Respondents 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 briefOct 8, 2025

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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

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

MICHAEL RAAB

STEVEN H. HAZEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 922(b)(1), a federal statute

that restricts federal firearms licensees’ sale of handguns to persons who are less than 21 years old, violates

the Second Amendment rights of 18-to-20-year-olds.

2. Whether petitioners’ motion for class certification, which was filed after the district court granted

them summary judgment, was untimely.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

Discussion ........................................................................................ 4

Conclusion ...................................................................................... 12

TABLE OF AUTHORITIES

Cases:

American Pipe & Construction Co. v. Utah,

414 U.S. 538 (1974) ........................................................... 9, 11

Califano v. Yamasaki, 442 U.S. 682 (1979) ...................... 8, 10

Chafin v. Chafin, 568 U.S. 165 (2013) ..................................... 5

Costello v. BeavEx, Inc., 810 F.3d 1045

(7th Cir. 2016), cert. denied, 582 U.S. 929 (2017) ............... 9

Gooch v. Life Investor Insurance Co.,

672 F.3d 402 (6th Cir. 2012) ................................................ 11

Hirschfeld v. ATF, 14 F.4th 322 (2021),

cert. denied, 142 S. Ct. 1447 (2022) ...................................... 5

Sosna v. Iowa, 419 U.S. 393 (1975) ......................................... 6

Constitution, statutes, and rules:

U.S. Const.:

Art. III, § 2, Cl. 1 ................................................................. 5

Amend. II ..................................................................... 2-5, 7

18 U.S.C. 922(b)(1)................................................... 2-5, 7, 8, 10

18 U.S.C. 922(g)(3)..................................................................... 7

18 U.S.C. 922(t)(1)(C) ................................................................ 2

18 U.S.C. 922(x) ......................................................................... 2

28 U.S.C. 530D ........................................................................... 5

(III)

Rules—Continued:

Page

Fed. R. Civ. P.:

Rule 23 ............................................................................ 9, 11

Rule 23(b)(2) ...................................................................... 11

Rule 23(c)(1) (1966) ............................................................. 9

Rule 23(c)(1)(A) (2003)........................................................ 9

Rule 23(c)(1)(A) ......................................................... 3, 9-11

Rule 23 advisory committee’s note

(2003 Amendment) ........................................................ 9

Sup. Ct. R. 45.2 .......................................................................... 6

Miscellaneous:

Letter from D. John Sauer, Solicitor Gen.,

to Mike Johnson, Speaker, U.S. House of

Representatives (July 25, 2025),

https://www.justice.gov/oip/media/1410951/dl?inline ........ 5

6 William B. Rubenstein, Newberg and Rubenstein

on Class Actions (6th ed. 2022) ........................................ 8, 9

In the Supreme Court of the United States

No. 25-24

JOSHUA CLAY MCCOY, INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED AS A CLASS,

ET AL., PETITIONERS

BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-60a)

is reported at 140 F.4th 568. A memorandum opinion of

the district court (Pet. App. 61a-90a) is available at 2023

WL 5616011. Prior memorandum opinions of the district court (Pet. App. 91a-116a, 117a-182a) are reported

at 689 F. Supp. 3d 203 and 672 F. Supp. 3d 118.

JURISDICTION

The judgment of the court of appeals was entered on

June 18, 2025. The petition for a writ of certiorari was

filed on July 3, 2025. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. A federal statute, 18 U.S.C. 922(b)(1), provides

that a federal firearms licensee may not sell a firearm

(other than a shotgun or rifle) to “any individual who

the licensee knows or has reasonable cause to believe is

less than twenty-one years of age.” Section 922(b)(1)

regulates only federal firearms licensees’ direct sales to

individuals. It does not regulate the possession of firearms or other types of transfers (such as private sales

or inheritances). It also does not prevent a parent or

guardian from buying a firearm on behalf of a person

under the age of 21.

