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October 21, 2009

Fifth Circuit (properly) dodges whether federal prohibition on gun sale to a 19-year-old is constitutional

Thanks to this post at The Volokh Conspiracy, I see that the Fifth Circuit yesterday issued a brief ruling in US v. Bledsoe, 08-51217 (5th Cir. Oct. 20, 2009) (available here), in which a 19-year-old defendant had pled guilty to paying a third-party to purchase a gun for her from a licensed dealer because she was prohibited by federal law from buying a gun until age 21.  Here is the notable part of the opinion for Second Amendment fans:

Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008).  Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.

We do not need to reach the substance of Bledsoe's arguments.  Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing.  The Supreme Court has stated that "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit.  One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional."  Dennis v. United States, 384 U.S. 855, 867 (1966).

The Fifth Circuit ruling on the merits seems spot-on, but it also suggests that it is only a matter of time before a sympathetic 20-year-old (perhaps one who serves as a member of our military reserves) with a helpful lawyer makes a direct attack (perhaps in civil suit seeking a declaratory judgment) on the overall age scheme in § 922.  Indeed, I am a bit surprised that I've not seen this issue litigated before, though perhaps there are lower court cases that just have not yet produced a ruling.

Of course, the really hard broader question after Heller is what is the age at which the government can completely prohibit gun possession.  Though many cases hold in various settings that juveniles get reduced rights relative to adults, I do not think there are too doctrines which make an important constitutional right completely unavailable to teenagers.  At some point, the Supreme Court is surely going to have to address this issue (though probably not until most persons who were teenagers at the time of Heller are well into adulthood).

October 21, 2009 at 04:51 PM | Permalink


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"...it is only a matter of time..."

Tomorrow? Friday? Anybody want to start a pool?

Posted by: Kent Scheidegger | Oct 21, 2009 7:13:15 PM

I predict that SCOTUS takes up an age/gun rights case before the end of the Obama presidency.

Posted by: Doug B. | Oct 22, 2009 9:06:14 AM

Given Kennedy's opinion in Roper, I find it highly doubtful he would go below 18.

Posted by: . | Oct 22, 2009 9:36:06 AM

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