IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                               Fifth Circuit

                                                                FILED
                                                              April 30, 2013

                               No. 11-10959                   Lyle W. Cayce
                                                                   Clerk

NATIONAL RIFLE ASSOCIATION, INCORPORATED; ANDREW M.
PAYNE; REBEKAH JENNINGS; BRENNAN HARMON,

                                        Plaintiffs–Appellants
v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; B.
TODD JONES, In His Official Capacity as Acting Director of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives; ERIC H. HOLDER, JR., U.S.
ATTORNEY GENERAL,

                                        Defendants–Appellees



               Appeal from the United States District Court
                    for the Northern District of Texas


                 ON PETITION FOR REHEARING EN BANC
                 (Opinion October 25, 2012, 

)
                                 No. 11-10959

Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:


      The court having polled at the request of a member of the court (see
Internal Operating Procedure accompanying 5TH CIR. R. 35, “Requesting a Poll
on Court’s Own Motion”), and a majority of the judges who are in regular active
service and not disqualified not having voted in favor (see FED. R. APP. P. 35(a)
and 5TH CIR. R. 35.6), rehearing en banc is DENIED.
      In the en banc poll, 7 judges voted in favor of rehearing (Judges Jolly,
Jones, Smith, Clement, Owen, Elrod, and Higginson), and 8 judges voted against
rehearing (Chief Judge Stewart and Judges King, Davis, Dennis, Prado,
Southwick, Haynes, and Graves).




ENTERED FOR THE COURT:

  /s/ Edward C. Prado
United States Circuit Judge




                                       2
                                  No. 11-10959

EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, CLEMENT,
OWEN, and ELROD, Circuit Judges, dissenting from denial of rehearing en
banc.


        By a one-vote margin, this court declined to consider en banc the
constitutionality, under the Supreme Court’s recent Second Amendment
decisions, of federal laws barring licensed gun dealers from selling handguns or
handgun ammunition to people less than 21 years old (and similar provisions).
See 18 U.S.C. § 922(b)(1).1 Effectively, these provisions bar law-abiding adults
aged 18 to 20 from purchasing handguns in the highly regulated commercial
firearms market.
        I respectfully dissent. There are serious errors in the panel decision’s
approach to the fundamental right to keep and bear arms. McDonald v. City of
Chicago, 

(2010). Moreover, the implications of the decision—that
a whole class of adult citizens, who are not as a class felons or mentally ill, can
have its constitutional rights truncated because Congress considers the class
“irresponsible”—are far-reaching.




        1
       The related provisions include 18 U.S.C. § 922(c)(1) and the regulations that
implement these statutes: 27 C.F.R. §§ 478.99(b)(1), 478.124(a), & 478.96(b).

                                         3
                                       No. 11-10959

I.     The Panel Decision
       Like other circuits,2 the panel adopted a two-step approach to
interpretation of the Second Amendment. The first consideration is whether
“the conduct at issue falls within the scope of the Second Amendment right” as
shown by “historical traditions.” NRA v. ATF, 

, 194 (5th Cir. 2012).
The second level of consideration is to apply a type of intermediate scrutiny
based on the panel’s conclusion that “[a] less severe regulation—a regulation
that does not encroach on the core of the Second Amendment—requires a less
demanding means-ends showing.”                

panel held that “a
longstanding, presumptively lawful regulatory measure—whether or not it is
specified on Heller’s illustrative list—would likely fall outside the ambit of the
Second Amendment; that is, such a measure would likely be upheld at step one
of our framework.” 

a measure “would not threaten the core of
the Second Amendment guarantee.” 

overview of “Founding-Era Attitudes” and 19th
century laws that allegedly regulated firearms use by people under 21, the panel
was “inclined” to hold that the challenged federal laws are “historically rooted,”
and thus the conduct they regulate has no constitutional protection. 

“In an abundance of caution,” however, the panel went on to uphold these
provisions under a version of intermediate scrutiny. 

panel
states, during that part of the discussion, that “Congress could have sought to

       2
          See United States v. Greeno, 

, 518 (6th Cir. 2012); Heller v. Dist. of
Columbia, 

, 1252 (D.C. Cir. 2011) (Heller II); Ezell v. City of Chicago, 

, 701–04 (7th Cir. 2011); United States v. Chester, 

, 680 (4th Cir. 2010); United
States v. Reese, 

, 800-01 (10th Cir. 2010); United States v. Marzzarella, 

, 89 (3d Cir. 2010). See also United States v. Skoien, 

, 641–42 (7th Cir. 2010)
(en banc) (adopting a form of intermediate scrutiny but forgoing the two-step analysis). But
see Houston v. City of New Orleans, 

, 448 (5th Cir.) (Elrod, J., dissenting), op.
withdrawn and superseded on reh’g. by 

(5th Cir. 2012); Heller 

(Kavanaugh, J., dissenting).

