Amicus Curiae Brief — Joshua Clay McCoy, Individually and on Behalf of All Others Similarly Situated as a Class, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, et al.

No. 25-24

In the

Supreme Court of the United States

JOSHUA CLAY MCCOY, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED AS A CLASS, et al.,

Petitioners,

v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS,

AND EXPLOSIVES, et al.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF NATIONAL ASSOCIATION

FOR GUN RIGHTS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Barry K. A rrington

Counsel of Record

A rrington Law Firm

4195 Wadsworth Boulevard

Wheat Ridge, CO 80033

(303) 205-7870

barry@arringtonpc.com

Counsel for Amicus Curiae

131375

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Circuit Court’s Contractual Incapacity

Argument Proves Too Much . . . . . . . . . . . . . . . . . 2

B. There Were Zero Founding-Era Laws

Prohibiting 18-to-20 -Year-Olds From

Purchasing Firearms . . . . . . . . . . . . . . . . . . . . . . 6

C. L a t e r H i s t o r y C a n L i q u i d a t e a n

Understanding of the Text; it Cannot

Change the Text . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. T h e G o v e r n m e n t M a y No t S t r i p

Disfavored Demographic Groups of their

Constitutional Rights . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Adkins v. Children’s Hosp. of the D.C.,

261 U.S. 525 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fraser v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

672 F. Supp. 3d 118 (E.D. Va. 2023) . . . . . . . . . . . . . . 6

McCoy v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

140 F.4th 568 (4th Cir. 2025) . . . . . . . . . . . . . 2, 6, 8, 10

Townsend v. Townsend,

708 S.W.2d 646 (Mo. 1986) . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Rahimi,

602 U.S. 680 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

W. Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. Const. amend. II . . . . . . . . . . . . . . . . . . . 2, 5, 6, 9, 10

iii

Cited Authorities

Page

U.S. Const. amend. XIX . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

U.S. Const. amend. XXVI . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statutes and Other Authorities

23 Pa. Stat. and Cons. Stat. Ann. § 5101(a) . . . . . . . . . . . 5

1 Annals of Cong. app. 2145-46

(Joseph Gales ed., 1834) . . . . . . . . . . . . . . . . . . . . . . . . 7

Restatement (Second) of Contracts § 14

(Am. Law Inst. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Second Militia Act of 1792 § 1, 1 Stat. 271 (1792) . . . . . . 6

41 Am. Jur. 2d Husband and Wife § 2 . . . . . . . . . . . . . . . 4

1 William Blackstone, Commentaries . . . . . . . . . . . . . 3, 5

Bureau of Justice Statistics, Race and Ethnicity

of Violent Crime Offenders and Arrestees,

2018 (available at https://bit.ly/48PyzjN) . . . . . . . . . 11

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) . . . . . . . . . 3

iv

Cited Authorities

Page

John Edward Murray, Jr., Murray on Contracts,

Loc. 2502 LexisNexis, (5th ed. 2011) . . . . . . . . . . . . . 5

Hon. Kevin C. Newsom, The Road to Tradition

or Perdition? An Originalist Critique of

Traditionalism in Constitutional Interpretation,

47 Harv. J.L. & Pub. Pol’y 745 (2024) . . . . . . . . . . . . . 9

Sentiments on a Peace Establishment (May 2,

1783), reprinted in 26 The Writings of George

Washington 389 (John C. Fitzpatrick, ed. 1938) . . . . 7

Robert J. Spitzer, The Second Generation of Second

Amendment Law & Policy: Gun Law History

in The United States and Second Amendment

Rights, 80 Law & Contemp. Prob. 55 (2017) . . . . . . . 6

1

INTEREST OF AMICUS

The right to keep and bear arms is a fundamental right

that existed prior to the Constitution. The right is not in

any sense granted by the Constitution. Nor does it depend

on the Constitution for its existence. Rather, the Second

Amendment declares that the pre-existing “right of the

people to keep and bear Arms shall not be infringed.”

The National Association for Gun Rights (“NAGR”)1 is a

nonprofit membership and donor-supported organization

with hundreds of thousands of members nationwide. The

sole reason for NAGR’s existence is to defend citizens’

right to keep and bear arms. NAGR has a strong interest

in this case because the guidance the Court will provide

in its resolution of this matter will have a major impact

on its ongoing litigation efforts in support of citizens’

fundamental right to keep and bear arms.

SUMMARY OF ARGUMENT

The circuit court’s contractual capacity argument

proves too much. Yes, 18-to-20-year-olds lacked contractual

capacity in the Founding era. But that cannot possibly be

a valid reason for concluding they do not have Second

Amendment rights today. Otherwise, one would have

to conclude that married women do not have Second

Amendment rights.

