FOURTH CIRCUIT VACATES HIRSCHFELD GUN RULING

(Posted September 22, 2021) Back in July, I reported on a significant Second Amendment decision out of the Fourth Circuit. In Hirschfeld v. ATF, a divided panel of the court struck down a 1968 federal statute that barred persons aged 18 through 20 from buying guns. The panel majority ruled that the statute didn’t survive intermediate scrutiny. A lone dissenter felt that it did. The opinions were long, accumulating to well over 100 pages.

Today, that ruling comes tumbling down, without so much as a rehearing grant. What happened? Why, the original petitioner, Ms. Marshall, reached her 21^st birthday. That means she can go out and buy a gun now; the statute no longer affects her.

The three judges from the original panel unanimously agree that Ms. Marshall’s majority moots the appeal and hence the litigation. Even so, that same 2-1 split persists, albeit in a muted fashion. That’s because Judge Richardson, who writes today’s majority opinion, tosses in this passage at the end:

Finally, we note that the public and the “legal community as a whole” will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. (internal citation omitted)

“Oh, no, you don’t,” Judge Wynn retorts in a concurrence. (Well, he didn’t use those words; I’m borrowing some literary license here.) Here’s the essence of his riposte to the majority’s effort to give the previous long majority opinion some enduring life after its death by vacatur:

To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues’ statement that “the panel and dissent will remain available as a persuasive source” means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.

Judge Wynn notes that a ruling like this one was highly likely to be reheard en banc, and allowing lawyers and judges to cite it without that layer of screening would be unwise.

Judge Wynn is right, of course; a vacated panel opinion carries no precedential weight at all, but it’s foreseeable that someone may want to cite it. The issues here may lie fallow for quite some time, until a suitable 18-year-old can be found to file a new action. Perhaps that litigation can wend its way through the federal system in less than the three years that it takes for an 18-year-old to turn 21.