Cir. 2025) ....................................... 14

Fraser v. ATF,

672 F. Supp. 3d 118 (E.D. Va. 2023) ..................... 17, 20

Gazzola v. Hochul,

88 F.4th 186 (2d Cir. 2023) ............................................ 6

Griswold v. Connecticut,

381 U.S. 479 (1965) ......................................................... 7

Hill v. Colorado,

530 U.S. 703 (2000) ......................................................... 7

Hirschfeld v. ATF,

5 F.4th 407 (4th Cir. 2021) ............................................. 7

Hunter v. Cortland Hous. Auth.,

714 F. Supp. 3d 46 (N.D.N.Y. 2024).............................. 9

III

Ill. Ass’n of Firearms Retailers v. City of

Chicago,

961 F. Supp. 2d 928 (N.D. Ill. 2014) .............................. 8

Jones v. Bonta,

34 F.4th 704 (9th Cir. 2022) ................................... 18, 19

Lara v. Comm’r Pa. State Police,

125 F.4th 428 (3d Cir. 2025) ................................... 16, 17

Luis v. United States,

578 U.S. 5 (2016) ............................................................. 7

McDonald v. Chicago,

561 U.S. 742 (2010) ......................................................... 1

McRorey v. Garland,

99 F.4th 831 (5th Cir. 2024) ........................................... 5

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ....................................................... 10

Miller v. Bonta,

699 F. Supp. 3d 956 (S.D. Cal. 2023) ........................... 10

Nat’l Rifle Ass’n v. Bondi,

133 F.4th 1108 (11th Cir. 2025)) .................. 9, 11, 15, 16

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................ 1, 8, 10, 12, 13, 14, 19

Nguyen v. Bonta,

140 F.4th 1237 (9th Cir. 2025) ....................................... 6

Nunn v. Georgia,

1 Ga. 243 (1846) ............................................................. 21

Ortega v. Lujan Grisham,

741 F. Supp. 3d 1027 (D.N.M. 2024) ............................. 5

Perpich v. Dep’t of Def.,

496 U.S. 334 (1990) ....................................................... 17

IV

Quarles v. United States,

587 U.S. 645 (2019) ....................................................... 20

Radich v. Guerrero,

No. 1:14-CV-00020, 2016 WL 1212437

(D. N. Mar. I. Mar. 28, 2016) ......................................... 7

Reese v. ATF,

127 F.4th 583 (5th Cir. 2025) ............................... 6, 8, 16

Rocky Mountain Gun Owners v. Polis,

121 F.4th 96 (10th Cir. 2024) ................................... 5, 16

Roper v. Simmons,

543 U.S. 551 (2005) ....................................................... 21

State v. Rumpff,

308 A.3d 169 (Del. Super. Ct. 2023) .............................. 6

Teixeira v. County of Alameda,

822 F.3d 1047 (9th Cir. 2016) ......................................... 7

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) ........................................... 6

United States v. Bainbridge,

24 F. Cas. 946 (C.C.D. Mass. 1816) ....................... 19, 20

United States v. Blakeney,

44 Va. 405 (1847) ..................................................... 18, 20

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ......................................... 9

United States v. Garcia,

115 F.4th 1002 (9th Cir. 2024) ..................................... 14

United States v. Gould,

No. 24-4192, 2025 WL 2110902

(4th Cir. July 29, 2025) ................................................. 12

United States v. Knipp,

138 F.4th 429 (6th Cir. 2025) ......................................... 6

V

United States v. Miller,

307 U.S. 174 (1939) ....................................................... 17

United States v. Rahimi,

602 U.S. 680 (2024) .......................... 2, 8, 9, 10, 11, 14, 15

United States v. Vlha,

142 F.4th 1194 (9th Cir. 2025) ....................................... 6

Vt. Fed’n of Sportsmen’s Clubs v.

Birmingham,

741 F. Supp. 3d 172 (D. Vt. 2024) .................................. 5

Worth v. Jacobson,

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

Statutes

18 U.S.C. § 922 ................................................................ 2, 21

Militia Act of 1792, 1 Stat. 271 (1792) ..................... 4, 16, 17

Other Authorities

Adam J. Ondo,

Preserving and Restoring Firearms

Rights, or: How I Learned to Stop

Worrying and Love the Government,

68 ADVOCATE 20 (2025) ................................................ 14

ANNALS OF CONG. 1851 (1790)

(statement of Rep. Josiah Parker) ............................... 4

American Community Survey,

2023 ACS 1-Year Estimates Subject

Tables, Table S0101,

https://tinyurl.com/3pea6a4y

(last visited Aug. 25, 2025) ........................................... 21

VI

CONSTITUTION OF THE UNITED STATES

(Boston, Hilliard, Gray, & Co. 1833)........................... 22

Daniel S. Harawa,

Between A Rock and A Gun,

134 YALE L.J. FORUM 100 (2024) ................................ 14

David B. Kopel & Joseph G.S. Greenlee,

History and Tradition in Modern

Circuit Cases on the Second

Amendment Rights of Young People,

43 S. ILL. U. L.J. 119 (2018) ......................................... 18

David B. Kopel & Joseph G.S. Greenlee,

The Second Amendment Rights of

Young Adults,

43 S. ILL. U. L.J. 495 (2019) ........................................... 4

Ian Ayres & Fredrick E. Vars, The

Coming Assault on Categorical Gun

Prohibitions, 77 STAN. L. REV. ONLINE

31, 41 (2025) ................................................................... 15

Joel Alicea,

Bruen Was Right, 174 U. PA. L. REV.

