Guns, Young People, and Overturning Precedent

Last week, the Fifth Circuit, continuing to issue decisions likely to obtain further review in the Supreme Court, struck down a federal firearms law that prohibited selling handguns to 18-to-20 year olds. The unanimous decision in Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,[1] suggests a thing or two about appellate advocacy.

In 2012, the same circuit had upheld the same law, rejecting the arguments that succeeded this time. The new decision was written by the author of a dissent from denial of rehearing en banc in the 2012 case, Judge Edith Jones. She wrote that the earlier ruling was “inconsistent” with the Supreme Court’s more recent Second Amendment decisions in New York Rifle & Pistol Ass’n, Inc. v. Bruen,[2] and United States v. Rahimi.[3]

Normally, a panel of the Fifth Circuit cannot overrule an earlier panel’s decision absent an intervening change in the law such as a statutory amendment or a ruling from the Supreme Court or the Fifth Circuit sitting en banc.[4] The Fifth Circuit refers to this well-established practice as the “rule of orderliness.”[5] In the new decision, Judge Jones clearly indicated that the intervening U.S. Supreme Court rulings effectively overruled its 2012 decision. If it were unclear and the panel did believe the 2012 decision was flawed, its authority would have been limited to inviting a petition to rehear the case en banc.[6] Last week’s panel found that unnecessary.

On this point, however, there is good reason to question that conclusion and seek rehearing en banc, although it may well result in affirming the decision due to the current make-up of that court. The earlier decision, Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,[7] had found that the restriction on people under 21 years old was “consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment’s protection” and supported by considerations of public safety.[8] It surveyed “founding-era thinking” and “the views of various 19th-century legislators and courts,” as well as congressional findings that the age group selected “tend to be relatively immature and that denying them easy access to handguns would deter violent crime.”[9] The United States, defending the statute in the current case argued in its brief, that “NRA’s detailed review of the historical record shows that the commercial sale restrictions satisfy Bruen’s historical standard.” U.S. Br. 15.

The NRA decision, then, relied on precisely the type of historic evidence that Bruen required. There was no change in the analytical framework that the Fifth Circuit employed in 2012. The only difference, then, was a different set of judges who discounted the history that the first panel found decisive. Because what happened was not a change in the law as much as it was a change in the panel’s views of what counts for applying the same rule of law, the overruling would seem to violate the rule of orderliness.

Lesson one, then, is when the rule of orderliness applies and how it may be used.

The statute invalidated was the 1968 Omnibus Crime Control and Safe Streets Act. Among other things, the Act prohibited Federal Firearms Licensees from selling handguns to 18-20 year olds. In last week’s decision, the court concluded that the Second Amendment “includes 18- to 20-year-old individuals among ‘the people’ whose right to keep and bear arms is protected.”[10]

Bruen established a new framework for evaluating Second Amendment claims, employing the “history and tradition” version of originalism. It held that New York’s more than century-old law that prohibited carrying handguns in public, even if concealed, was unconstitutional. That approach places the burden on the government to justify its law implicating the Second Amendment as “consistent with the Nation’s historical tradition of firearm regulation.”[11] Although New York proffered a number of historical antecedents it claimed support the law’s validity, the Bruen Court rejected their relevance because that “handful of late-19th  century” exemplars provided “little evidence of an early American practice of regulating public carry by the general public.”[12] Instead, the Court relied on the continuous practice “stretching from medieval England to the early 20th century,”[13] where people were largely free to carry their firearms as they pleased.

Bruen was justly criticized in dissent by Justice Breyer as being selective in its choice of historical precedent, and by others for taking the position that state legislatures acting under the shadow of the Second Amendment both best understood the scope of its constitutional reach and chose to enact the maximum constitutional limits consistent with the Amendment at the time they enacted laws, fully anticipating the issues it could pose down the line. In other words, the theory appeared to defer to the judgment of 18th and 19th century legislators as constitutional gurus who had exercised their maximalist authority. Such a position is easily rejoined by the observation of Gideon J. Tucker about how legislation proceeds in 1866: “No man’s life, liberty or property are safe while the Legislature is in session.”[14] He hardly endorsed any concession of constitutional prowess.