Congress has enacted additional age-based firearms

regulations that are not at issue here. For example,

Congress has limited the circumstances under which

persons under the age of 18 may possess handguns. See

18 U.S.C. 922(x). Congress also has required enhanced

background checks for firearms purchasers under the

age of 21. See 18 U.S.C. 922(t)(1)(C). Those provisions

have not been challenged in this litigation.

2. In 2022, four 18-to-20-year-old individuals (three

of whom are petitioners here) filed this suit in the U.S.

District Court for the Eastern District of Virginia,

claiming that Section 922(b)(1) violates the Second

Amendment as applied to 18-to-20-year-old people. See

Pet. App. 118a-119a. In 2023, the court added a fifth

person (who is also a petitioner here) as a plaintiff. See

D. Ct. Doc. 72 (Aug. 24, 2023).

The district court granted summary judgment to petitioners. Pet. App. 117a-182a. It determined that 18to-20-year-olds are among the people protected by the

Second Amendment, see id. at 138a-168a, and that the

government had failed to provide an adequate historical

justification for restricting the sale of firearms to those

individuals, see id. at 168a-173a.

After the district court granted summary judgment,

petitioners moved for class certification. Pet. App. 63a64a. The court granted the motion and certified a nationwide class of 18-to-20-year-old citizens. Id. at 89a.

3. The Fourth Circuit reversed. Pet. App. 1a-60a.

The Fourth Circuit held that Section 922(b)(1) complies with the Second Amendment. See Pet. App. 7a20a. The court assumed without deciding that 18-to-20year-olds are among the people protected by the Second

Amendment. See id. at 10a. It then determined that

Section 922(b)(1) is consistent with the United States’

tradition of firearm regulation. See ibid. The court

stated that Section 922(b)(1) is analogous to Foundingera common-law rules that prevented individuals under

the age of 21 from forming contracts. See id. at 11a15a. The court added that, during the 19th century, “at

least twenty jurisdictions enacted laws criminalizing

the sale of firearms, often handguns specifically, to individuals under the age of 21.” Id. at 18a.

The court of appeals also reversed the grant of class

certification. See Pet. App. 6a n.1. It concluded that,

because petitioners had waited until after the district

court had ruled on the merits before seeking class certification, “the district court did not certify the class at

‘an early practicable time,’ ” as required by Federal

Rule of Civil Procedure 23(c)(1)(A). Pet. App. 7a n.1 (citation omitted).

Judge Heytens issued a concurring opinion. Pet.

App. 23a-26a. He argued that petitioners’ arguments

prove too much, because they would show that even

those younger than the age of 18 would have a constitutional right to possess firearms. Id. at 23a. Judge Hey-

tens described that outcome as a “startling result that

[petitioners] seek to obscure and for which they offer no

defense.” Ibid.

Judge Quattlebaum dissented. Pet. App. 27a-60a.

He concluded that Section 922(b)(1) violates the Second

Amendment because “the government has not shown a

relevant principle of restricting 18-to-20-year-olds’ access to self-defense weapons at the time of the founding.” Id. at 58a. He stated that the district court’s decision to certify a class after granting summary judgment to petitioners gave him “pause,” but concluded

that the court had not abused its discretion in the circumstances of this case. Id. at 59a.

DISCUSSION

Petitioners renew (Pet. 10-32) their contention that

Section 922(b)(1) violates the Second Amendment as applied to 18-to-20-year-olds. But because petitioners

have either already turned 21 years old or will do so

soon, this case is likely to become moot before the Court

has an opportunity to decide it. In any event, this Court

recently granted a petition for a writ of certiorari in

Wolford v. Lopez, No. 24-1046 (Oct. 3, 2025), and is considering the government’s petition in United States v.

Hemani, No. 24-1234 (filed June 2, 2025)—both Second

Amendment cases that could shed light on the proper

resolution of this case. Moreover, two other pending

petitions for writs of certiorari—West Virginia Citizens

Defense League, Inc. v. ATF (WVCDL), No. 25-132

(filed July 31, 2025), and NRA, Inc. v. Glass, No. 241185 (filed May 16, 2025)—raise questions concerning

the Second Amendment rights of 18-to-20-year-olds but

do not suffer from the same vehicle problems as this

case. This Court should accordingly hold the petition

pending the resolution of those cases.