(forthcoming 2025)........................................................ 12

JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES

(Boston, Hilliard, Gray, & Co. 1833)........................... 21

Leo Bernabei,

Bruen As Heller: Text, History, and

Tradition in the Lower Courts,

92 FORDHAM L. REV. ONLINE 1 (2024) ........................ 1

VII

Mark W. Smith,

Much Ado About Nothing: Rahimi

Reinforces Bruen and Heller, 2024

HARV. J.L. & PUB. POL’Y PER CURIAM

26 (2024) ......................................................................... 14

Mark W. Smith,

The Third Rails of Second Amendment

Jurisprudence: Guidance on Deriving

Historical Principles Post-Bruen,

2025 HARV. J.L. & PUB. POL’Y PER

CURIAM 2 (2025) ........................................................... 18

Marquan Robertson,

Levels of Generality & Originalism:

Proposing a New Way Forward as

Originalism Continues to Expand,

49 MITCHELL HAMLINE L. REV. 27

(2023) .............................................................................. 11

Michael P. O’Shea,

The Concrete Second Amendment:

Traditionalist Interpretation and the

Right to Keep and Bear Arms,

26 TEX. REV. L. & POL. 103 (2021) .............................. 13

Paul Hemez & Chanell Washington,

Living Arrangements Varied Across

Age Groups (May 30, 2024),

https://tinyurl.com/mr5pk4f6

(last visited Aug. 25, 2025) ........................................... 21

THE PUBLIC RECORDS OF THE COLONY OF

CONNECTICUT, PRIOR TO THE UNION

WITH NEW HAVEN COLONY, May 1665

(J. Hammond Trumbull, ed. 1850) .............................. 19

VIII

Ryder S. Gaenz,

You’ll Grow Into It: How Federal and

State Courts Have Erred In Excluding

Persons Under Twenty-One From ‘The

People’ Protected by the Second

Amendment,

17 FIU L. REV. 197 (2023) ........................................... 18

Saul Cornell,

“Infants” and Arms Bearing in the Era

of the Second Amendment: Making

Sense of the Historical Record,

40 YALE L. & POL’Y REV. INTER ALIA 1

(2021) ................................................................................ 4

S. CT. RULE 37.2 ................................................................... 1

S. Rep. No. 90-1097,

1968 U.S.C.C.A.N. 2112

(statement of Sen. Tydings) ........................................ 11

U.S. CENSUS BUREAU, “Age and Sex,”

American Community Survey, 2023

ACS 1-Year Estimates Subject Tables,

Table S0101,

https://tinyurl.com/3pea6a4y (last

visited Aug. 25, 2025) ................................................... 21

WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF

ENGLAND

(Oxford, Clarendon Press 1765) .................................. 11

INTRODUCTION AND INTERESTS

OF AMICI CURIAE1

Just recently, the States explained how the Second

Amendment has been misapplied in lower courts far too

often lately. See Brief for West Virginia et al. as Amici

Curiae Supporting Petitioners, McCoy v. ATF, No. 25-24

(S. Ct. Aug. 7, 2025). And now here we are again.

A reminder of the fundamental issue, which started

about two decades ago. In District of Columbia v. Heller,

554 U.S. 570 (2008), the Court restored the Second

Amendment to first-class status. The Second Amendment

was once more one of the “fundamental rights necessary

to our system of ordered liberty.” McDonald v. Chicago,

561 U.S. 742, 778 (2010). But lower courts then spent the

next few years undoing that work. They adopted a policydriven, interest-balancing approach, effectively coalescing

around the Heller dissent. So this Court stepped in again

“to halt [this] judicial underenforcement.” Leo Bernabei,

Bruen As Heller: Text, History, and Tradition in the

Lower Courts, 92 FORDHAM L. REV. ONLINE 1, 3 (2024)

(cleaned up). Yet New York State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1 (2022), didn’t necessarily bring text,

history, and tradition back to the fore, either. Some courts

continued to dodge history in favor of preferred interests.

On the other hand, others overread Bruen to require a

perfect historical analogue to any modern law. So the

Court charged once more into the breach, clarifying that

judicial policymaking in the Second Amendment space is

dead—but Second Amendment law also isn’t “trapped in

Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

1

2

amber.”

(2024).

United States v. Rahimi, 602 U.S. 680, 691

Still, judging from decisions like the one here (which

just mechanically applies McCoy), it might require

another dose or two of clarity from this Court before the

treatment takes hold. A divided Fourth Circuit panel

again upheld a federal statute banning the sale of

handguns to 18- to 20-year-olds. 18 U.S.C. § 922(b)(1). It

relied on suspect historical analysis (with a dash of policy)

from McCoy to do so. And it again said a de facto

categorical ban was just fine. Very little of that sounds

like the Second Amendment post-Bruen, even with a

Rahimi gloss. So this Court needs to remind lower courts

once more of how to do this.

Whether the Court grants this petition, the McCoy

petition, or both, the time to act is now. The States here

have a strong interest in seeing the Second Amendment

applied as it was originally intended. And there’s still

plenty to say about the scope of the Second Amendment

right, especially when it comes to the rights of young

Americans. The Court should thus grant.

SUMMARY OF ARGUMENT

I. Lower courts have improperly sought to separate

the right to possess firearms from the right to purchase

them. Here, the Fourth Circuit rejected compelling

evidence that sub-21-year-old militiamen were legally

compelled to possess firearms by suggesting—rather

implausibly—that this responsibility shed no light on their

right to purchase. But the two rights must be read

together. Divorcing them invites mischief; governments

could implement de facto bans without ever purporting to

limit “possession.”

3

II. Lower courts have also stretched too far in their

hunt for historical analogues. The Fourth Circuit has

relied on non-firearms-related legal principles to justify

firearms regulation. The Court has demanded a closer fit

than that. Non-firearms-related regulations are not likely

to have an underlying “how” or “why” that would track a

modern-day gun-control statute, so courts shouldn’t use

them as historical justification.