                                               4
                                  No. 11-10959

prohibit all persons under 21 from possessing handguns—or all guns, for that
matter.” 

this is hyperbole? Never in the modern era has the
Supreme Court held that a fundamental constitutional right could be abridged
for a law-abiding adult class of citizens.
      Three major points of the panel’s opinion, in my view, are incorrect. First,
the panel’s treatment of pertinent history does not do justice to Heller’s tailored
approach toward historical sources. A methodology that more closely followed
Heller would readily lead to the conclusion that 18- to 20-year old individuals
share in the core right to keep and bear arms under the Second Amendment.
Second, because they are partakers of this core right, the level of scrutiny
required to assess the federal purchase/sales restrictions must be higher than
that applied by the panel. Finally, even under intermediate scrutiny, the
purchase restrictions are unconstitutional. I will address each of these concerns.
II.   Heller and the Proper Role of History
      A.    The Supreme Court’s Historical Inquiry
      The panel decision purports to follow Heller’s originalist inquiry, but its
first step does not take seriously Heller’s methodology and reasoning. Heller, of
course, held that there is an individual Second Amendment right to keep and
bear arms, and that the D.C. law banning handgun possession for self-defense
in a person’s home is accordingly unconstitutional.
      To determine whether the Second Amendment conferred an individual
right “to keep and bear arms,” and to explain the meaning and implicit limits of
that constitutional right, the Court majority embarked on a meticulous textual
and historical review. Rather than generalizing about “founding era attitudes,”
as the panel did, Justice Scalia’s review proceeded in precise stages, each of
which addressed relevant historical materials. First, the text of the Constitution
was interpreted in light of historical documents bearing on each phrase and

                                        5
                                    No. 11-10959

clause of the Second Amendment as those were understood at the time of its
drafting.    Second, the conclusion, that the Second Amendment codified a
pre-existing right of the people to bear arms for self defense, was then
“confirmed by analogous arms-bearing rights in state constitutions that preceded
and immediately followed adoption of the Second Amendment,” covering the
period from 1789 to 1820. Dist. of Columbia v. Heller, 

, 600–01,

, 2802 (2008). Finally, the Court examined interpretations of the
Second Amendment from its adoption through the 19th century in “a variety of
legal and other sources to determine the public understanding of [the] legal
text.” 

S. Ct. at 2805.
        But these sources are not all equal. Text, structure, and contemporary
drafting indications are the primary historical sources for originalist inquiry.
After that,      Heller devoted attention to pre-Civil War case law and
commentators, whose intellectual foundations were close to those of the founding
generation. Post-Civil War sources, the Court noted, “do not provide as much
insight into its original meaning as earlier sources.” 

S. Ct. at
2810.
        Significantly, the opinion stated that, “[l]ike most rights, the right secured
by the Second Amendment is not unlimited. . . . [T]he right was not a right to
keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” 

S. Ct. at 2816. For example, bans on
concealed carrying were common in the 19th century, and private ownership of
military-type weapons and short-barreled shotguns was long forbidden. Further,
listing “non-exclusive examples,” the Court did not “cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the

                                           6
                                    No. 11-10959

commercial sale of arms.” 

S. Ct. at 2816–17.
      Notably, in referring more than once to permissible historic limits on gun
ownership, the Court never mentions a minimum age requirement for exercise
of the right. On the contrary, to explain the “militia clause,” the Court quoted
the first federal Militia Act, which provided that “each and every free able-bodied
white male citizen of the respective states, resident therein, who is or shall be
of the age of eighteen years . . . shall . . . be enrolled in the militia.” 

S. Ct. at 2800 (quoting Act of May 8, 1792, 1 Stat. 271). Further, the Court
explained, the right of able-bodied citizens to keep and bear arms for self defense
was constitutionally codified “to prevent elimination of the militia,” which some
feared the newly created Federal Government, like past tyrants, might do by
taking away the citizens’ arms. 

S. Ct. at 2801. Those subject to
militia duty are therefore a subset of citizens entitled to be armed, and for them
the right is essential.
      In another demonstration of the proper historical approach, the Court
rejected Justice Breyer’s isolated and irrelevant historical examples of founding
era laws that did not come close to the banning of a class of useful weapons.
Justice Breyer would have held that, assuming arguendo the existence of a
personal constitutional right to keep and bear arms, the existence of various
founding era regulations of “firearms in urban areas”—on gunpowder storage,
firing weapons in public places, and one Massachusetts law designed to protect
firefighters—are “compatible” with the D.C. ban on handgun possession. 

S. Ct. at 2848–50 (Breyer, J., dissenting). The Court rejected such
examples, which were not germane to an outright ban on keeping weapons of
self-defense. The Court noted, inter alia, how insignificant, in comparison to
D.C.’s ban, were the penalties attached to violations of such local laws. The
Court squarely rejected Justice Breyer’s “freestanding ‘interest balancing’

                                          7
                                   No. 11-10959

approach” and it rejected the rational basis test for review of gun regulations.