Petitioners also contend (Pet. 32-35) that the district

court did not abuse its discretion in certifying a class

after granting summary judgment. The court of appeals correctly rejected that contention, and its decision

on that issue does not conflict with any decision of this

Court or any other court of appeals. Further review is

unwarranted.

1. Petitioners first argue (Pet. 10-32) that Section

922(b)(1) violates the Second Amendment as applied to

18-to-20-year-olds. But this case is likely to become

moot before the Court has an opportunity to decide it,

making it a poor vehicle for addressing petitioners’

claim. The Court should therefore hold rather than

grant the petition for a writ of certiorari.

a. Article III of the Constitution confines the federal

courts to exercising “judicial Power,” which extends

only to “Cases” and “Controversies.” U.S. Const. Art.

III, § 2, Cl. 1. There is no case or controversy, and a

suit becomes moot, “when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 568 U.S. 165,

172 (2013) (citation omitted). The Fourth Circuit accordingly held that a previous suit challenging Section

922(b)(1) had become moot because the plaintiffs had all

turned 21 years old while the case was on appeal. See

Hirschfeld v. ATF, 14 F.4th 322, 326-327 (2021). When

the Solicitor General declined to file a petition for a writ

of certiorari in Reese, he explained to Congress in a report under 28 U.S.C. 530D that Reese raised “potential

mootness” issues because “[t]wo of the individual plaintiffs ha[d] turned 21, and a third [could] do so by the

time [this] Court rules.” Letter from D. John Sauer,

Solicitor General, to Mike Johnson, Speaker, U.S.

House of Representatives (July 25, 2025). 1

This suit, too, is likely to become moot before this

Court decides it. The suit was brought by four plaintiffs: Corey Fraser (who is not a petitioner here) and

petitioners Joshua McCoy, Tyler McGrath, and Ian

Shackley. See Am. Compl. 1. An amended complaint

filed on November 16, 2022, alleges that Corey Fraser

was 20 years old and that McCoy, McGrath, and Shackley were 19 years old. See id. ¶¶ 41-44. Corey Fraser

thus turned 21 years old no later than November 16,

2023, and the other three plaintiffs turned 21 years old

no later than November 16, 2024.

The district court later added a fifth plaintiff, petitioner Justin Fraser. See D. Ct. Doc. 72. Petitioners

have represented that Justin Fraser was born on April

27, 2005, see D. Ct. Doc. 65, at 2, meaning that he will

turn 21 on April 27, 2026. Because this Court ordinarily

issues its judgment 32 days after it issues its opinion,

see Sup. Ct. R. 45.2, it likely would need to issue its

opinion by March 26, 2026, to avoid mootness. That

deadline would needlessly force this Court to receive

briefing, hold argument, and issue an opinion on a compressed schedule.

To be sure, the district court certified a class action,

and class members’ claims do not necessarily become

moot when the class representatives’ claims do so. See

Sosna v. Iowa, 419 U.S. 393, 399-400 (1975). The court

of appeals, however, reversed the grant of class certification. See Pet. App. 6a n.1. This Court accordingly

would need, at a minimum, to consider the propriety of

class certification before it could rely on the class members’ claims as a basis for avoiding mootness. Given

https://www.justice.gov/oip/media/1410951/dl?inline

those threshold procedural obstacles, this case is a poor

vehicle for resolving the constitutionality of Section

922(b)(1).

b. This Court recently granted review in Wolford,

which presents the question whether a State may make

it unlawful for concealed-carry license-holders to carry

firearms on private property open to the public without

the property owner’s express authorization. See Pet. at

i-ii, Wolford, supra (No. 24-1046). As the government

noted in its certiorari-stage amicus brief in that case,

the Court’s decision could “provide much-needed guidance” about the proper methodology for applying the

Second Amendment. U.S. Amicus Br. at 19, Wolford,

supra (No. 24-1046). That guidance could shed light on

the proper resolution of this case.

