The number of ways in which firearm rights can be restricted is seemingly endless. As will be seen from our discussion below of the Hirschfeld case, vindicating your firearm rights often requires the strength, fortitude and persistence to initiate and prosecute litigation through layers of trial and appeal. And, of course, protecting and restoring firearm rights requires the assistance of experienced local legal counsel with deep knowledge of firearm rights. This is the purpose of this website: to help you find attorneys in your area that can help you restore and vindicate your Second Amendment rights.
Sometimes, restoring your firearm rights means challenging a statute or regulation that restricts your rights. Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, Case No. 19-2250 (US 4th Cir. July 15, 2021) is an example of a case where statutory restrictions were challenged as unconstitutional and the court agreed.
The Gun Control Act and the Hirschfeld case
Despite the fact that the Second Amendment to the US Constitution guarantees the rights of citizens to own and carry firearms, in 1968 Congress passed the Gun Control Act (“GCA”) which, among other things, made it unlawful for “… any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver any firearm or ammunition … other than a shotgun or rifle, or ammunition for 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.” See 18 U.S.C. § 922(b)(1). The GCA also imposed a blanket prohibition against selling any sort of firearm to anyone under the age of 18.
Interestingly enough, the GCA did not make it unlawful for those under the age of 21 to own, possess or carry a firearm. Rather, the GCA imposed prohibitions and punishments upon a large class of individuals and businesses that might have lawfully provided guns and firearms to those under the age of 21. The legal effect was to severely limit the firearm rights of persons under the age of 21. This is an example of firearm restrictions that are imposed indirectly.
After more than fifty years, in Hirschfeld, a legal challenge finally succeeded in removing the prohibition against firearm sales to those between the ages of 18 and 21 years. The Hirschfeld ruling was handed down by the United States Court of Appeals for the Fourth Circuit – sitting in Virginia. The ruling was limited to those between the ages of 18 and 21. The portion of the GCA that restricts firearm sales to those under the age of 18 was not at issue in the case and the court made no ruling on the constitutionality of that restriction. The court’s ruling was made by a panel of three Circuit Court judges and the decision was 2-1. There has been a request by the losing party – the ATF – for a re-hearing of the case by the full Fourth Circuit and, likely, an appeal will be made to the US Supreme Court. Thus, this victory might be short-lived. The progress of the case will be watched closely. Here is a brief background on the case and the court’s reasoning.
Background
There were two plaintiffs in the case – Tanner Hirschfeld and Natalia Marshall. Hirchfeld turned 21 as the case progressed, so, essentially, he was withdrawn from the case. Thus, the case proceeded on Marshall’s challenge. When she was 18, Marshall was an equestrian assistant trainer in Virginia. She had an abusive ex-boyfriend and she obtained a Virginia State Court protective order against him. For her own protection, she attempted to buy a handgun from Dick’s Sporting Goods in 2018. However, the sale was refused since she was only 18 at the time. She (and Hirschfeld) filed a federal lawsuit challenging the constitutionality of that portion of the GCA which prohibits licensed firearm dealers from selling handguns and handgun ammunition to 18-, 19-, and 20-year-olds. Marshall also challenged the constitutionality of the ATF’s regulations implementing that provision of the GCA.
At the trial level, Marshall’s case was dismissed. Marshall persevered and appealed the trial court’s dismissal to the Fourth Circuit Court of Appeals. As noted above, the Court of Appeals declared the challenged part of the GCA to be an unconstitutional intrusion on rights protected by the Second Amendment.
Court’s Reasoning
The court’s reasoning was as follows. First, the court held “… that 18-year-olds possess Second Amendment rights.” Then the court determined that the challenged provision of the GCA does, in fact, impose “a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Third, the court held that the challenged provision of the GCA was NOT presumptively valid based on what the US Supreme Court held in the case of District of Columbia v. Heller, 554 US 570 (2008).