S. Ct. at 2821 (majority opinion).
      B.     Heller’s Methodology
       In sum, the Court’s discussion leaves no doubt that the original meaning
of the Second Amendment, understood largely in terms of germane historical
sources contemporary to its adoption, is paramount. Further, the personal right
to keep and bear arms stands on a par with the First Amendment’s personal
rights:
      The very enumeration of the right takes out of the hands of
      government—even the Third Branch of Government—the power to
      decide on a case-by-case basis whether the right is really worth
      insisting upon. A constitutional guarantee subject to future judges’
      assessments of its usefulness is no constitutional guarantee at all.
      Constitutional rights are enshrined with the scope they were
      understood to have when the people adopted them . . . . We would not
      apply an “interest-balancing” approach to the prohibition of a
      peaceful neo-Nazi march through Skokie. The First Amendment
      contains the freedom-of-speech guarantee that the people ratified,
      which included exceptions for obscenity, libel, and disclosure of state
      secrets, but not for the expression of extremely unpopular and
      wrongheaded views.           The Second Amendment is no
      different. . . . And whatever else it leaves to future evaluation, it
      surely elevates above all other interests the right of law-abiding,
      responsible citizens to use arms in defense of hearth and home.

S. Ct. at 2821 (citation omitted) (second emphasis added).
      The Court’s analogy between the scope of Second Amendment and First
Amendment rights particularly illuminates how historical sources should be
used and how lower courts should approach today’s firearms regulations. Free
speech, in the classic sense, is never subject to interest-balancing before it merits
constitutional protection. “Speech” is protected categorically unless it fits within
specifically defined classes, e.g., obscenity, fraud, libel, and state secrets, that
received no legal protection at the time of ratification of the Bill of Rights.

                                         8
                                       No. 11-10959

Nevertheless, the exercise of free speech rights may be regulated by
time/place/manner restrictions, all of which have evolved in the jurisprudence.
       Applying these concepts to the Second Amendment, as Heller requires, we
should presuppose that the fundamental right to keep and bear arms is not itself
subject to interest balancing. The right categorically exists, subject to such
limitations as were present at the time of the Amendment’s ratification.3
       Consequently, a government entity that seeks significantly to interfere
with the Second Amendment rights of an entire class of citizens bears a heavy
burden to show, with relevant historical materials, that the class was originally
outside the scope of the Amendment. It is not enough to contend that the
existence of some founding-era firearms regulations shields all future
regulations no matter how onerous; the historical record must bear on the issue
at hand.       Moreover, post-Civil War laws, enacted 75 years after the
Amendment’s ratification, “do not provide as much insight into its original
meaning as earlier sources.” 

S. Ct. at 2810.
       C.     The Historical Record Regarding the Right of 18- to 20-Year Olds to
              Keep and Bear Firearms
       When we turn to the properly relevant historical materials, they couldn’t
be clearer: the right to keep and bear arms belonged to citizens 18 to 20 years
old at the crucial period of our nation’s history.                The panel’s error is in
rummaging through random “gun safety regulations” of the 18th century and
holding that these justify virtually any limit on gun ownership. If the panel is
correct, then Heller had to be wrongly decided. The panel also relies on laws



       3
        To repeat, however, according to Heller, those historical restrictions included at least
certain types of military weapons, “longstanding” bans on possession by felons and the
mentally ill, laws forbidding carrying weapons in sensitive places, and laws imposing
conditions and qualifications on the commercial sale of arms. 

S. Ct. at
2816–17.

                                               9
                                      No. 11-10959

that “targeted particular groups for public safety reasons.” 

. Laying aside that no such invidiously discriminatory laws would pass
muster today, none of them specifically limits firearms possession or purchase
by minors or 18 to 20 year old people. The panel’s resort to generalized history
is not only uninformative of the issue before this court, but it would render
Heller valueless against most class-based legislative assaults on the right to
keep and bear arms. The panel has employed Justice Breyer’s scattershot
approach to history, while Heller rejected that in favor of a targeted study.
      From a historical perspective, it is more than odd that the panel relegates
militia service to a footnote.
      History and tradition yield proof that 18- to- 20-year olds had full Second
Amendment rights. Eighteen year olds were required by the 1792 Militia Act to
be available for service, and militia members were required to furnish their own
weapons; therefore, eighteen year olds must have been allowed to “keep”
firearms for personal use. Because they were within the “core” rights-holders at
the founding, their rights should not be infringed today. As Tench Coxe said,
“the powers of the sword are in the hands of the yeomanry of America from 16
to 60. . . . Their swords . . . are the birthright of an American.”4 The panel
opinion presents a different history.
      The panel questions inclusion of the 18- to- 20-year old group in the “core”
of the Amendment by reference to early sources and 19th and 20th Century laws
restricting that age group’s rights. As I have shown, the latter references are
highly questionable. The original public meaning of the Second Amendment at
the time of its ratification should be the norm for this initial scope question.5


      4
          Tench Coxe, “A Pennsylvanian, No. 3,” Pennsylvania Gazette, Feb. 20, 1788.
      5
        1791—the year the Second Amendment was ratified—is “the critical year for
determining the amendment’s historical meaning, according to McDonald v. City of Chicago,

                                             10
                                       No. 11-10959

       Following Heller’s methodology correctly, the laws prior to and
immediately surrounding passage of the Second Amendment illuminate its
contemporary understanding. Sixteen was the minimum age for colonial militias
almost exclusively for 150 years before the Constitution. In 1650, it was not just
the right but the duty of all persons aged sixteen and above in Connecticut, for
example, to bear arms.6 The other colonies had similar militia laws, at least for
males. Delaware was an exception, though, as the minimum militia age there
was seventeen.7
       At the time of the Second Amendment’s passage, or shortly thereafter, the
minimum age for militia service in every state became eighteen.8 Almost every