III. Lower courts have also continued engaging in the

sort of policy-oriented interest-balancing that this Court

has said can’t be done. Slippery slope arguments and gut

feelings about “minors” (really, young adults) drove the

logic behind the decision below. Interest-balancing is

sneaking into other decisions, too.

Though it’s

unfortunate a reminder is necessary, the Court should

grant the petition (or summarily reverse) lest this

interest-balancing continue indefinitely.

IV. Lower courts have split over whether statutes

controlling young adults’ ability to buy or bear firearms

violate the Second Amendment. Three federal circuits say

they do; three say they don’t. The split has left the States

confused—a problematic situation given that about 20 or

so States have minimum age laws of their own. Young

adults have the constitutional right to purchase firearms,

handguns included. Historical evidence supports that

right. And nothing supports holding off on saying so.

REASONS FOR GRANTING THE PETITION

I.

Some Lower Courts Are Improperly Decoupling

The Right To Bear Arms From The Right To

Purchase Them.

Lower courts have inappropriately affirmed firearms

restrictions by separating the right to possess arms from

4

the right to purchase them. This case is another example.

The Court should grant the petition to rectify that

mistake.

A. The decision below shows how a misguided

separation can play out.

The same majority had

acknowledged in McCoy that an early American law—the

Militia Act of 1792—expressly required a militiaman (who

might often be under 21) to “provide himself” with a

firearm if called to serve. Pet.App.19a. That law should

have made the outcome clear: “The militia has the right

to keep and bear arms; 18-to-20-year-olds are part of the

militia; [t]herefore, 18-to-20-year-olds have the right to

keep and bear arms.” David B. Kopel & Joseph G.S.

Greenlee, The Second Amendment Rights of Young

Adults, 43 S. ILL. U. L.J. 495, 499 (2019).

But although the Militia Act contemplated that a 19year-old might lawfully wield a gun, it did not show that

he could “purchase [one] for himself.” Pet.App.19a.

Instead, the majority thought, the young militiaman

might just borrow a gun from his parents. Pet.App.19a;

accord Saul Cornell, “Infants” and Arms Bearing in the

Era of the Second Amendment: Making Sense of the

Historical Record, 40 YALE L. & POL’Y REV. INTER ALIA

1, 8 (2021) (arguing that individuals under 21 had no

Second Amendment rights at the Founding because they

“were entirely subsumed under the authority of their

parents”); but see, e.g., 2 ANNALS OF CONG. 1851 (1790)

(statement of Rep. Josiah Parker) (documenting a

founding-era lawmaker’s concerns that the provision

requiring “every man” to “‘provide himself’ with military

accoutrements would be found impracticable … [as] there

are many persons who are so poor” as to be unable to

purchase weapons commercially”).

5

Given that this historical evidence was purportedly

silent on purchase specifically, the Fourth Circuit

dismissed it out of hand. No matter that a young adult

could concededly wield a gun; he evidently had no

historical right to exchange cash for one.

B. Some other courts have gone even further than the

Fourth Circuit’s faux historical line-drawing between

purchase and possession, declaring instead that the

Second Amendment is not meant to protect the purchase

of firearms at all. See, e.g., Rocky Mountain Gun Owners

v. Polis, 121 F.4th 96, 127 (10th Cir. 2024) (holding that a

Colorado state age-restriction law governing purchases

did not implicate the right to keep and bear arms);

McRorey v. Garland, 99 F.4th 831, 838 (5th Cir. 2024)

(saying that the Second Amendment “does not include

purchase” “on its face”); Ortega v. Lujan Grisham, 741 F.

Supp. 3d 1027, 1073 (D.N.M. 2024) (“[T]he Second

Amendment was not drafted to protect the right to

purchase arms.”); Vt. Fed’n of Sportsmen’s Clubs v.

Birmingham, 741 F. Supp. 3d 172, 209 (D. Vt. 2024)

(“[A]cquiring a firearm through a commercial transaction

on-demand … is not covered by the plain text of the

Second Amendment.”).

For a policy-oriented jurist looking to uphold a firearms

regulation, this method has obvious appeal. Divorcing the

right to purchase from the right to possess in this way

provides more opportunity for encumbrances on the right.

Even if a government can’t justify an outright ban on

possession, it might sneak through the back door by way

of onerous purchase restrictions.

But another set of courts has seen things differently,

holding that the right to purchase walks together with the

right to possess. See, e.g., Reese v. ATF, 127 F.4th 583,

590 (5th Cir. 2025) (“[T]he right to ‘keep and bear arms’

6

surely implies the right to purchase them.”); Gazzola v.

Hochul, 88 F.4th 186, 195 (2d Cir. 2023) (per curiam) (“A

State cannot circumvent [Second Amendment doctrine]

by banning outright the sale or transfer of common-use

weapons and necessary ammunition.”); Teixeira v.

County of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (en

banc) (quoting Ezell v. City of Chicago, 651 F.3d 684, 704

(7th Cir. 2011)) (“The core Second Amendment right to

keep and bear arms for self-defense ‘wouldn’t mean much’

without the ability to acquire arms.”), abrogated on other

grounds by United States v. Vlha, 142 F.4th 1194, 1197

(9th Cir. 2025); State v. Rumpff, 308 A.3d 169, 175 (Del.

Super. Ct. 2023) (“[T]his amendment confers an individual

right to purchase and possess firearms.” (cleaned up)).