Fourth, as required by constitutional law doctrine, the court applied a “heightened” level of scrutiny on the challenged statutory provision. Why? Generally, courts give great deference to the government’s laws, statutes and regulations. Under normal circumstances, when a challenged statute, law or regulation does NOT infringe on constitutional rights, then, courts will apply what is called the “rational basis” test when evaluating the constitutionality of law. This test is “easy” for governments to “pass.” However, when constitutional rights ARE infringed, then courts use more exacting tests called “intermediate scrutiny” or “strict scrutiny.” The government almost always loses when a strict scrutiny standard is applied.
Since the GCA provision in question was NOT “presumptively valid,” the court rejected use of the rational basis test. Then, as is usually done, the Court of Appeals began applying an intermediate level of scrutiny. The court held that the challenged provision of the GCA failed on that level of scrutiny. As such, the court did not need to decide if strict scrutiny should be used.
In general, when applying intermediate scrutiny, a court must look at the government’s legitimate interests and stated goals and compare those to the methods used in the statute, law or regulation. There must be a “reasonable fit” between the government’s legitimate interests and the manner in which the government sought to effectuate – achieve – those interests. In this case, the government’s interests were preventing crime, enhancing public safety and reducing gun violence. In summary, the government’s argument was that the brains of young people – under age 25 – are not fully developed and, consequently, young people are prone to reckless and emotional behavior. This means, according to the government, that young people are more prone to engage in violent behavior. Since guns are often used to commit violence, restricting handgun sales to young people will reduce gun-related violence and enhance public safety.
The court rejected this argument and held that the GCA restriction was not a “reasonable fit” to the government’s stated legitimate interests. First, the GCA’s restrictions were overly broad. The evidence provided to the court supposedly showed that 18-, 19-, and 20-year-olds make up around 4% of the population but account for around 9.4% of violent crime arrests (about 37,000 of the 400,000 arrests each year). But, at the same time, there are about 13 million young adults in this age group. As such, “an exceedingly small percentage, around 0.3% and definitely less than 1%, of the age group” commits the violent crimes that supposedly justify the government’s restrictions on firearm rights. The court held that the GCA’s restrictions were too broad. An entire group’s rights cannot be restricted on the basis of conduct committed by such a small percentage of the targeted group.
Second, the court held that there was no evidence that restricting the sales of firearms by licensed dealers is, in any way, connected to the hoped-for reduction in crime that the government sought. As the court stated:
“It is not enough to target guns generally and argue that less access to guns means less crime, as this would justify almost any restriction and eviscerate the Second Amendment. … Access to guns through licensed dealers—rather than access to handguns generally— must be sufficiently connected to 18- to 20-year olds’ use of those firearms to commit violence.”
The court then discussed several studies that were presented as evidence that showed that, at most, only 13.4% of firearms used in violent crimes were obtained from licensed dealers. Moreover, one study conducted by the Department of Justice suggested that the percentage was as low as 1.9%. The court cited other studies and raised other problems with the GCA’s age restriction and ultimately concluded that the challenged provisions failed to pass intermediate scrutiny. There was no “reasonable fit” between restricting the firearm sales from licensed dealers and reducing gun violence. For these reasons, the challenged provision of the GCA was declared unconstitutional.
As can be seen, Second Amendment law is complex. Removing restrictions on your firearm rights will require the help and assistance of experienced and talented legal representation.
Find A Firearm Rights Attorney Today
If a conviction or something else in your past is inhibiting your ability to own and carry a firearm or if you want to challenge firearm rights restrictions, you will need the help of an experienced Second Amendment-focused attorney. FirearmRights.net can help you find attorneys in your area that can provide advice and legal counsel. This website has been developed by firearm rights attorneys with extensive experience in protecting Second Amendment rights. Our goal is to support the firearm community by restoring the rights of people who deserve them.
Click on the “Restore Your Rights” tab to be connected with a dedicated attorney in your area who can review the facts of your case and start the journey to reclaiming your second amendment rights.