[

,] 3035 and n.14 [(2010)].” Moore v. Madigan, 

, 935 (7th Cir.
2012). And Heller makes plain that 19th-century sources may be relevant to the extent they
illuminate the Second Amendment’s original meaning, but they cannot be used to construe the
Second Amendment in a way that is inconsistent with that meaning. See Dist. of Columbia
v. Heller, 

, 634–35, 

, 2821 (2008) (enshrining the scope of the right
as what was understood when the people ratified the Second Amendment).
       6
         Clayton E. Cramer, Colonial Firearm Regulation, 16 J. ON FIREARMS & PUB. POL’Y
2004, 1, 3.
       7
           

         Alphabetically by state, these are the available minimum militia ages set around the
time of ratification of the Second Amendment and the federal Militia Act of 1792:

       Connecticut: 18 / Acts and Laws, 308 (1792) (following a reprint of the federal militia
            law, Connecticut provided that militia fines imposed on those who had not yet
            reached the age of twenty-one would be paid by their parents).
       Delaware: 18 / Ch. XXXVI, An Act for Establishing the Militia In This State, 1134
            (1793).
       Georgia: 18 / An Act to Revise and Amend the Militia Law of This State, and to
            Adapt the Same to the Act of the Congress of the United States, Passed the
            Eighth Day of May, One Thousand Seven Hundred and Ninety-Two, Entitled
            “An Act More Effectually to Provide for the National Defence by Establishing
            and Uniform Militia Throughout the United States,” as contained in Digest of
            the Laws of Georgia, 460 (1792).
       Maryland: 18 / Ch. LIII, An Act to Regulate and Discipline the Militia of This State,
            Laws of Maryland (1793).
       Massachusetts: 18 / Ch. 1, An Act for Regulating and Governing the Militia of the

                                              11
                                       No. 11-10959

state adopted the federal Militia Act of 1792 by reference and began using its age
structure.9 The duty range in the Militia Act, 18 to 45 years, was based on what
President Washington thought was the best age for soldiers. The historical data
thus confirm that those eighteen and above had the right to keep and bear arms.
       The panel cites “several States” that chose to enroll only those twenty-one
and older in their militias.        In fact, both of the examples offered for this

             Commonwealth of Massachusetts, and for Repealing All Laws Heretofore Made
             for That Purpose; excepting an Act Entitled, “An Act for Establishing Rules and
             Articles for Governing the Troops Stationed in Forts and Garrisons, Within This
             Commonwealth, and Also the Militia, When Called Into Actual Service,” 172
             (1793).
       New Hampshire: 18 / An Act for Forming and Regulating the Militia Within This
             State, and For Repealing All the Laws Heretofore Made for That Purpose, 251
             (1792).
       New Jersey: 18 / Ch. CCCCXIII, An Act for Organizing and Training the Militia of
             This State, Sec. 4, Acts of the General Assembly of the State of New Jersey, 825
             (1792).
       New York: 18 / Ch. 45, An Act to Organize the Militia of This State. Laws of New York
             440 (1793).
       North Carolina: 18 / Ch. XXII, An Act for Establishing a Militia in This State, Laws
             of North Carolina—1786, 813 (amended by An Act to Carry Into Effect an Act
             of Congress, Entitled, “An Act More Effectually to Provide for the National
             Defence, by Establishing an Uniform Militia Throughout the United States,”
             Also to Amend an Act, Passed at Fayetteville, in the Year One Thousand Seven
             Hundred and Eighty Six, Entitled, “An Act for Establishing the Militia in This
             State,” (1793)).
       Pennsylvania: 18 / Ch. MDCXCVI, An Act for Regulating the Militia of the Common-
             wealth of Pennsylvania, Statutes at Large of Pennsylvania, 455 (1793).
       South Carolina: 18 / An Act to Organize the Militia Throughout the State of South
             Carolina, in Conformity with the Act of Congress, 21 (1794) (enrolling citizens
             turning eighteen and evidencing a shift from the former militia age of sixteen
             as seen in: No. 1154, An Act for the Regulation of the Militia of This State, 682
             (1782–91)).
       Virginia: 18 / Ch. CXLVI, An Act for Regulating the Militia of this Commonwealth,
             182 & 184 (1792).
       9
        The choice of eighteen as the militia age for the federal law owed, in large part, to
George Washington’s stated belief that the best soldiers were those aged eighteen to twenty-
one. Further, it is likely, but not provable, that the right to bear arms was thought still to
extend even to those sixteen to eighteen (enrollment in the militia was sufficient, but not
necessary, to the right to own a gun), but appellants disclaim any intent to reduce the
minimum age below 18.

