(Posted July 13, 2021) Because the subject of today’s sermon begins in the Johnson Administration, I think it’s fitting to recount a story — perhaps apocryphal, but too good not to share — from that era. In 1964, when President Johnson decided to run for a full term as president, he needed to find a vice-presidential candidate. (The 25th Amendment, which provides for filling a vacancy in the vice presidency, didn’t pass until 1967.)

Johnson called Hubert Humphrey and asked in his slow Texas drawl, “Hubert, if I pick you for my vice president, can you keep your mouth shut for four years?” “Yes, sir, Mr. President,” came the answer, “you can count on me, sir.” There was a pause before Johnson resumed, “There you go … interruptin’ me already …”

In 1968, Congress passed legislation that prohibited persons aged 18 through 20 from buying handguns. In Hirschfeld v. ATF, a panel of the Fourth Circuit evaluates whether that statute infringes the Second Amendment right to keep and bear arms.

The opening paragraph of Judge Richardson’s majority opinion telegraphs the answer, and the result of this appeal:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

This is a challenge to that 1968 law by a Virginia resident who, according to today’s opinion, has a fairly compelling reason to carry a handgun. She had obtained a protective order against her abusive ex-boyfriend, but he failed to show for court. He had a prior arrest for unlawful possession of a firearm, so it’s a fair inference that he’d have one if he came after her.

The young lady wanted the security of buying a gun from a licensed gun dealer; not the risk of buying from a private owner. But that federal law prevented any such dealer from selling to her. Hence this litigation.

A district court upheld the statute, applying intermediate scrutiny; but today a majority of the Fourth Circuit panel strikes it down. Judge Richardson, joined by Judge Agee, holds that this situation calls for at least intermediate scrutiny, as it effectively prevents 18-20 year olds from buying a gun at all. This isn’t the equivalent of a time, place, or manner restriction for speech; it’s a complete shutoff.

The majority holds that this complete ban isn’t “a reasonable fit between the challenged regulation and a substantial government objective.” The stated purpose of the law was to control crime, but the court today holds that this doesn’t justify a categorical ban, especially where there’s little or no evidence of a causal link between the gun sales and the perceived crime levels.

In reviewing Judge Richardson’s analysis, you’ll probably find his evaluation of the early Republic’s militia laws most enlightening. Courts in these cases look to the meaning of the words (here, of the Second Amendment) at the time they were used. That means 1791, the date of ratification. And back then, 18-year-olds were expected to answer the call to join a militia.

This law, then, infringes on the constitutional right to keep and bear arms, and the majority finds that it isn’t narrowly tailored to achieve a compelling government need.

Arguing in dissent, Judge Wynn urges that the courts leave this question to the democratically elected branches of government. He notes that Congress saw a problem of gun violence by young adults in the 1960s, and after extensive legislative hearings, chose a means to deal with it.

Judge Wynn’s approach is to accept the majority’s two-prong test – first, whether the law burdens a constitutional right, and if so, whether the law survives intermediate scrutiny. He assumes the first prong, but parts ways with the majority on the second. He notes that the two major recent Second Amendment decisions from SCOTUS – DC v. Heller and McDonald v. Chicago – each retained a number of undefined limitations on their holdings. Both of those decisions had struck down gun limitations, but each contained language assuring readers that reasonable limitations on gun ownership were still permissible.

Judge Wynn finds this statute to be one such reasonable limitation. He cites decisions affirming longstanding conditions and qualifications on the commercial sale of arms, and would hold that this is just such a restriction. This, in turn, prompts a riposte from Judge Richardson, who notes that the restrictions in those cases applied to sellers, while this one is a wholesale ban on buyers.

A few idle notes about this decision: First, it’s long. The majority opinion is 83 pages and is followed by several pages’ worth of tables, setting out the militia laws in the colonies both before and after ratification of the Constitution. He includes 77 footnotes, many of which are quite detailed. Judge Wynn’s dissent exceeds 50 pages and includes 34 footnotes.

By Fourth Circuit standards, this decision has been quite a while in coming. The parties argued it at the end of October, 8½ months ago. For comparison’s sake, the median time between oral argument and decision in the court is 2.8 months. The complexity of the dueling opinions is a good explanation for the delay.

Assuredly, this isn’t the last word; ATF will likely seek en banc rehearing or petition the Supreme Court for cert. While the grant rates for either petition are dauntingly small – 0.3% for en banc rehearing and single digits in SCOTUS – the issues here make a grant more likely.

Finally, I write to note with admiration the tone of these two opinions. They’re respectful, cordial, and civil toward each other. Judge Wynn has long been an advocate of such civility. In his relatively short time on the court, I’ve noticed the same kind of respectful differences of opinion in Judge Richardson’s writings. As a professional consumer of appellate opinions, I appreciate that. There’s none of the flame-war language of other Fourth Circuit judges who shall remain nameless, but whose initials are Judge Wilkinson and Judge Niemeyer. To be sure, those unnamed jurists’ opinions make for entertaining and usually compelling reading; but I prefer the gentle form of disagreement that we see today.