Fourth Circuit Upholds Ban on Gun Sales to Under-21s

A divided three-judge panel on the Fourth Circuit Court of Appeals declared on Wednesday that the federal prohibition on commercial sales of handguns to adults younger than 21 doesn’t violate their Second Amendment rights.

The 2-1 decision wasn’t a complete surprise given the makeup of the panel. Harvie Wilkinson, who wrote the majority opinion upholding Maryland’s ban on so-called assault weapons, was also the author of the opinion released on Wednesday, joined by a Joe Biden appointee. 

“From English common law to America’s founding and beyond, our regulatory tradition has permitted restrictions on the sale of firearms to individuals under the age of 21,” U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, wrote for the majority.

The ruling reverses the judgments of lower courts in Virginia and West Virginia granted to the group of six young men who filed the class action. The lower courts found the provision of the Omnibus Crime Control and Safe Streets Act of 1968 conflicted with the Second Amendment. 

But Wilkinson and U.S. Circuit Judge Toby Heytens agreed with the government’s argument that early state legislatures established an age qualification of 21 for citizens to exercise several rights, and that several states passed laws restricting handgun sales to young adults in the 19th century when handguns became more lethal and widespread. 

It doesn’t matter if some early state legislatures set the age of majority at 21 or 45. In 2025, 18-year-olds are considered members of the political community, and have full possession of every other individual civil right protected by the Constitution. 

Wilkinson relied on the infancy doctrine, a principle in English contract law that was adopted in America, which holds that individuals under 21 are considered infants and are therefore not bound by their contracts.

“Whether he faces criminal penalties or a law that transforms his sales into free giveaways, a rational merchant is highly unlikely to sell a gun to a minor,” Wilkinson wrote. “Both were motivated by a recognition that individuals under the age of 21 lack good judgment and reason.” 

The infancy doctrine still holds, but again, the bar (in the vast majority of contract cases and criminal law) has been lowered to 18. If a 19-year-old gets a credit card and then fails to make a payment, no court in the land is going to allow them to skate because they’re not yet 21. Similarly, an 18-year-old charged with a violent offense is going to be prosecuted in adult, not criminal court. 

In fact, an 18-year-old charged with merely possessing a firearm is going to be tried in adult court, so how on earth can the Fourth Circuit credibly claim that the same 18-year-old can be prohibited from purchasing a firearm because they’re considered a child in the eyes of the law?

U.S. Circuit Judge Marvin Quattlebaum dissented from the two-judge majority. Quattlebaum reasoned that the doctrine is not an appropriate analogy because, while the doctrine burdens the rights of sellers, the 1968 Act burdens the rights of purchasers. Quattlebaum wrote that the doctrine serves a paternalistic interest while the prohibition serves a public safety interest. 

“I recognize that to many, banning sales of handguns to those under 21 makes good sense. I appreciate that sentiment, especially during a time when gun violence is a problem in our country,” the Donald Trump appointee wrote. “But that is a policy argument. As judges, we interpret law rather than make policy.” 

The consequences of the doctrine and the act are also significantly different, according to Quattlebaum. Licensees who sell to those under 21 risk prison time and fines. 

“In a worst-case scenario, the merchant returned the money and got the gun back, losing only the time he took to sell the gun to the 18-year-old. Refunds are a standard part of commercial life with benefits to both retailers and consumers,” Quattlebaum said of the doctrine. “They are not to be seriously compared with the threat of prison.”

U.S. Circuit Judge Toby Heytens, who concurred with Wilkinson, seems to have missed the point of the lawsuit altogether. 

“Do 16- and 17-year-olds have a constitutional right to buy handguns?” the Joe Biden appointee asked. “The plaintiffs are on the horns of a dilemma, because their arguments for why 18-year-olds have a constitutional right to buy handguns suggest that younger people do too — a startling result that the plaintiffs seek to obscure and for which they offer no defense.”

No 16-year or 17-year-old was involved in this litigation, so if that is a concern for Heytens he should wait until there’s a case that actually deals with that issue. I’d argue again, though, that at the very least the Second Amendment protects the right of young adults to keep, carry, and purchase firearms for lawful purposes, including self-defense. 

With the Fourth Circuit’s decision, the split between appellate courts on the Second Amendment rights of young adults has become even deeper. The state of Florida has until July 11 to respond to the NRA’s cert petition in a case challenging the state’s ban on gun sales to under-21s, and Brown v. ATF and McCoy v. ATF, which are the two cases decided by the Fourth Circuit on Wednesday, aren’t far behind NRA v. Glass. The Court may want to wait “a term or two” to take up a hardware case, but they’ll have multiple opportunities this fall to resolve the circuit court split on when, exactly, we the people become fully vested with our Second Amendment rights.