                                             12
                                       No. 11-10959

proposition are wrong. One is New Jersey in 1779.10 To begin, New Jersey’s
minimum age for serving in the militia at that time was sixteen11 and, more
importantly, New Jersey’s militia age in 1792 was eighteen.12 The 1779 Act cited
by the opinion was not a general militia act but, rather, a specific purpose act of
the type states would enact from time to time as supplements to their overall
militia structure.13 These would address a specific need and sometimes only be
in effect for a certain amount of time. Additionally, the 1779 Act did not say
twenty-one was the minimum age; it said the officers would make lists of
everyone above twenty-one, not exempted by some other duties. It laid out
specific numbers of militiamen to be drafted from each county so that an even
1000 was reached. Unlike every general militia act, there was no top age listed
because not everyone was being called in that Act—they only needed 1000 men.


       10
         Ch. XXIV, An Act to Embody, For a Limited Time, One Thousand of the Militia of
This State, for the Defence of the Frontiers Thereof, Sec. 3, Acts of the State of New Jersey,
59 (1779).
       11
         Compare Ch. XIII, An Act for the Regulating, Training, and Arraying of the Militia,
and For Providing More Effectually for the Defence and Security of the State, Sec. 10, Acts of
the General Assembly of the State of New Jersey, 40 (1781) (affirming the age group to be
enrolled in the state militia as sixteen to fifty), with Ch. XXIV, An Act to Embody, For a
Limited Time, One Thousand of the Militia of This State, for the Defence of the Frontiers
Thereof (using twenty-one as the cut-off age for a specific purpose act, but not ruling out the
use of those between the ages of sixteen and twenty-one who were still part of the militia).
       12
          See note 

; see also Ch. CCCCXXXIII, A Supplement to the Act, Intitled, ‘An
Act for Organizing and Training the Militia of This State,’ Sec. 6, Acts of the General Assembly
of the State of New Jersey, 853 (1793) (enrolling free, white males from eighteen to forty-five
in the state militia); Ch. DCCCXXII, An Act for the Regulation of the Militia of New-Jersey,
Sec. 1, Acts of the General Assembly of the State of New Jersey, 609 (1799) (same); Ch.
CLXXXVII, An Act for Establishing and Conducting the Military Force of New-Jersey, Sec. 1,
Acts of the General Assembly of the State of New Jersey, 536 (1806) (same).
       13
          See, e.g., Ch. XLII, An Act to Authorize the Governor of Commander in Chief of This
State for the Time Being, to Call Out a Part of the Militia of This State, and to Continue Them
in Service for Three Months, Acts of the General Assembly of the State of New Jersey, 112
(1781); Ch. XI, An Act to Establish a Company of Artillery, in the City of New-Brunswick, Acts
of the General Assembly of the State of New Jersey, 11 (1782).

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                                         No. 11-10959

Finally, the Act stated that “nothing herein contained shall be construed to
prevent employing Officers, and enlisting non-commissioned Officers and
Privates between the Age of sixteen and twenty-one years.” This, after all, is
following a period of 140 years of setting the militia age at sixteen.
       The other example given by the panel is an Ohio statute from 1843, which
is not as probative for establishing the original meaning of the Second
Amendment. In fact, though, the militia age in Ohio was eighteen at that time.14
The 1843 law only exempted persons under twenty-one from duties during times
of peace; eighteen to twenty year olds were still allowed in the militia.15
       The right to keep and bear arms was not coextensive with militia service,
of course, but it was intimately related. Gun ownership was necessary for
militia service; militia service wasn’t necessary for gun ownership. The panel
notes that they were not strictly linked but never considers that the age at which
citizens actually used guns was lower. Not only had the colonies employed
sixteen year olds in the militia for a century and a half, but other gun laws in
place at that time serve as indicia of the founders’ mind set. Massachusetts, for
example, required “all youth” from ten to sixteen to be trained in gun use.16
       The panel opinion is correct in noting that, during the founding era, the
common-law age of majority was twenty-one.17 This is confirmed by several of
the state militia laws which required the parents of minors in the militia to pay


       14
            An Act To Organize and Discipline the Militia, Sec. 1 (1837).
       15
          Ohio’s minimum age changed to twenty-one the following year, An Act To Regulate
the Militia, Sec. 2 (1844), but sixteen year olds were still allowed to volunteer for the militia
even after the shift, 

       16
        Nathaniel B. Shurtleff, Records of the Governor and Company of the Massachusetts
Bay in New England (Boston: William White, 1853), 2:99 (noting the May 14, 1645 order).
       17
         This point does not help the panel opinion in consideration of the gun restrictions
placed on many “minors” during the late 1800s. See infra notes 26–32 and accompanying text.