Even the Ninth Circuit—a court not recently seen as one

racing to recognize the breadth of the Second Amendment

right—has reaffirmed that “the Second Amendment does

protect against meaningful constraints on the acquisition

of firearms through purchase.” Nguyen v. Bonta, 140

F.4th 1237, 1243 (9th Cir. 2025). And even long before the

Heller reset, courts had recognized that purchase and

possession are intertwined. See, e.g., Andrews v. State, 50

Tenn. 165, 178 (1871) (“The right to keep arms[]

necessarily involves the right to purchase them.”). All

these courts see that “the Second Amendment protects

‘necessary corollaries’ to keeping and bearing arms,”

purchase included. United States v. Knipp, 138 F.4th 429,

434 (6th Cir. 2025).

C. The approach favored in the Fourth Circuit and

courts like it inappropriately divorces the right to bear

arms from the means to obtain it.

Buying a gun is the principal way through which

someone might possess one. As the Fourth Circuit once

recognized itself, “other options are not always readily

7

available to many individuals.” Hirschfeld v. ATF, 5 F.4th

407, 417 (4th Cir. 2021), vacated as moot, 14 F.4th 322 (4th

Cir. 2021). And “[t]he law has long recognized that the

authorization of an act also authorizes a necessary

predicate act.” Luis v. United States, 578 U.S. 5, 26

(2016) (Thomas, J., concurring in the judgment) (cleaned

up) (quoting A. SCALIA & B. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 192 (2012)). “Without

[] peripheral rights the specific rights would be less

secure.” Griswold v. Connecticut, 381 U.S. 479, 482-83

(1965). “[T]he same rationale underpins other cases

striking down restrictions on [buying and] selling, but not

possessing, certain goods necessary to exercise

constitutional rights.” Radich v. Guerrero, No. 1:14-CV00020, 2016 WL 1212437, at *7 (D. N. Mar. I. Mar. 28,

2016) (collecting authorities). That’s because “[t]here

comes a point … at which the regulation of action

intimately and unavoidably connected with [a right] is a

regulation of [the right] itself.” Hill v. Colorado, 530 U.S.

703, 745 (2000) (Scalia, J., dissenting).

And the right to buy firearms may have independent

status beyond its role as an ancillary or predicate right.

Strong historical evidence suggests that the Founders

thought the core Second Amendment right “necessarily

extended to commerce in firearms.” Teixeira v. County of

Alameda, 822 F.3d 1047 (9th Cir. 2016), rev’d on other

grounds, 873 F.3d 670, 673 (9th Cir. 2017) (en banc).

When a court instead treats purchase as some separate

right (either at the first or second step of Bruen’s

analysis), a 20-year-old’s ability to lawfully exercise the

right to possess turns on the happenstance of having

lawful access to someone else’s firearm—or the ability to

convince someone older to step in, buy a firearm, and gift

it over. See Pet.App.38a (Quattlebaum, J., dissenting).

8

The Second Amendment right becomes too conditional to

be meaningful. Reese, 127 F.4th at 590. Governments are

empowered to undermine “the most fundamental

prerequisite of legal gun ownership—that of simple

acquisition.” Ill. Ass’n of Firearms Retailers v. City of

Chicago, 961 F. Supp. 2d 928, 938 (N.D. Ill. 2014).

* * *

The Court should grant certiorari to reaffirm the tie

between purchase and possession.

II.

Some Lower Courts Are Improperly Using NonFirearms Regulations As Historical Support

For Modern Firearms Restrictions.

The Fourth Circuit also looked to the wrong body of

law in upholding the purchase restriction here. “[W]hen a

firearm regulation is challenged under the Second

Amendment, the Government must show that the

restriction ‘is consistent with the Nation’s historical

tradition of firearm regulation.’” Rahimi, 602 U.S. at 689

(quoting Bruen, 597 U.S. at 24) (emphasis added). A court

must “determin[e] whether a historical regulation is a

proper analogue for a distinctly modern firearm

regulation” because the two are “relevantly similar.”

Bruen, 597 U.S. at 28-29. But here, the Fourth Circuit has

tried to draw an analogy to a legal concept that’s not a

firearm regulation at all, let alone an analogous one.

In McCoy (and by extension, here), the Fourth Circuit

looked to the infancy doctrine, which allowed individuals

under 21 to void most contracts. Pet.App.12a. It

speculated that most firearms purchases at the Founding

were made on credit rather than with physical currency or

bartering, so it was unlikely sellers sold to minors who

could later void the credit contract. Pet.App.13a-14a.

9

Without confirmed evidence, the majority found that this

risk of refusal may have effectively precluded infants from

buying firearms. Pet.App.14a; cf. United States v. Diaz,

116 F.4th 458, 467-70 (5th Cir. 2024) (analogizing general

asset forfeiture and capital punishment laws to modern

restrictions of felon possession of firearms).

Examining common-law contract doctrine in this

(suspect) way shouldn’t suffice, even if that doctrine

tangentially affected individuals’ purchasing power when

it comes to firearms. A general contract law recognizing

founding-era societal norms—like men under 21 being

“infants”—isn’t “relevantly similar” to a federal ban on

the purchase of firearms. Rahimi, 602 U.S. at 692. Any

restriction on firearms is merely an incidental byproduct,

not a deliberate expression of the scope of the natural

right to bear arms. And this Court “has not instructed

[lower courts] to consider an untethered ‘historical

tradition’—the tradition must be of firearm regulation.”

Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1165 (11th Cir.

2025) (en banc) (Branch, J., dissenting). At bottom, the

infancy doctrine “is not a firearm regulation at all; it is a

contract-law doctrine” that is “a far cry from the historical

regulations that th[is] Court has considered as proper

analogues.” Id.

To this point, this Court hasn’t found that a generalized

law like the infancy doctrine provides a historical analogue

to modern firearms regulation. See Hunter v. Cortland

Hous. Auth., 714 F. Supp. 3d 46, 59 (N.D.N.Y. 2024)

(noting the absence of cases analogizing “firearm

regulations at issue … to a non-firearm regulation”).

