The Justice Department’s Office of Legal Counsel has concluded that the federal government cannot constitutionally threaten gun dealers with prison for selling handguns to law-abiding adults between 18 and 20 years old.
In a 49-page opinion issued September 17, Assistant Attorney General T. Elliot Gaiser determined that applying 18 U.S.C. §§ 922(b)(1) and (c)(1) to young adults violates the Second Amendment. Those provisions of the Gun Control Act of 1968 prohibit federally licensed dealers from selling handguns or handgun ammunition to anyone under 21.
The opinion’s conclusion is direct: The statutes “may not be enforced to impose criminal penalties on dealers” who sell handguns to otherwise law-abiding adults between 18 and 20.
That is a major constitutional admission from the federal government. An American does not become one of “the people” protected by the Bill of Rights on his 21st birthday.
Adults Under 21 Are Part of “The People”
The opinion applies the constitutional test established in New York State Rifle & Pistol Association v. Bruen and refined by subsequent Supreme Court decisions.
First, the government must determine whether the Second Amendment’s text covers the proposed conduct. The OLC concluded that it plainly does.
Adults between 18 and 20 are members of “the people.” Handguns are protected “arms” and remain the most commonly selected firearms for personal defense. The right to keep and bear arms also necessarily includes the ability to acquire one. Congress cannot avoid the Second Amendment by criminalizing the seller instead of the buyer.
Nor is access to private transfers or gifts an adequate substitute for being allowed to purchase from an FFL. Not every young adult has a relative willing to provide a handgun, and several states restrict private transfers. A constitutional right cannot depend on finding someone else willing and legally able to exercise it on your behalf.
The OLC’s conclusion tracks the Fifth Circuit’s ruling in Reese v. ATF. The Fifth Circuit likewise held that 18-to-20-year-olds are among “the people” and that the government failed to identify a comparable Founding-era restriction.
The Founders Armed 18-Year-Olds
The historical evidence is devastating to the federal ban.
According to the opinion, 249 of more than 250 colonial and early state militia laws required militia service by men between 18 and 20. The Militia Act of 1792 enrolled citizens beginning at age 18 and required them to provide themselves with a musket, firelock or rifle.
The same generation that ratified the Second Amendment did not treat these young Americans as a dangerous and disarmed underclass. It required them to possess arms and stand ready to defend their communities and the country.
The Twenty-Sixth Amendment makes the government’s modern position even less defensible. At 18, an American may vote, serve on a jury, enter binding contracts, face adult criminal punishment and be required to register for the draft. The government cannot recognize someone as a full citizen whenever it demands responsibility from him, then revive childhood when he wants the means to defend himself.
OLC Rejects the “Infancy Doctrine” Excuse
The opinion systematically rejects the historical arguments courts have used to preserve under-21 gun bans.
The most important is the common-law “infancy doctrine.” At the Founding, people under 21 were generally considered legal minors, and many of their contracts were voidable. Gun-control advocates have tried to transform that general rule of contract law into a historical tradition of firearm prohibition.
A federal judge recently used that theory to uphold Hawaii’s sweeping ban on firearm acquisition by adults under 21.
The OLC opinion explains why the analogy fails. The infancy doctrine protected dependent minors from unscrupulous merchants. It did not prohibit firearm purchases, did not criminalize merchants and did not prevent cash transactions. A minor could enter a contract and later choose to void it. Under the federal handgun ban, an FFL who completes the sale can face loss of his license and up to five years in prison.
The two legal regimes target different people for different reasons and operate in fundamentally different ways. A rule allowing a minor to obtain a refund is not a historical analogue for imprisoning a gun dealer who sells a handgun to a legal adult.
The opinion also rejects late-19th-century sales restrictions as too late and too scattered to establish the original meaning of a right ratified in 1791. Most applied to legal “minors,” not adults as that status is defined today. College rules were similarly inadequate because they governed students, generally on campus, rather than disarming every adult under 21 throughout the country.
A Major Victory, but Not Yet a Repeal
The opinion is not a Supreme Court decision, injunction or act of Congress. Sections 922(b)(1) and (c)(1) remain printed in the U.S. Code, and the document does not itself explain when or how ATF will change its instructions to FFLs. Dealers and young adults should wait for clear implementation guidance rather than risk becoming a test case.
State restrictions also remain a separate problem. The opinion lists numerous states with their own under-21 purchase laws, and it does not purport to repeal them. Federal courts remain divided, with the Fifth Circuit striking down the federal restriction while other courts have upheld similar bans.
That division has consequences beyond academic debate. AmmoLand recently reported on 19-year-old Martinez Long, who lawfully stopped a gunman inside a Michigan mall but was prosecuted because the state would not issue him a concealed-pistol license. Age restrictions do not stop violent criminals from carrying guns. They leave peaceable adults disarmed and create crimes out of conduct protected by the Constitution.
The DOJ has now acknowledged the obvious: Adults between 18 and 20 are not partial citizens. They are part of “the people,” and the Second Amendment protects their right to acquire the quintessential weapon of self-defense.
Congress may have enacted the federal handgun restriction in 1968 under the banner of public safety, but Bruen does not permit the government to balance away an enumerated right. Without a historical tradition supporting the ban, the constitutional command controls: “shall not be infringed.”
About Duncan Johnson:
Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.
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