                                               14
                                        No. 11-10959

any fines incurred by their sons.18 But the point remains that those minors were
in the militia and, as such, they were required to own their own weapons. What
is inconceivable is any argument that 18- to 20-year olds were not considered, at
the time of the founding, to have full rights regarding firearms.
      Originalism is not without its difficulties in translation to the modern
world. For example, deciding whether the use of a thermal heat imaging device
violates the original public meaning of the Fourth Amendment is a hard
question. See Kyllo v. United States, 

, 

(2001). In this
case, however, the answer to the historical question is easy. The original public
meaning of the Second Amendment included individuals eighteen to twenty: the
same scenario at issue here. The members of the first Congress were ignorant
of thermal heat imaging devices; with late teenage males, they were familiar.
We have enough historical evidence to decide that 18- to 20-year olds can claim
“core” Second Amendment protection.
      Against this clear and germane evidence, the panel asserts that at the
time of the founding and before, the colonies placed various regulations on the
private use of firearms.19          Like Justice Breyer’s non-probative historical
references, however, these give no support to an age-based ban on firearms
purchases by 18- to 20-year olds. Some class-based firearms limits targeted
Indians, blacks, and Catholics.20 Other regulations operated against Loyalists
to the Crown, but “Loyalty Test” regulations actually work against the panel’s
conclusion. A brief survey reveals that they were applicable to persons above


      18
           See, e.g., Connecticut Acts and Laws, 308 (1792).
      19
         See Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American
Origins of Gun Control, 73 FORDHAM L. REV. 487, 506–08 (2004) (detailing eighteenth-century
gun laws).
      20
           Cramer, supra note 6, at 16–23.

                                              15
                                       No. 11-10959

eighteen and stated that those who did not swear allegiance would be
disarmed—eighteen year olds were considered to have rights even if they were
being restricted equally with other suspect class members.21 Additionally, the
Loyalty Tests were applied to individuals on a case-by-case basis. Individuals
were not part of the suspect “group” unless they were considered disloyal by
virtue of their conduct. Finally, while certain laws prevented discharging guns
at certain times or using them in an especially dangerous manner such as “fire
hunting” (where participants were likely to hurt themselves needlessly),22 such
laws did not interfere with the self-defense “core” of the right. The panel’s
reference to gunpowder storage laws is also misplaced, as those regulations only
applied to the amount that was in excess of what an individual could physically
possess. Each person still kept a significant amount of powder.23
      The panel also recites multiple, and wholly inapt, examples of gun
restrictions against 18- to 20-year olds as “longstanding” regulations that detract
from the core Second Amendment right of 18- to 20-year olds even though they
do not “boast a precise founding-era analogue.” 

. First,
using the 1968 Omnibus Crime Control gun regulations against this age group
to contradict the original meaning of the Second Amendment is contrary to
Heller. Second, drawing analogies between this age group and felons and the
mentally ill is not only offensive but proves too much. Heller acknowledged the
“longstanding” prohibitions against firearms possession by these two groups, but
it did not state or imply that such limited class-based restrictions could be
projected on to other classes in order to limit their core Second Amendment

      21
        In Massachusetts, for example, the age cut-off was sixteen in 1775. See Ch. VII,
1775–1776 Mass. Acts. at 31. In Pennsylvania, it was eighteen. See Penn. Test Act of 1777.
      22
           Cramer, supra note 6, at 30–34.
      23
           Cornell & DeDino, supra note 19, at 510–12.

                                             16
                                           No. 11-10959

right.        Third, the truth is that prohibitions on felons are even more
“longstanding” than the panel acknowledges. Until rather recently, historically
speaking, felons incurred the death penalty; regulations on gun ownership by
felons was, therefore, a non-issue.24 Indeed, early in the Republic, felons were
stripped of their rights to own anything, even, and perhaps, especially, a gun.25
Also simply wrong is the assumption that the Supreme Court’s reference to
“longstanding” gun regulations entitles a circuit court panel to evolve class-based
Second Amendment restrictions contrary to the Amendment’s original scope. If
this is so, then Heller and McDonald have no point.
         The panel’s strongest case for narrowing core Second Amendment rights
relates to “longstanding” limits on young adults’ firearms access. In some states
eighteen-to-twenty-year-olds have been prohibited from possessing, carrying,
and purchasing certain types of weapons for over a century.                       The panel’s
argument is overstated, though. At footnote 14, the panel cites the laws of many
different states and territories to bolster its claim that “arms-control legislation”
affected late teenagers. This is accurate as to a few states—D.C., Maryland,
Mississippi, Wisconsin, and Wyoming each prohibited the sale of pistols
specifically to those under twenty-one—but there are significant problems in the
treatment of other states’ laws. The earliest law cited is from Alabama in 1856,
where the state prohibited pistol and other weapon sales to male minors only.26


         24
          See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 MICH. L. REV. 204, 266 (1983) (“Felons simply did not fall within the benefits
of the common law right to possess arms. That law punished felons with automatic forfeiture
of all goods, usually accompanied by death. . . . All the ratifying convention proposals which
most explicitly detailed the recommended right-to-arms amendment excluded criminals and
the violent.”).
         25
         Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminologi-
cal Considerations, 60 HASTINGS L. J. 1339, 1360–62 (2009).
         26
              1856 Ala. Acts 17 (“That any one who shall sell or give or lend, to any male minor,