Quite the opposite.

In Rahimi, for instance, the Court found a historical

analogue in surety laws that “targeted the misuse of

firearms.” Rahimi, 602 U.S. at 696. And it found another

10

in “going armed” laws, which prohibited “arming oneself

to the Terror of the People.” Id. at 697 (cleaned up).

Those laws punished offenders by disarming them, id., so

the Court found that a present-day statute disarming an

individual subject to a domestic violence restraining order

consistent with a tradition of “disarm[ing] individuals who

present a credible threat to the physical safety of others,”

id. at 700.

Likewise, in Bruen, no law existed broadly prohibiting

the carrying of handguns publicly for self-defense during

the founding era. So this Court deemed unconstitutional

a New York law banning the public carry of a common

firearm absent special “proper cause.” Bruen, 597 U.S. at

38-39. Note the common thread: the Court was hunting

for a law aimed specifically at firearms. See also, e.g.,

Miller v. Bonta, 699 F. Supp. 3d 956, 992 (S.D. Cal. 2023)

(rejecting an effort to analogize a firearm regulation to

“historic gunpowder storage laws” that were “fire safety

regulations—nothing more”).

This distinction between historical firearms and nonfirearms regulations makes sense. Lower courts must

examine the “how” and “why” behind the historical laws

before drawing analogies. Bruen, 597 U.S. at 29. A nonfirearm-related doctrine will most often not carry the

same “how” and “why” as a firearm-regulation, save

perhaps in the most generalized sense. Generalities aren’t

enough, though. Courts should “refer to the most specific

level at which a relevant tradition protecting, or denying

protection to, the asserted right can be identified.”

Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989).

So “judges should first do their best to find the

narrowest level of generality that history and tradition

support,” and then, if needed, “widen their search

incrementally until they discover an acceptable level of

11

generality,” without “wholly abandon[ing] any principles

or supporting factors.” Marquan Robertson, Levels of

Generality & Originalism: Proposing a New Way

Forward as Originalism Continues to Expand, 49

MITCHELL HAMLINE L. REV. 27, 52 (2023). If that’s done

earnestly, then historical non-firearms regulations will

perhaps never provide a good-fit analogue for present-day

firearms regulations. Were it otherwise, mushy norms or

ill-defined principles might erase the right entirely.

Rahimi, 602 U.S. at 740 (Barrett, J., concurring).

And indeed, that’s how all this plays out when it comes

to the infancy doctrine. As to “how,” the infancy doctrine

“incidentally reached contracts for firearms because it

reached contracts by minors for any non-necessity.”

NRA, 133 F.4th at 1165 (Branch, J., dissenting). As to

“why,” the doctrine served paternalistic purposes. It was

primarily intended to prevent young adults from digging

themselves into financial holes.

See 1 WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 451 (Oxford, Clarendon Press 1765) (contract

voidability for infants is a privilege meant “to secure them

from hurting themselves by their own improvident acts”).

In contrast, the Gun Control Act was enacted to “reduce

gun crimes,” based on the belief that stricter gun laws lead

to less gun crime. S. Rep. No. 90-1097, 1968 U.S.C.C.A.N.

2112, 2114, 2197, 2247, 2253-54 (statement of Sen.

Tydings). It eschewed an incidental approach, instead

adopting a direct ban. But by calling all this close enough,

the Fourth Circuit allowed a de facto categorical ban.

The material distinctions between infancy laws and

purchasing limits can only be forgiven if a court embraces

an extreme generality—something like, “young people

are different from older people”—and applies it to any law

drawing a line based on age. That approach would in turn

12

“eviscerate[] the text of the Second Amendment.” Joel

Alicea, Bruen Was Right, 174 U. PA. L. REV. (forthcoming

2025) (manuscript at 37).

The Court should grant the petition to remind lower

courts that they must search the historical record for

firearms regulations aimed at addressing similar

problems in similar manners as their modern analogues.

III.

Some Lower Courts Are Still Improperly

Engaging In Interest-Balancing.

Bruen also conclusively rejected the sort of “meansend scrutiny” or interest-balancing that so many courts

had favored for a long time. Bruen, 597 U.S. at 19. It

reaffirmed that Second Amendment analysis must be

“rooted in the Second Amendment’s text, as informed by

history.” Id. But far too often, courts are still taking loose

readings of history or reinterpreted bits of this Court’s

past opinions and using them to patch over a lack of

history for a given restriction. See, e.g., United States v.

Gould, No. 24-4192, 2025 WL 2110902, at *5 (4th Cir. July

29, 2025) (reciting how “Bruen jettisoned an interestbalancing test” but then emphasizing in the next sentence

that courts must leave room for “modern problems”). It’s

policy-oriented interest-balancing in disguise.

Make no mistake: the Fourth Circuit majority in this

case and McCoy embraced interest-balancing. In a

slippery slope argument (further developed in a separate

concurrence), McCoy declared any argument for youngadult rights “sweeping,” “unlimited,” and not based on

“any reasonable interpretation of the Constitution.”

Pet.App.22a.

Without engaging with the historical

evidence as to younger ages, the majority fretted that 14year-olds would be permitted to buy if it ruled for the

challengers. Pet.App.22a. And it emphasized that many

13

places had adopted such laws in the modern era, so the

court would not be invalidating an “outlier.” Pet.App.21a22a. Instead, the majority declared itself unwilling to

upset a “legislative compromise.” Pet.App.23a; contrast

with Bruen, 597 U.S. at 26 (“[W]hile … judicial deference

to legislative interest balancing is understandable—and,

elsewhere, appropriate—it is not deference that the

Constitution demands here.”)