This Court also is currently considering the government’s petition for a writ of certiorari in Hemani, which

presents the question whether 18 U.S.C. 922(g)(3), the

federal statute that prohibits the possession of firearms

by unlawful users of controlled substances, violates the

Second Amendment. See Pet. at I, Hemani, supra (No.

24-1234). Hemani, too, could provide valuable guidance

about the proper resolution of this case. Among other

things, Hemani provides an opportunity to clarify the

role of post-ratification history in applying the Second

Amendment. See id. at 14-16. That issue is pertinent

here because petitioner argues (Pet. 31) that the court

of appeals “departed” from “Founding-era tradition”

and accorded “outsized weight” to “post-Civil War state

laws,” “blur[ring] the distinction between incorporation

(which occurred in 1868) and the substantive meaning

of the right (rooted in 1791).”

Finally, this Court is currently considering petitions

for writs of certiorari in WVCDL (which, like this case,

concerns the constitutionality of Section 922(b)(1)) and

NRA (which concerns the constitutionality of a Florida

law that bans the sale of firearms to 18-to-20-year-olds).

See Pet. at i, WVCDL, supra (No. 25-132); Pet. at i,

NRA, supra (No. 24-1185). Those cases do not raise the

same mootness problems as this case because the lead

plaintiffs there are associations suing on behalf of their

members. The association in WVCDL has identified a

member who was 19 years old as of May 21, 2025; that

member will not turn 21 years old until after this Term.

See C.A. Doc. 86-1, at 2, Brown v. ATF, No. 23-2275 (4th

Cir. May 21, 2025) (motion to supplement record); Pet.

App. at 2a, WVCDL, supra (No. 25-132) (granting motion). Meanwhile, the association in NRA states that it

“has, as members, 18-to-20-year old Florida residents”

covered by Florida’s law and that it “stands ready to

provide evidence that it continues to have members subject to the ban at the Court’s request.” Pet. at 7, NRA,

supra (No. 24-1185).

This Court should therefore hold the petition for a

writ of certiorari in this case pending the resolution of

the petitions in Wolford, Hemani, WVCDL, and NRA.

It should then dispose of the petition as appropriate.

2. Petitioners separately argue (Pet. 32-35) that

their motion for class certification was timely. That

contention does not warrant this Court’s review.

Class actions represent “an exception to the usual

rule that litigation is conducted by and on behalf of the

individual named parties only.” Califano v. Yamasaki,

442 U.S. 682, 700-701 (1979). The “core idea” of a class

action is that both sides run the risk of an adverse classwide judgment. 6 William B. Rubenstein, Newberg and

Rubenstein on Class Actions § 18:14, at 39 (6th ed.

2022). If the class representatives prevail, “the class

members may take advantage of that victory,” but “if

the representatives lose, the defendant—having risked

a large class-wide loss—is entitled to take advantage of

its victory by foreclosing litigation by any class member

against it in the future.” Id. § 18:14, at 44.

A plaintiff therefore may not wait until after a court

has conclusively resolved the merits before deciding

whether to seek class certification. Otherwise, by delaying a motion for certification, a plaintiff could enable

absent class members “to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.” American Pipe & Construction Co. v. Utah, 414 U.S. 538, 547 (1974). That

practice, known as one-way intervention, “is ‘strikingly

unfair’ to the defendant.” Costello v. BeavEx, Inc., 810

F.3d 1045, 1057-1058 (7th Cir. 2016), cert. denied, 582

U.S. 929 (2017).

The Federal Rules of Civil Procedure forbid one-way

intervention. In 1966, Rule 23 was amended to require

that courts determine whether to certify a class “[a]s

soon as practicable after the commencement of an action.” Fed. R. Civ. P. 23(c)(1) (1966). That amendment

was “designed, in part, specifically” to “assure that

members of the class would be identified before trial on

the merits and would be bound by all subsequent orders

and judgments.” American Pipe, 414 U.S. at 547. In

2003, the relevant language was modified to require certification “[a]t an early practicable time.” Fed. R. Civ.