                                                 17
                                          No. 11-10959

The Nevada statute cited by the panel only prohibits those under twenty-one
from concealed carry of pistols.27 Other state statutes reveal a clear bias during
the late 1800s against teenage males. In Illinois,28 Iowa,29 Kansas,30 and
Missouri,31 the age of majority was twenty-one for males but was eighteen for
females. Additionally, in Texas, for example, a female was not a minor once
married32 and in Iowa any married person was of age (and this in a time when
the average age of marriage was quite young). Such gender and marital bias,
which cannot stand in today’s society, undermines the conclusion reached by the
panel.
       With its merely general references to firearms regulations at the founding
and its only support in regulations against 18- to 20-year olds late in the 19th
century, the panel is unable to prove that banning commercial firearms sales to
late teens has any analogue in the founding era. Contrary to the panel’s
equivocation about the existence of a right of self-defense for 18- to 20-year olds
during the historical period most critical to Heller, the record is clear: the right
belonged (at least) to those the federal government decreed should serve in the
militia. Eighteen to forty-five year old white males fit this description. It is



a bowie knife, or knife or instrument of the like kind or description, by whatever name called,
or air gun or pistol, shall, on conviction, be fined . . . .”).
       27
         1885 Nev. Stat. 51. Like many laws against concealed carry promulgated in the past,
the law must be understood in the context of a society where open carry was permitted and
practiced; a prohibition on concealed carry was a minuscule burden on the right to bear arms.
       28
            1881 Ill. Revised Stat. 766 (Ch. 64, § I).
       29
            1884 Revised & Annotated Code of Iowa 595 (Ch. 4, § 2237).
       30
            1885 Laws of Kan. 558 (Ch. 67, § 3476).
       31
            1879 Miss. Revised Stat. 430 (Ch. 37, § 2559).
       32
            Batts’ Annotated Civil Statutes of Texas, Title LI, Chapter One, Art. 2552 (1895).

                                                 18
                                  No. 11-10959

untenable to argue that the core of the Second Amendment right to keep and
bear arms did not extend to 18- to 20-year olds at the founding.

III.   The Appropriate Level of Scrutiny

       Had the panel correctly applied Heller’s historical analysis, it would have
concluded that prohibiting a class of law-abiding adult citizens from purchasing
“the quintessential self-defense weapon,” 

, 128 S. Ct. at
2818, interferes with core Second Amendment rights. Whether the interference
is unconstitutional depends on further comparison of the goals and means of the
government’s regulations with the limitations imposed on 18- to 20-year olds.
We know from Heller that rational basis analysis cannot apply, and we further
know that the D.C. ban on handgun possession by all law-abiding adults fails
under any conventional standard of scrutiny. 

S. Ct. at 2817. We
have here a class-wide, age-related ban on the purchase of handguns from
federally licensed firearms dealers. This is not an outright ban on the age
group’s access to guns, or even handguns, but it is a serious impediment to their
participating in the lawful market and, for 18- to 20-year olds not living at home,
it may effectively ban lawful possession of handguns.         Denying access to
handguns in this manner must be viewed as coming close to banning their legal
possession by the age group in question, contrary to the rights they possessed
at the founding.

       Because the panel struck an agnostic pose toward the historical rights of
this age group, and because the panel inappropriately considered as
“longstanding” the regulations that have existed since 1968, i.e. for less than
twenty percent of our history, the panel instead placed the weight of its analysis
on the level of scrutiny to apply and then applied “intermediate scrutiny” of a
very weak sort. The panel’s level of scrutiny is based on an analogy between


                                        19
                                  No. 11-10959

young adults and felons and the mentally ill, as if any class-based limitation on
the possession of firearms justifies any other, so long as the legislature finds the
suspect “discrete” class to be “dangerous” or “irresponsible.” On such reasoning,
a low level of scrutiny could be applied if a legislature found that other
groups—e.g. aliens, or military veterans with PTSD—were “dangerous” or
“irresponsible.” In any event, it is circular reasoning to adopt a level of scrutiny
based on the assumption that the legislature’s classification fits that level.

      Even when taken at face value, the panel’s reasons for adopting its
“intermediate scrutiny” test are flawed. First, contrary to the panel’s approach,
these federal laws cannot be shoehorned into the “conditions and qualifications
on the commercial sale of firearms,” a category of regulations presumptively
approved by Heller. That they affect commercial sales is not the point, because
nearly every regulation will affect commercial sales. These laws prohibit a class
of adults from purchasing a class of firearms, just as was the case in Heller.
Second, restating the Second Amendment right in terms of what IS LEFT after
the regulation rather than what EXISTED historically, as a means of lowering
the level of scrutiny, is exactly backward from Heller’s reasoning. Thus, the
panel erroneously says this is a “bounded regulation”; we would not say a
content-based speech restriction is “bounded” just because it only barred speech
on one topic. Third, stating that young adults will “grow out of” their disability
from purchasing firearms cannot limit the scope of infringement on their
pre-existing constitutional rights. This is no different than saying they may be
disabled from exercising constitutionally protected speech until they’ve attained
a “responsible” age; this cannot be the law for 18- to 20-year olds. Cf. Brown v.
Entm’t Merchs. Ass’n, 

, 2736 n.3 (2011).

      Despite these systemic flaws in the panel’s logic, there is currently a
debate about how to assess the level of scrutiny courts apply to regulations that

                                        20
                                   No. 11-10959

infringe on gun ownership.33 I need not stake out a definitive position on the
conflicting views, however, because under “intermediate scrutiny” as it has
conventionally been applied in the First Amendment context, these regulations
do not fulfill their purpose in relation to the burdens they manifestly impose on
adult, law-abiding citizens.