1. No counsel for a party authored this brief in whole or

in part, and no entity or person, other than amici curiae, their

members, and their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief. Amici

curiae provided timely notice to the parties of their intention to

file this brief.

2

There were absolutely zero regulations in the

Founding era that are remotely analogous to the

challenged statute. It does no good to address this deficit

by pointing to late nineteenth-century laws, because such

late-in-time contrary evidence cannot be used to establish

a Founding-era tradition when there was none. Finally,

it is unconstitutional for the government to single out

disfavored demographic groups and deprive them of their

Second Amendment rights based merely on statistical

disparities.

ARGUMENT

A. The Circuit Court’s Contractual Incapacity

Argument Proves Too Much

The circuit court held that 18-to-20-year-olds do not

have Second Amendment rights because they lacked the

contractual capacity to purchase firearms in the Founding

era. McCoy v. Bureau of Alcohol, Tobacco, Firearms

& Explosives, 140 F.4th 568, 575 (4th Cir. 2025). That

argument proves way too much, because it also proves

that married women have no Second Amendment rights.

As Professor Cornell explains, in the Founding era,

married women did not have contractual capacity:

In many respects, the situation of minors

under twenty-one resembled that of married

women under coverture. Under the doctrine

of coverture, a married woman ceased to exist

as a legal entity, and her entire legal persona

was subsumed within her husband’s authority.

Sir William Blackstone described the legal

meaning of coverture as follows:

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By marriage, the husband and wife

are one person in law: that is, the very

being or legal existence of the woman is

suspended during the marriage, or at

least is incorporated and consolidated

into that of the husband: under whose

w ing, protection, and cover, she

performs every thing; and is therefore

called in our law-French a femecovert. . . . [1 William Blackstone,

Commentaries, 442]

An influential eighteenth-century English

treatise on the law of domestic relations noted

that the comparison between a feme covert

and a minor was frequently made by writers

on the law: “Feme Covert in our Books is often

compared to an Infant, both being persons being

disabled in the Law.” Given the irrefutable fact

that minors were legally “disabled” in the eyes

of the law, the claim that they might assert a

Second Amendment right against government

interference is just false.

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, 9 (2021)

(emphasis added).

Consider the last sentence of this block quotation.

Substitute “married women” for “minors” in that sentence

and one gets: “Given the irrefutable fact that married

women were legally ‘disabled’ in the eyes of the law,

the claim that they might assert a Second Amendment

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right against government interference is just false.” The

statement is now manifestly absurd.

Under the common law doctrine of coverture in effect

at the Founding, a married woman did not have the right to

contract for herself. 41 Am. Jur. 2d Husband and Wife § 2;

accord Townsend v. Townsend, 708 S.W.2d 646, 647 (Mo.

1986). This Court recognized that contractual disability for

married women crumbled under the principles embodied

in the fight for women’s suffrage that culminated in the

adoption of the Nineteenth Amendment:

But the ancient inequality of the sexes,

otherwise than physical, as suggested in the

Muller Case (208 U. S. 421, 28 Sup. Ct. 327,

52 L. Ed. 551, 13 Ann. Cas. 957) has continued

‘with diminishing intensity.’ In view of the

great—not to say revolutionary—changes

which have taken place since that utterance,

in the contractual, political, and civil status

of women, culminating in the Nineteenth

Amendment, it is not unreasonable to say that

these differences have now come almost, if not

quite, to the vanishing point.

Adkins v. Children’s Hosp. of the D.C., 261 U.S. 525, 553

(1923), overruled on other grounds by W. Coast Hotel Co.

v. Parrish, 300 U.S. 379 (1937) (emphasis added).

Under common law contract doctrine in effect at the

time of the Founding, an 18-to-20-year-old person also

did not have the right to contract for himself or herself.

5

1 William Blackstone, Commentaries, *453. 2 In contract

matters, the Twenty-Sixth Amendment had the same

effect for young adults that the Nineteenth Amendment

had for married women. Professor Murray describes this

effect as follows: “The twenty-sixth amendment to the U.S.

Constitution lowered the voting age to 18. This prompted

almost all of the states to enact statutes reducing the age

of majority for contracting to 18.” Murray, John Edward,

Jr., Murray on Contracts, Loc. 2502, n. 216 LexisNexis,

(5th ed. 2011), Kindle Edition. 3

In summary, if contractual capacity in the Founding

era is the touchstone for determining whether a class

of people has Second Amendment rights, then married

women do not have Second Amendment rights. That is

obviously not the case. Therefore, an elementary modus

tollens deduction ineluctably leads to the conclusion that

contractual capacity in the Founding era cannot be the

touchstone for determining whether a class of people has

Second Amendment rights.

2. The common law now recognizes 18 as the age of contractual

capacity. Restatement (Second) of Contracts § 14 (Am. Law Inst.

1981) (“Unless a statute provides otherwise, a natural person has

the capacity to incur only voidable contractual duties until the

beginning of the day before the person’s eighteenth birthday.”).

3. Professor Murray cites Pennsylvania law, specifically, 23

Pa. Stat. and Cons. Stat. Ann. § 5101(a), to illustrate this point.

That statute states: “Any individual 18 years of age and older

shall have the right to enter into binding and legally enforceable

contracts and the defense of minority shall not be available to

such individuals.”

6

B. There Were Zero Founding-Era Laws Prohibiting

18-to-20-Year-Olds From Purchasing Firearms

Prior to 1791, there were zero laws prohibiting the

possession or purchase of firearms by 18-to-20-year-olds.

See Robert J. Spitzer, The Second Generation of Second

Amendment Law & Policy: Gun Law History in The

United States and Second Amendment Rights, 80 Law

& Contemp. Prob. 55, 59 (2017). In stark contrast to the

complete absence of laws prohibiting 18-to-20-year-olds

from purchasing or possessing firearms in the Founding

era, stand the early militia laws that required men 18

years of age and older to obtain firearms. Congress passed

the Second Militia Act on May 8, 1792, a mere five months

after the Second Amendment was ratified on December

15, 1791. The Second Militia Act stated that “every free

able-bodied white male citizen of the respective states,

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

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

herein exempted) shall severally and respectively be

enrolled in the militia[.]” Second Militia Act of 1792 § 1, 1

Stat. 271 (1792) (emphasis added). The Act also required

each of these 18-year-old militia members to “provide

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

rifle[.]” Id. § 1. Shortly thereafter, every state revised its

existing militia laws to conform with the federal statute,

adopted a militia age of 18, and required militia members

to arm themselves.4

4. The state militia statutes are collected at Fraser v. Bureau

of Alcohol, Tobacco, Firearms & Explosives, 672 F. Supp. 3d 118,

140 n. 31 (E.D. Va. 2023), rev’d and remanded sub nom. McCoy v.

Bureau of Alcohol, Tobacco, Firearms & Explosives, 140 F.4th

568 (4th Cir. 2025).

7

The Founders specifically intended for 18-to-20year-olds to be armed. In 1790, Secretary of War Henry

Knox submitted a militia plan to Congress providing that

“all men of the legal military age should be armed,” and

that “[t]he period of life in which military service shall

be required of the citizens of the United States [was] to

commence at eighteen.” 1 Annals of Cong. app. 2145-46

(Joseph Gales ed., 1834).

There is no evidence that the Founders had qualms

about arming 18-to-20-year-olds. Indeed, just the opposite

is true. Representative James Jackson asserted “that

from eighteen to twenty-one was found to be the best age

to make soldiers of.” Id. at 1860 (emphasis added).

In an enclosure to a 1783 letter to Alexander Hamilton,

George Washington (who later signed the Milita Act into

law) wrote that “the Citizens of America . . . from 18 to

50 Years of Age should be borne on the Militia Rolls” and

“so far accustomed to the use of [Arms] that the Total

strength of the Country might be called forth at Short

Notice on any very interesting Emergency.” Sentiments on

a Peace Establishment (May 2, 1783), reprinted in 26 The

Writings of George Washington 389 (John C. Fitzpatrick,

ed. 1938) (emphasis added).

In summary, there is simply no Founding-era tradition

of regulations prohibiting 18-to-20-year-olds from

acquiring firearms. The exact opposite is true. The laws

of the time unanimously imposed on them an affirmative

duty to do exactly that.

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C. Later History Can Liquidate an Understanding of

the Text; it Cannot Change the Text

The circuit court notes that in the second half of

the nineteenth century several states adopted statutes

prohibiting 18-to-20-year-olds from acquiring certain

firearms. McCoy, 140 F.4th at 578. But these later laws are

irrelevant to the Constitutional analysis as demonstrated

by Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464

(2020). In that case, the Court noted that 30 states adopted

no-aid provisions in the second half of the nineteenth

century. Id. at 482. The Court held that these late-adopted

laws were simply irrelevant to the meaning of the First

Amendment. Id. This is consistent with Bruen’s approach

to post-ratification history. Nineteenth-century evidence

may be relevant to determining the public understanding

of a provision of the Bill of Rights as of the time it was

ratified. Bruen, 597 U.S. at 35. Also, evidence that a

governmental practice has been open, widespread, and

unchallenged since the early days of the Republic can

serve to “liquidate” the meaning of a phrase in the

Constitution. Id. at 35-36. Nevertheless, as in Espinoza,

late nineteenth-century evidence cannot provide much

insight into the meaning of a provision of the Bill of Rights

“when it contradicts earlier evidence.” Id. at 66.

In summary, if the text is vague and Founding-era

history is elusive or inconclusive, post-ratification history

may be important in interpreting the constitutional

text. United States v. Rahimi, 602 U.S. 680, 723 (2024)

(Kavanaugh, J., concurring). By the same token, if

the Founding-era history supporting a particular

interpretation of an enumerated right is robust, postratification history that contradicts that interpretation

9

is simply irrelevant. Bruen, 597 U.S. at 66, n. 28 (Late

evidence “does not provide insight into the meaning

of the Second Amendment when it contradicts earlier

evidence.”). See also Rahimi, 602 U.S. at 738 (“evidence of

‘tradition’ unmoored from original meaning is not binding

law.”) (Barrett, J., concurring).

Justice Barrett’s concurrence in Rahimi should

be emphasized, because, as Judge Newsom recently

observed, the Court should be wary of attempts to change

the text by means of an ersatz “traditionalism.” He wrote:

My first fear is that traditionalism gives off an

originalist “vibe” without having any legitimate

claim to the originalist mantle. It seems old

and dusty—and thus objective and reliable.

And maybe it is indeed all those things. But

let’s be clear: it’s not originalism. Remember,

originalism is fundamentally a text-based

interpretive method. We originalists say

that any particular constitutional provision

should be interpreted in accordance with its

common, ordinary meaning at the time it was

adopted and ratified. If we really mean that,

then by definition, it seems to me, evidence

that significantly post-dates that provision’s

adoption isn’t just second-best—it’s positively

irrelevant.

Hon. Kevin C. Newsom, The Road to Tradition or

Perdition? An Originalist Critique of Traditionalism in

Constitutional Interpretation, 47 Harv. J.L. & Pub. Pol’y

745, 754 (2024) (emphasis in the original).

10

D. The Government May Not Strip Disfavored

Demographic Groups of their Constitutional Rights

The circuit court held that the “why” of the subject

statute is to impose burdens on the Second Amendment

rights of individuals who lack “judgment and discretion.”

McCoy, 140 F.4th at 577. In other words, the court upheld

the statute because it makes it more difficult for people

who are not responsible to acquire handguns. But in

Rahimi, this Court held that the government may not

disarm a person simply because it believes he is not

responsible. 602 U.S. at 701.

To be sure, Rahimi did not suggest that the Second

Amendment prohibits the enactment of laws banning

the possession of guns by categories of persons thought

by a legislature to present a special danger of misuse.

602 U.S. at 698. But surely the Court meant that the

government has the power to disarm groups of people all

of whom pose a special danger of misuse (e.g., people who

have been convicted of felonies involving gun violence).

Rahimi did not mean that the government may disarm any

demographic group that is statistically overrepresented

among those who commit gun violence even if there is no

evidence that the overwhelming majority of people in that

group are a special risk. Indeed, as Judge Quattlebaum

noted, this is a constitutionally fraught road down

which to trek. McCoy, 140 F.4th at 587 (Quattlebaum, J.,

dissenting). By the same logic, the government could place

discriminatory limitations on African Americans hoping

to purchase firearms. 5 Id. Such limitations would be

5. Department of Justice statistics indicate that African

Americans are overrepresented among persons arrested for

11

obviously unconstitutional regardless of how effective the

government claims they might be in stopping irresponsible

people from acquiring handguns. Any argument that

entails such a facially absurd result cannot be correct.

CONCLUSION

For the reasons set forth herein, NAGR respectfully

requests the Court to grant the petition for writ of

certiorari.

Respectfully submitted,

Barry K. A rrington

Counsel of Record

A rrington Law Firm

4195 Wadsworth Boulevard

Wheat Ridge, CO 80033

(303) 205-7870

barry@arringtonpc.com

Counsel for Amicus Curiae

August 2025

violent crimes. Bureau of Justice Statistics, Race and Ethnicity

of Violent Crime Offenders and Arrestees, 2018 (available at

https://bit.ly/48PyzjN).