Notice how none of these considerations really engage

with history or text. Instead, they bespeak a skepticism

that the Framers really meant what they meant. But the

lower court seemed comfortable offering these extratextual-and-historical rationales anyway, so long as it

sprinkled in a few references to history while offering its

perspective. See Pet.App.21a (discussing modern guncontrol measures because they purportedly were a

“testament to the continuity of the historical transition”).

That linguistic cladding should hardly be enough—or the

Court will end up right back where it started before

Bruen. See Michael P. O’Shea, The Concrete Second

Amendment: Traditionalist Interpretation and the Right

to Keep and Bear Arms, 26 TEX. REV. L. & POL. 103, 156

(2021) (warning of the risk that lower courts could use

“traditionalist concepts” to “unduly stifle the reach of the

right[]” in the same way they used “abstract legal

principles … such as the deferential balancing tests”).

The decision below doesn’t stand alone, either. For

instance, some courts have tried to add a dangerousness

element to the “common use” test that’s used to evaluate

the scope of the Second Amendment right. But injecting

that concept into the test again invites “the very sort of

means-end scrutiny that Bruen explicitly forbids courts

from applying in the Second Amendment context.”

Bianchi v. Brown, 111 F.4th 438, 479 (4th Cir. 2024) (en

14

banc) (Gregory, J., concurring). Other courts have looked

to broad “traditions” in lieu of searching for specific

analogues. Yet when that happens, nothing has changed

except that courts now “cloak[] interest balancing under

the guise of ‘tradition.’” Duncan v. Bonta, 133 F.4th 852,

910 (9th Cir. 2025) (en banc) (Bumatay, J., dissenting)

(comparing Ninth Circuit’s analysis pre- and post-Bruen).

Indeed, a “highly generalized approach to historical

analogizing is the best game in town” “[f]or judges looking

for a way to fill the void in judicial discretion left by

Bruen’s elimination of interest-balancing.” United States

v. Garcia, 115 F.4th 1002, 1010 (9th Cir. 2024) (VanDyke,

J., dissental). And that’s just what one might call the

majority’s treatment of the infancy doctrine below.

The continuing use of interest-balancing in disguise

might be due in part to a misunderstanding of Rahimi.

Some “cast[] the decision as a radical departure or ‘an

important first step away’ from Bruen”—or even a “mad

dash away” from traditionalist understandings of the

Second Amendment. Mark W. Smith, Much Ado About

Nothing: Rahimi Reinforces Bruen and Heller, 2024

HARV. J.L. & PUB. POL’Y PER CURIAM 26, 5 (2024); see

also, e.g., Adam J. Ondo, Preserving and Restoring

Firearms Rights, or: How I Learned to Stop Worrying

and Love the Government, 68 ADVOCATE 20, 23 (2025)

(suggesting the Court “may have rendered Bruen

toothless with its ‘clarification’ in Rahimi”). Others

describe it as a more subtle effort to “walk back (or

rewrite) Bruen stealthily.” Daniel S. Harawa, Between A

Rock and A Gun, 134 YALE L.J. FORUM 100, 112 (2024).

But truth is, nothing in Rahimi (or any of the Court’s

other recent Second Amendment cases) grants a lower

court license to fudge the history by viewing it through

fuzzy, policy-tinted glasses. Even if there’s some play in

15

the joints of how Bruen’s standard applies in a given case,

its central mandates still stand. And under those

mandates, “categorical prohibitors” like the ones here are

hard to justify. Ian Ayres & Fredrick E. Vars, The

Coming Assault on Categorical Gun Prohibitions, 77

STAN. L. REV. ONLINE 31, 41 (2025).

The Court should thus grant the petition here to

emphasize once more that policy norms—like judicial

heartburn from overturning anything other than an

“outlier” gun regulation—don’t have a role to play.

IV.

Lower Courts Are Split Over Whether Age

Restrictions Are Constitutional.

Lastly, we reach the specific law at issue here. Lower

courts have often been asked to consider state and federal

laws imposing age restrictions on the purchase of

firearms. They’ve provided inconsistent answers. The

Court should grant this petition to resolve the

inconsistency. And it should find in favor of Second

Amendment rights for young adults.

A. The Split Is Deep.

The split on these laws is intractable. Several courts

have found age restrictions constitutional while others

have found that materially indistinguishable restrictions

aren’t lawful.

The Fourth Circuit falls into the first camp, and it’s not

alone. The Eleventh Circuit, like the lower court here,

relied on the infancy doctrine to uphold Section 922(b)(1)’s

constitutionality. NRA, 133 F.4th at 1116. There, the

court said that the “Founders’ generation shared the view

that minors lacked the reason and judgment necessary to

be trusted with legal rights.” Id. at 1117. So, like the

Fourth Circuit, the Eleventh Circuit determined that

16

“[t]he inability to contract impeded minors from acquiring

firearms during the Founding era.” Id. at 1118. The

Tenth Circuit declared that a state-law age-based ban to

be “commercial,” such that it “did not even implicate the

Second Amendment’s plain text” (or Bruen’s step-two

historical analysis). Rocky Mountain Gun Owners, 121

F.4th at 127. The Tenth Circuit noted how Heller

approved certain regulations on the sale of arms; it

reasoned backwards that it must be equally lawful to

impose regulations on the purchase of arms because each

action is “dependent upon the other.” Id. at 120.