IV.   Applying the Proper Level of Scrutiny

      The panel uses a rather rough means-ends calculation to uphold these
federal regulations. The panel recites at length Congress’s determinations that
violent crimes are disproportionately perpetrated by young adults, that young
adults often use handguns in the crimes, and therefore young adults should be
excluded from the commercial handgun market. QED. As the panel notes,
Congress need not address every problem in a statute—e.g., by also outlawing
unregulated legal sales of handguns to minors—when it legislates. Buckley v.
Valeo, 

(1976). Nevertheless, under a First Amendment analogy,
which Heller seems clearly to support, the legislature’s objective must be
narrowly tailored to achieve its constitutional purpose. Real scrutiny is different
from parroting the government’s legislative intentions. The First Amendment
test for intermediate scrutiny allows a “content-neutral regulation” of speech to
be sustained if it “advances important governmental interests unrelated to the
suppression of free speech and does not burden substantially more speech than
necessary to further those interests.” Turner Broad. Sys. Inc. v. FCC, 

, 189, 

(1997) (citing United States v. O'Brien, 

,

(1968)).

      Transposing the First Amendment standard to this case, heightened


      33
         Compare Judge Ginsburg and Judge Kavanaugh in Heller II, 

; Judge
Sykes in Ezell, 

; and Judge Posner in Moore, 

.

                                         21
                                  No. 11-10959

scrutiny can be conducted in the following, somewhat abbreviated, manner.
First, the young adults from 18 to 20 are within the originalist core protection
of the Second Amendment’s right to keep and bear arms. As far as possible,
their rights should be equal to those of fellow citizens 21 and older. Because
there is no originalist support for reducing their rights, the government’s
regulations must be closely tailored to address a real need with a real potential
solution.

      Congress passed a ban on commercial market sales to young adults in
order to address the perceived greater likelihood that such firearms would be
used in criminal activity. There is an important governmental interest in
reducing violent crime. Congress’s ban, however, fails to achieve its goals in two
respects. Factually, with forty years of data on these regulations, it is known
that the sales ban has not actually advanced this government interest. In fact,
as the panel concedes, the share of violent crime arrests among the 18- to
20-year age group has increased, and the use of guns by that group is still
disproportionately high. Further, the ban perversely assures that when such
young adults obtain handguns, they do not do so through licensed firearms
dealers, where background checks are required, see 18 U.S.C. § 922(t), but they
go to the unregulated market. Legally, the ban does not square with Craig v.
Boren, 

, 

(1976), in which the Supreme Court
invalidated, as discriminatorily overbroad, Oklahoma’s law that treated young
males and females differently in the ability to purchase 3.2% beer. The state
justified the distinction based on an alleged connection between young males’
(under 21) drinking and their DUI arrests. The Court derided the state’s most
persuasive statistics, which showed only 2% of males in the affected age group
had been arrested: “Certainly if maleness is to serve as a proxy for drinking and
driving, a correlation of 2% must be considered an unduly tenuous ‘fit.’ ” 

11-10959

. NRA’s Petition for Rehearing En Banc here recites that
only 0.58% of 18- to 20-year olds were arrested for violent crimes in 2010. See
NRA Pet., fn. 1. If the “fit” of 2% was so inaccurate as to be unconstitutional in
Craig, how can a “fit” of less than 1% be upheld in regard to the alleged
criminality of 18- to 20-year olds?

                                   CONCLUSION

      Congress has seriously interfered with this age group’s constitutional
rights because of a class-based determination that applies to, at best, a tiny
percentage of the lawbreakers among the class. Of course, the lawbreakers
obtain handguns, but the law-abiding young adults are prevented from doing so,
which adds an unusual and perverse twist to the constitutional analysis. I
stress again the panel’s incredibly broad language approving these restrictions.
The class is “irresponsible”; the Second Amendment protects “law-abiding
responsible adults”; the Second Amendment permits “categorical regulation of
gun possession by classes of persons” (citing 

) irrespective
of their being within the core zone of rights-holders; and finally, “Congress could
have sought to prohibit all persons under 21 from possessing handguns—or all
guns, for that matter.”

      If any of these phrases were used in connection with a First Amendment
free speech claim, they would be odious. Free speech rights are not subject to
tests of “responsible adults,” speakers are not age-restricted, and class-based
abridgement of speech is unthinkable today. Even if it is granted that safety
concerns exist along with the ownership of firearms, they exist also with regard
to incendiary speech. Some reasonable regulations are surely permissible,34 but

      34
         There are alternatives. Background checks occur when firearms are purchased in the
licensed market. Other conceivable restrictions might include assuring responsible use of
handguns, or prescribing parental notification of purchases.

                                            23
                                 No. 11-10959

the panel’s approval of banning young adults from the commercial and federally
regulated market for “the quintessential self-defense weapon” is class-based
invidious discrimination against a group of largely law-abiding citizens.

      I respectfully dissent from the denial of rehearing en banc.




                                      24