Federal Judge Keeps Hawaii’s Under-21 Gun Ban in Place

If the Supreme Court justices like to see splits in the appellate courts before weighing in on an issue themselves, the Court is almost guaranteed to accept one or more cases dealing with young adults and their Second Amendment rights in the not-too-distant future. 

In late January the Fifth Circuit Court of Appeals ruled that the federal law barring adults under the age of 21 from purchasing a handgun from a federally licensed firearms retailer is a violation of the Second Amendment, concluding that “[u]ltimately, the text of the Second Amendment includes eighteen-to-twenty-year-old individuals among ‘the people’ whose right to keep and bear arms is protected. The federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban.” 

Last Friday, however, a federal judge in Hawaii kept the state’s statute in place that requires people to be 21 years or older to acquire, own, or essentially possess firearms at all, ruling that “dozens of Reconstruction Era laws that banned the transfer of handguns to people under 21 years old demonstrate that the State’s age restriction likely accords with the principles of the Nation’s historical firearm regulations.” 

U.S. District Judge Jill Otake’s decision denying a preliminary injunction in Pinales v. Lopez means that Hawaii’s 2A prohibition for young adults will remain in place while the litigation continues, but it’s also a signal as to how she’ll ultimately rule when the case is fully briefed and decided on the merits. 

The Ninth Circuit will eventually get ahold of Pinales, and there’s a pretty good chance that the appellate court will also uphold Hawaii’s under-21 gun ban. In 2022, a panel on the Ninth Circuit reversed a district court’s finding that California’s prohibition on gun sales to under-21s violates their Second Amendment rights and remanded the case back to district court for a do-over. The district court upheld the state law the second time around, so all indications are that the Ninth Circuit’s view is that young adults have no Second Amendment rights whatsoever. 

As Reason’s Jacob Sullum wrote a couple of weeks ago, after the Fifth Circuit released its own opinion stating that young adults do possess the same right to keep and bear arms as those of us over the age of 21, the issue is also the subject of dispute in at least one other appellate court.

The U.S. Court of Appeals for the 4th Circuit reached a similar conclusion in July 2021, when a divided panel ruled in Hirschfeld v. ATF that “our nation’s most cherished constitutional rights vest no later than 18,” adding that “the Second Amendment’s right to keep and bear arms is no different.” But the court vacated that decision two months later after the plaintiff turned 21.

In late January a separate Fourth Circuit panel heard oral arguments in two other cases involving young adults and their ability to keep and bear arms, and though the judges aren’t under any hard or fast deadline, a decision is likely to come down later this year. Given some of the other decisions we’ve seen from the Fourth Circuit in recent years, including upholding Maryland’s “assault weapon” ban and Handgun Qualification License, I expect the Fourth Circuit will ultimately conclude that the prohibition on under-21s purchasing or possessing handguns doesn’t violate their constitutional rights. 

With a split in the appellate courts, there’s all the more reason for the Supreme Court to step in and issue its own decision on gun bans for under-21s. Of course, the Court has had plenty of reasons to grant cert to an “assault weapon” ban case, and we’re all still waiting to see what SCOTUS will do with the Snope case, which has been heard in conference multiple times since it was first listed in mid-December. Here’s hoping the same thing doesn’t happen with these lawsuits challenging the prohibitions on young adults accessing their Second Amendment rights.