Three other circuits saw things differently. The Fifth

Circuit court determined that the founding-era legal

tradition had no laws sufficiently analogous in “how” and

“why” to justify Section 922(b)(1)’s burden on the right of

young adults to keep and bear arms. Reese, 127 F.4th at

583. The court found evidence—most prominently in the

Militia Act of 1792—that young adults likely purchased

and kept firearms. Id. at 596. The Eighth Circuit deemed

unconstitutional a Minnesota age-based carry ban for

similar reasons. Worth v. Jacobson, 108 F.4th 677, 698

(8th Cir. 2024). The court distinguished state laws

criminalizing the sale of weapons to minors, finding the

earliest such law to have been enacted in 1856. Id. at 697

(collecting statutes). And it disregarded the government’s

argument that the carry ban was a “presumptively lawful”

“longstanding prohibition.” Id. at 698 (quoting Heller, 554

U.S. at 626-27 & n.26). On parallel grounds, the Third

Circuit invalidated a Pennsylvania statute banning young

adults from carrying firearms during states of emergency.

Lara v. Comm’r Pa. State Police, 125 F.4th 428, 446 (3d

Cir. 2025). The Third Circuit eschewed “late-19th

century” law in favor of the Militia Act of 1792, which

“required all able-bodied men to enroll in the militia and

to arm themselves upon turning 18.” Id. at 441, 443. In

17

the court’s view, “[t]hat young adults had to serve in the

militia indicates that founding-era lawmakers believed

those youth could, and indeed should, keep and bear

arms.” Id. at 444.

So six circuits have considered age-based firearm

regulations. They’ve split evenly.

B. The Answer Is Clear.

The Court should resolve this split by confirming that

young adults can purchase firearms.

1. Especially considering the militia’s front-andcenter role in the Second Amendment, the analysis could

probably begin and end with militia laws. The militia

“comprised all males physically capable of acting in

concert for the common defense.” United States v. Miller,

307 U.S. 174, 179 (1939). Conscription was mandatory for

able-bodied males “who [are] or shall be of the age of

eighteen years, and under the age of forty-five years.”

Militia Act of 1792, § 1, 1 Stat. 271, 271 (1792). Now

remember the decisive part: “every citizen” enrolled in the

militia was required to “provide himself with a good

musket or firelock” within six months of notification of

enrollment. Id.; Perpich v. Dep’t of Def., 496 U.S. 334, 341

(1990) (describing Congress’s “detailed command that

every able-bodied male citizen between the ages of 18 and

45 be enrolled therein and equip himself with appropriate

weaponry”). “In the decade following the ratification of

the Second Amendment … Congress and every state then

in the Union passed a militia law requiring almost all ablebodied white men between the ages of 18 and 45 to serve

in the militia.” Fraser v. ATF, 672 F. Supp. 3d 118, 140

(E.D. Va. 2023), rev’d sub nom. McCoy v. ATF, 140 F.4th

568 (4th Cir. 2025). So founding-era law didn’t restrict

18

firearm ownership for 18- to 20-year-olds. It compelled

it—reflecting the understanding of the right at the time.

True, some States enacted militia laws raising the

minimum age to 21 before the Second Amendment was

ratified. But all those States later reversed themselves.

Fraser, 672 F. Supp. 3d at 138-41, n.23-34 (collecting

statutes). And nineteenth-century decisions confirm that

this reality continued: “[T]he age of eighteen … is the

military age recognized by the whole legislation of

Congress, and of the State of Virginia, and of all the States

of the Union, perhaps without exception.” United States

v. Blakeney, 44 Va. 405, 418 (1847) (opinion of Baldwin, J.);

see also In re Dewey, 28 Mass. 265, 271-72 (1831) (same);

Commonwealth v. Barker, 5 Binn. 423, 425-26 (Pa. 1813)

(same).

Beyond militia laws, no statute can be found directly

restricting the sale of firearms around the time of the

Founding. Back then, “[t]here were no restrictions on

sales to free citizens.” David B. Kopel & Joseph G.S.

Greenlee, History and Tradition in Modern Circuit

Cases on the Second Amendment Rights of Young People,

43 S. ILL. U. L.J. 119, 133 (2018); see also Mark W. Smith,

The Third Rails of Second Amendment Jurisprudence:

Guidance on Deriving Historical Principles Post-Bruen,

2025 HARV. J.L. & PUB. POL’Y PER CURIAM 2, 12-13 (2025)

(“For 18 to 20-year-olds, there were no laws on the books

disarming them.”). “The tradition of young adults keeping

and bearing arms” is a “deep-rooted” tradition in English

law and custom that “was brought across the Atlantic by

the American colonists.” Jones v. Bonta, 34 F.4th 704,

717-18 (9th Cir. 2022), vacated, 47 F.4th 1124. Laws

restricting firearms access for minors didn’t arise until the

mid- to-late 1800s, id., far too late to provide relevant

historical evidence, see, e.g., Ryder S. Gaenz, You’ll Grow

19

Into It: How Federal and State Courts Have Erred In

Excluding Persons Under Twenty-One From ‘The

People’ Protected by the Second Amendment, 17 FIU L.

REV. 197, 232 (2023) (surveying “[c]olonial history”

showing that even “sixteen-year-olds often were required

to bear arms in general and without relation to militia

membership”).

2. In contrast to this firm evidence, the infancy

doctrine does not provide an analogous restriction on

firearms purchasing by young adults—even if a court

could appropriately consider a non-firearms-related law.

First, firearms may have been considered

“necessaries” even aside from militia service, in which

case contracts for the purchase of firearms would bind

even infants. United States v. Bainbridge, 24 F. Cas. 946,

950 (C.C.D. Mass. 1816) (holding that necessaries “shall

bind” an infant). The Fourth Circuit cites only one case to

the (potential) contrary—hardly sufficient to constitute an

“enduring American tradition” of firearm purchasing

restrictions. Bruen, 597 U.S. at 61; see Pet.App.15a

(citing Saunders Glover & Co. v. Ott’s Adm’r, 12 S.C.L. (1

McCord) 572, 572 (Const. Ct. App. 1822)). At least one

colony explicitly declared otherwise. See The Public

Records of the Colony of Connecticut, Prior to the Union

with New Haven Colony, May 1665 537 (J. Hammond

Trumbull, ed. 1850) (exempting “necessarye … armes”

from execution of levies as “necessary [for] [u]pholding …

life”).