P. 23(c)(1)(A). But that change “d[id] not restore the

practice of ‘one-way intervention’ that was rejected by

the 1966 revision of Rule 23.” Fed. R. Civ. P. 23 advisory committee’s note (2003 Amendment). Rule 23 accordingly continues to forbid one-way intervention.

The district court’s certification of a class in this case

flouted that basic requirement. Although the complaint

indicated that petitioners sought to represent a class,

petitioners moved for summary judgment and litigated

that motion without requesting class certification. Only

after the court decided the merits in petitioners’ favor

did they move to certify a class. See Pet. App. 7a n.1.

Whatever leeway the phrase “[a]t an early practicable

time” may provide, Fed. R. Civ. P. 23(c)(1)(A), it does

not allow a plaintiff to withhold a motion for certification until after the district court has decided the merits.

That conclusion is reinforced by petitioners’ failure

to explain their delay. Petitioners have identified no

reason it would not have been “practicable,” Fed. R.

Civ. P. 23(c)(1)(A), for them to move for certification before the district court resolved the merits. To the extent petitioners withheld their motion out a concern

that a class-wide loss would have prevented further

challenges to Section 922(b)(1) across the country, that

concern simply confirms that petitioners sought to reap

the benefits of certification without accepting the risks.

The problems with petitioners’ approach are especially apparent given the nationwide scope of the class.

This Court has recognized that “nationwide class actions may have a detrimental effect by foreclosing adjudication by a number of different courts and judges”

and that it “often will be preferable to allow several

courts to pass on a given class claim in order to gain the

benefit of adjudication by different courts in different

factual contexts.” Yamasaki, 442 U.S. at 702. Those

considerations counsel against certification in this case,

where certification of a nationwide class would have

threatened to prevent most circuits from ever addressing the constitutional issues presented here.

Petitioners’ contrary arguments lack merit. Petitioners contend (Pet. 33) that the rule against one-way

intervention is “irrelevant in a Rule 23(b)(2) class action

such as this” because Rule 23(b)(2) does not provide objecting class members with the opportunity to opt out.

But the rule against one-way intervention rests on concerns about fairness to the defendant, not on concerns

about opt-out opportunities for class members. See

American Pipe, 414 U.S. at 547. Such fairness concerns

arise in Rule 23(b)(2) class actions no less than in other

types of class actions. Moreover, Rule 23’s requirement

of certification at “an early practicable time,” Fed. R.

Civ. P. 23(c)(1)(A), applies equally to all types of class

actions. That requirement cannot bear one meaning for

Rule 23(b)(2) class actions and another for other types

of class actions.

Contrary to petitioners’ suggestion (Pet. 33), the decision below does not conflict with the Sixth Circuit’s

decision in Gooch v. Life Investor Insurance Co., 672

F.3d 402 (2012). In Gooch, the Sixth Circuit held that

the rule against one-way intervention does not preclude

a court from granting class certification after granting

a preliminary injunction. Id. at 432. The court also

stated that “judicial economy” may sometimes counsel

in favor of deferring a ruling on class certification. Id.

at 433 (citation omitted). This case, by contrast, involves a grant of class certification after summary judgment, rather than after the entry of a preliminary injunction. And petitioners did not defer their motion for

class certification to promote judicial economy; rather,

they “strategically withheld their class certification motion to avoid being bound by an unfavorable ruling.”

Pet. App. 7a n.1.

Petitioners, in sum, have not shown that the decision

below creates a circuit conflict on the second question

presented. Nor have they shown that the issue otherwise warrants this Court’s review.

CONCLUSION

This Court should hold the petition for a writ of certiorari pending the disposition of Wolford v. Lopez, No.

24-1046, cert. granted (Oct. 6, 2025); United States v.

Hemani, No. 24-1234, petition for cert. pending (filed

June 2, 2025); West Virginia Citizens Defense League,

Inc. v. ATF, No. 25-132, petition for cert. pending (filed

July 31, 2025); and NRA, Inc. v. Glass, No. 24-1185, petition for cert. pending (filed May 16, 2025). The Court

should then dispose of the petition as appropriate.

Respectfully submitted.