Two years later, in a case arising from the Fifth Circuit, the Court faced an issue in how to apply Bruen. In Rahimi, a man challenged a federal statute that prohibited individuals subject to a domestic violence restraining order from possessing a firearm if he represents a credible threat to certain others. The Fifth Circuit invalidated that statute, too, as inconsistent with the Nation’s historical tradition of firearm regulation. The Supreme Court reversed, 8-1. Asserting that some courts have misunderstood Bruen’s methodology and that it was “not meant to suggest a law trapped in amber,” the Court held that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” for to hold otherwise would suggest the Second Amendment only protects a “right only to muskets and sabers.”[15] Even so, the Court undertook a history-and-tradition analysis, giving analogous historic gun regulations greater play in the joints than it had found acceptable in Bruen. As a consequence, the Court said that in its Rahimi ruling, that federal law could bar a domestic abuser from possessing a firearm without violating the Second Amendment consistently with Bruen. The one justice to disagree with that holding and to agree with the Fifth Circuit that the law must be invalidated: Justice Thomas, the author of Bruen.

In the new Fifth Circuit case, the government defended the statute, much as New York defended its law in Bruen, by pointing to earlier regulations it claimed were analogous. One came from colonial times; three others became law between 1829 and 1868. The Fifth Circuit found these unpersuasive: “One brief pre-ratification aberration and a handful of post-ratification examples do not outweigh the consistent approach of all states—including Virginia—where the minimum age of eighteen prevailed at or immediately after ratification of the Second Amendment,” noting that most states considered 18 year-olds eligible to serve in the militia and carry arms.

The government also contended that 19 states enacted laws between 1856 and 1897 that limited gun ownership among the relevant age group, but the court quoted Bruen to say that “courts must “guard against giving [such] postenactment history more weight than it can rightly bear,” and “that not all history is created equal.” Bruen, 597 U.S. at 34. 35. It found the availability of guns, regardless of age, widespread during the ratification period and that fact sufficed to invalidate the law so that the text of the Second Amendment, which did not limit access by age had to be vindicated. In the end, the Fifth Circuit found more fodder for its views in Bruen than in Rahimi.

Although the new administration’s views on the Second Amendment likely align with the Fifth Circuit, the invalidation of a federal law is certworthy fodder for the Supreme Court,[16] even if someone else must be appointed to defend the law. As is often the case in appellate advocacy, existing precedent is difficult to reconcile. Bruen points in one direction, and Rahimi provides grounds for a potentially opposite conclusion. Why was it that the Court (and historic precedent) allowed a prohibition on domestic abusers to survive constitutional scrutiny? It was plainly because there was a cognizable and substantially certain risk that accompanied the availability of guns for that category of individual. Can a generalized assumption that a particular age group, eligible to serve in the military, also qualify as having a heightened risk? Is it enough that 18-20 year olds commit a disproportionate number of gun homicides? Or is this an opportunity to attack the history-and-tradition approach that Bruen adopted?

Lesson number two is that, even with Supreme Court and Solicitor General sentiment likely to side with the Fifth Circuit, there are appellate strategies that could help reach a different result. I should also note that the issue decided in Reese is also under advisement in the Fourth Circuit.

[1] 23-30033, 2025 WL 340799 (5th Cir. Jan. 30, 2025).

[2] 597 U.S. 1 (2022).

[3] 602 U.S. 680 (2024).

[4] Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[5] Id.

[6] Id.

[7] 700 F.3d 185 (5th Cir. 2012),

[8] Id. at 203.

[9] Id.

[10] Reese, 2025 WL 340799, at *13.

[11] Bruen, 597 U.S. at 38.

[12] Id.

[13] Reese, 2025 WL 340799, at *4 (characterizing Bruen).

[14] Final Accounting in the Estate of A.B., 1 Tucker 248, 249 (N.Y. Surr. Ct. 1866). 

[15] Rahimi, 602 U.S. at 692.

[16] See Iancu v. Brunetti, 588 U.S. 388, 392 (2019).