Moreover, “[i]f the law required 18- to 20-year-olds to

obtain arms for militia service, then those arms may have

been ‘necessaries.’” Pet.App.47a n.7 (Quattlebaum, J.,

dissenting) (citing Coates v. Wilson, 170 Eng. Rep. 769,

769; 5 Esp. 152, 152 (1807)). And as a contract for the

public service, it was likely “strictly obligatory.”

20

Bainbridge, 24 F. Cas. at 951.

For example, a

Massachusetts court found that “[t]he enlistment of an

infant over eighteen … is binding.” In re Dewey, 28 Mass.

at 269; see Blakeney, 44 Va. at 409-10, 416 (opinion of

Baldwin, J.) (same). Minors performing actions required

by law, like acquiring weapons for militia service, could

create binding contracts. See Bavington v. Clarke, 2 Pen.

& W. 115, 124 (Pa. 1830) (finding that, when “an infant,

does that which by law he is compelled to do … he is

bound”); Fraser, 672 F. Supp. 3d at 140-41.

Second, in interpreting statutory provisions such as

militia-provisioning requirements, courts generally

interpret them to achieve their intended results—which

would favor the provisioning of guns to young adults.

They would be especially likely to do so when the public

interest is involved. “It would be strange, indeed, if courts

of law could judicially hold contracts to be void, or

voidable, which the legislature should deem salutary or

essential to the public interests; or pronounce them

invalid, because entered into by the very parties, who were

within the contemplation of the law.” Bainbridge, 24 F.

Cas. at 951. And this canon of statutory interpretation

remains valid today. See, e.g., Quarles v. United States,

587 U.S. 645, 654 (2019) (“We should not lightly conclude

that Congress enacted a self-defeating statute.”).

In short, it’s wrong to assume that Congress passed the

Militia Act while also assuming that 18- to 20-year-olds

would have no direct power to comply with its weapon

requirement.

C. The Time To Act Is Now.

With the outcome clear, the Court’s need to act

becomes clear, too. “The right of the whole people, old and

young, men, women[,] and boys, and not militia only, to

21

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.”

Nunn v. Georgia, 1 Ga. 243, 251 (1846). After all, unlike

other portions of the Constitution, the Second

Amendment’s text says nothing about age.

Yet Section 922(b)(1) and laws like it strip Second

Amendment rights from thirteen million younger

Americans. See U.S. CENSUS BUREAU, “Age and Sex,”

American Community Survey, 2023 ACS 1-Year

Estimates

Subject

Tables,

Table

S0101,

https://tinyurl.com/3pea6a4y (last visited Aug. 25, 2025).

The lower court’s ruling prohibits law-abiding 18- to 20year-olds from purchasing “the most popular weapon

chosen by Americans for self-defense in the home.”

Heller, 554 U.S. at 629. Young service members will be

unable to buy the very same weapons they’re trained to

use. Young people who can vote, get married, be tried

criminally as adults, and more will be relegated to secondclass status on this lone right. See Roper v. Simmons, 543

U.S. 551, 574 (2005) (“The age of 18 is the point where

society draws the line for many purposes between

childhood and adulthood.”). And remember that a big part

of this population lives alone—unlike the parental

dependency that the majority imagined. See Paul Hemez

& Chanell Washington, Living Arrangements Varied

Across Age Groups, CENSUS.GOV (May 30, 2024),

https://tinyurl.com/mr5pk4f6 (last visited Aug. 25, 2025).

So while the right to keep and bear arms has been

considered “the palladium of the liberties of a republic,”

young adults are being unjustly deprived of central

aspects of this core liberty through Congressional and

state overreach. 3 JOSEPH STORY, COMMENTARIES ON

22

CONSTITUTION OF THE UNITED STATES § 1890

(Boston, Hilliard, Gray, & Co. 1833).

THE

There’s no reason to wait. The issue has percolated,

producing several thoughtful opinions. It’s unlikely that

further development of these questions will offer anything

helpful. And this case is another clean vehicle to tackle the

question; the arguments are preserved, the plaintiffs have

standing, and no procedural obstacles are apparent from

the record. The Government doesn’t appear to dispute the

plaintiff’s members “are law-abiding, responsible adult

citizens” otherwise qualified to purchase handguns but for

their ages. See Pet.App.64a-65a. They should not be

forced to wait until some later day to vindicate their rights.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

(304) 558-2021

mwilliams@wvago.gov

CALEB B. DAVID

Deputy Solicitor General

Counsel for Amicus Curiae State of West Virginia

23

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

KRIS KOBACH

Attorney General

State of Kansas

STEPHEN J. COX

Attorney General

State of Alaska

LIZ MURRILL

Attorney General

State of Louisiana

TIM GRIFFIN

Attorney General

State of Arkansas

LYNN FITCH

Attorney General

State of Mississippi

JAMES UTHMEIER

Attorney General

State of Florida

ANDREW BAILEY

Attorney General

State of Missouri

RAÚL LABRADOR

Attorney General

State of Idaho

AUSTIN KNUDSEN

Attorney General

State of Montana

THEODORE E. ROKITA

Attorney General

State of Indiana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

BRENNA BIRD

Attorney General

State of Iowa

DREW WRIGLEY

Attorney General

State of North Dakota

24

DAVE YOST

Attorney General

State of Ohio

GENTNER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas