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.
Supreme Court briefAug 7, 2025
Ask Donna
What actually matters in this document.
Text
No. 25-24
In the Supreme Court of the United States
JOSHUA CLAY MCCOY, ET AL.,
Petitioners,
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 18 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
DARIUS J. IRAJ*
Fellow
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 ...................................... 21
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) ....................................... 14
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
Gazzola v. Hochul,
88 F.4th 186 (2d Cir. 2023) ............................................. 5
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) ............................................. 6
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
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
Quarles v. United States,
587 U.S. 645 (2019) ....................................................... 20
IV
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) ............................... 5, 7, 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) ............................... 10, 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
United States v. Miller,
307 U.S. 174 (1939) ....................................................... 17
V
United States v. Rahimi,
602 U.S. 680 (2024) ...................... 1, 2, 8, 9, 10, 11, 14, 15
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(b)(1)....................................................... 2, 21
Militia Act of 1792, 1 Stat. 271 (1792) ............................... 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
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
VI
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 (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)........................... 22
Leo Bernabei,
Bruen As Heller: Text, History, and
Tradition in the Lower Courts,
92 FORDHAM L. REV. ONLINE 1 (2024) ........................ 1
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
VII
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, CENSUS.GOV (May 30,
2024), https://tinyurl.com/mr5pk4f6 ........................... 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
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) ........................................... 19
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
VIII
S. CT. RULE 37.2 ................................................................... 1
S. Rep. No. 90-1097,
1968 U.S.C.C.A.N. 2112
(statement of Sen. Tydings) ........................................ 11
United States Population by Age and Sex,
U.S. CENSUS BUREAU,
https://tinyurl.com/2yu6av23
(last visited July 17, 2025) ............................................ 21
WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF
ENGLAND
(Oxford, Clarendon Press 1765) .................................. 11
INTRODUCTION AND INTERESTS
OF AMICI CURIAE1
Watching the Second Amendment get applied in lower
courts might induce a profound sense of whiplash.
It started about two decades ago. District of Columbia
v. Heller, 554 U.S. 570 (2008), 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 to the right,
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 about a year ago, clarifying that
judicial policymaking in the Second Amendment space is
dead—but Second Amendment law also isn’t “trapped in
amber.” United States v. Rahimi, 602 U.S. 680, 691
(2024).
Still, judging from the decision at issue here, it might
require another dose or two of clarity from this Court
Under Supreme Court Rule 37.2(a), amici timely notified counsel
of record of their intent to file this brief.
1
2
before the treatment takes hold. A divided Fourth Circuit
panel upheld a federal statute banning the sale of
handguns to 18- to 20-year-olds. 18 U.S.C. § 922(b)(1). In
doing so, the court veered into some of that old forbidden
territory. Its historical analysis was suspect. Its opinion
carries a flavor of policy. And a de facto categorical ban
was said to be 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.
The Court should grant the petition. 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. With another gentle reminder from this
Court, the sense of whiplash below might finally begin to
subside.
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.”
II. Lower courts have also stretched too far in their
hunt for historical analogues. Here, the Fourth Circuit
looked to non-firearms-related legal principles to justify
firearms regulation. The Court has demanded a closer fit
3
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) permeated
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. The Court
should grant the petition and hold that 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
the right to purchase them. This case is one example. The
Court should grant the petition to rectify that mistake.
4
A. The decision below shows how a misguided
separation can play out. The majority acknowledged 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.17a. 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.17a.
Instead, the majority thought, the young militiaman
might just borrow a gun from his parents. Pet.App.17a;
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”).
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
5
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’
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]
6
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 recently 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 be expected to possess one. As the Fourth
Circuit once recognized itself, “other options are not
always readily 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
7
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, 48283 (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.36a (Quattlebaum, J., dissenting).
The Second Amendment right becomes too conditional to
be meaningful. Reese, 127 F.4th at 590. Governments are
empowered to undermine “the most fundamental
8
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. When the historical
evidence confirms that people—here, young adults—have
the right to possess arms, they should also enjoy the
concomitant right to purchase those arms.
II.
Some Lower Courts Are Improperly Using NonFirearms Regulations As Historical Support
For Modern Firearms Restrictions.
The Fourth Circuit majority 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
tried to draw an analogy to a legal concept that’s not a
firearm regulation at all, let alone an analogous one.
The Fourth Circuit relied on the infancy doctrine,
which allowed individuals under 21 to void most contracts.
Pet.App.10a. 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.12a. Without confirmed evidence, the majority
9
found that this risk of refusal may have effectively
precluded infants from buying firearms. Pet.App.12a; 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. Framing history and tradition around
generalized notions would “allow a [purportedly] specific
tradition to swallow the general scope of the Second
Amendment right.” United States v. Garcia, 115 F.4th
1002, 1020 (9th Cir. 2024) (VanDyke, J., dissental); see,
e.g., Rahimi, 602 U.S. at 701-702 (rejecting an argument
that “[ir]responsible” persons could be disarmed).
11
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
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. That prevents mushy norms or illdefined principles from erasing 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.
12
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
“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
embraced interest-balancing.
In a slippery slope
argument (further developed in a separate concurrence),
the court declared any argument for young-adult rights
“sweeping,” “unlimited,” and not based on “any
13
reasonable interpretation of the Constitution.”
Pet.App.20a.
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.20a. And it emphasized that many
places had adopted such laws in the modern era, so the
court would not be striking down an “outlier.”
Pet.App.20a.
Instead, the majority declared itself
unwilling to upset a “legislative compromise.”
Pet.App.21a; 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.20a (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
14
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
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).
15
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
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
16
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
“[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 held a
Minnesota age-based carry ban was unenforceable 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
17
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
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. And they’ve split evenly on whether, after
applying the current framework, these laws violate the
Second Amendment.
B. The Answer Is Clear.
The Court should resolve this split by confirming that
young adults between the ages of 18 to 21 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
18
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.” Pet.App.160a. So founding-era law didn’t
restrict firearm ownership for 18- to 20-year-olds. It
compelled it—reflecting the understanding of the right at
the time.
It’s true that some States enacted militia laws raising
the minimum age to 21 before the Second Amendment was
ratified. But all those States later reversed themselves.
Pet.App.157a-160a (collecting statutes). And nineteenthcentury 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,
19
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
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.13a
(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
20
been ‘necessaries.’” Pet.App.45a 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.”
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”); Pet.App.161a, 165a.
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.”).
So the majority below was wrong to assume that
Congress passed the Militia Act while assuming that 18to 20-year-olds would have no direct power to comply with
its weapon requirement.
21
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
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 more than thirteen million
younger Americans. See United States Population by
Age and Sex, U.S. CENSUS BUREAU, https://tinyurl.com/
2yu6av23 (last visited July 17, 2025). The lower court’s
ruling prohibits the nationwide class of law-abiding 18- to
20-year-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.
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
22
aspects of this core liberty through Congressional and
state overreach. 3 JOSEPH STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES § 1890
(Boston, Hilliard, Gray, & Co. 1833).
There’s no good reason to wait any longer. The issue
has percolated, producing several thoughtful opinions
(including three separate opinions in this very case). It’s
unlikely that further development of these questions will
offer anything helpful. And this vehicle is a clean one to
tackle the question; the arguments are preserved, the
plaintiffs have standing, and no procedural obstacles are
apparent from the record.
Even the Government
concedes that Plaintiffs “are all otherwise qualified to
purchase handguns” were it not for their ages.
Pet.App.62a-63a. 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
DARIUS J. IRAJ*
Fellow
*admitted in Pennsylvania;
practicing under supervision of West
Virginia attorneys
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
TREG TAYLOR
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
ALAN WILSON
Attorney General
State of South Carolina
MARTY JACKLEY
Attorney General
State of South Dakota
KEN PAXTON
Attorney General
State of Texas
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.