Outside the Beltway

N.R.A. Sues Over New Florida Gun Law

Within hours after the new Florida gun law was signed by Governor Rick Scott, the National Rifle Association had filed a lawsuit seeking to strike it down.

Doug Mataconis · Saturday, March 10, 2018 · 14 comments

The ink from Governor Scott’s signature was barely dry on the new Florida gun control law yesterday when the National Rifle Association, to the surprise of nobody, filed a lawsuit challenging it, and specifically its ban on gun sales to anyone under 21, in Federal Court in Florida:

The National Rifle Association is suing the state of Florida after Gov. Rick Scott signed Senate Bill 7026 into law Friday, the first gun control legislation enacted in the state after the Parkland school massacre on February 14.

The NRA suit focuses on the part of the law that raises the minimum age to purchase a firearm to 21 from 18.

“This bill punishes law-abiding gun owners for the criminal acts of a deranged individual,” executive director of the NRA Institute for Legislative Action Chris W. Cox said. “Securing our schools and protecting the constitutional rights of Americans are not mutually exclusive.”

Seventeen people were killed at Marjory Stoneman Douglas High School when a 19-year-old man with a semi-automatic military-style rifle opened fire.

The lawsuit, filed in the Northern District of Florida, says the age minimum section of the new law violates the second and 14th amendments of the US Constitution.

The NRA argues people who are 18 years old are considered adults “for almost all purposes and certainly for the purposes of the exercise of fundamental constitutional rights.”

The organization also contends federal law already prevents many Americans 21 or younger from buying certain types of guns. Florida’s law unconstitutionally broadens those limits, the NRA says.

Florida Attorney General Pam Bondi, who is named as a defendant, said she was proud of the law.

“This bill is not perfect, and sadly it will not bring back the 17 lives lost in the horrific school shooting, but the safety of our children is not a political issue, it’s simply the right thing to do,” she said.

Bondi also lauded the students of Stoneman Douglas, many of whom have called for tougher gun laws.

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An NRA statement issued after the governor signed the law said the organization supports increased school security, fixing what it called a broken mental health system and keeping guns away from people who are mentally ill

“Preventing a responsible 20-year-old from purchasing the best tool for self-defense will not stop a deranged criminal intent on committing a crime,” the NRA said.

The fact that the lawsuit was filed so soon after the law was signed is likely an indication that the N.R.A. knew some time ago that it was going to lose the political battle over this in the state legislature and that Governor Scott was going to sign the bill into law as soon as it hit his desk. The pleading itself, which I’ve embedded below, is fairly straightforward and raises the argument that the law violates the rights of individuals between the age of 18 and 21 who would otherwise be eligible to purchase a weapon but for the law and contends that this violates both the Second Amendment to the Constitution and the Equal Protection Clause of the Fourteenth Amendment. Additionally, the lawsuit seeks to make the claim that the lawsuit violates the rights of young women in particular in that it bars them from purchasing a weapon even though they are over the age of 18 despite the fact that they are statistically less likely to be among those in danger of committing the kind of mass shooting such as the one at Marjory Stoneman Douglas High School last month. This unique argument is set forth in two separate part of the Complaints:

This ban particularly infringes upon, and imposes an impermissible burden upon, the Second Amendment rights of those NRA Members described above who are female. Females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting such as the one that occurred at Marjory Stoneman Douglas High School, or, for that matter, a violent crime of any kind. For example, in 2015, women in this age group accounted for only 1.8% of arrests for violent crime, while males in the same age bracket accounted for 8.7% of such arrests—and males between the ages of 21 and 24, who may lawfully purchase firearms under current law, accounted for 9.2%. See Federal Bureau of Investigation, Crime in the United States: 2015 tbls. 39 and 40, available at https://goo.gl/8pVWnb; see also BUREAU OF JUSTICE STATISTICS, WOMEN OFFENDERS at 2, 13 (2009) (female offenders responsible for only 14% of violent crimes, and only 10% of female offenders aged 18-20), available at https://goo.gl/3qAJXu. Regardless of its facial validity, Florida’s ban is therefore unconstitutional, void, and invalid as applied to women between the ages of 18 and 21

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This ban violates the equal protection rights of those NRA Members described above who are female. Females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting such as the one that occurred at Marjory Stoneman Douglas High School, or, for that matter, a violent crime of any kind. For example, in 2015, women in this age group accounted for only 1.8% of arrests for violent crime, while males in the same age bracket accounted for 8.7% of such arrests—and males between the ages of 21 and 24, who may lawfully purchase firearms under current law, accounted for 9.2%. See Federal Bureau of Investigation, Crime in the United States: 2015 tbls. 39 and 40, available at https://goo.gl/8pVWnb;  see also BUREAU OF JUSTICE STATISTICS, WOMEN OFFENDERS at 2, 13 (2009) (female offenders responsible for only 14% of violent crimes, and only 10% of female offenders aged 18-20), available at https://goo.gl/3qAJXu. Regardless of its facial validity, Florida’s ban is therefore unconstitutional, void, and invalid as applied to women between the ages of 18 and 21 because it restricts their fundamental right to keep and bear arms without any compelling justification.

This argument is, to say the least, unique in that I am unaware of it having been raised in any similar case in the past. On its face, in fact, it seems to be a rather obvious attempt to raise an extraneous issue that is completely unrelated to the lawsuit or the new Florida law in an effort to strengthen a case that, as I discuss later in this post, seems to be on rather weak legal grounds. In essence what the pleading seems to be trying to do here is turn a case that is based largely on age discrimination into a case based on gender discrimination, but that effort seems to me to be unlikely to succeed. The fact that women are less likely to commit crimes in general, or mass shooting type crimes in particular, doesn’t strike me as being particularly relevant or particularly compelling. If the age restriction section of the law is generally acceptable under the Constitution then there’s no reason why it shouldn’t apply equally to men and to women. Alternatively, if the age restriction is Constitutionally invalid then it is invalid as applied to everyone aged over 18 but under 21, not just women. I don’t expect this argument to make it very far in Court.

As for the rest of the Complaint, there is no real legal argument put forward in the document, but that’s typical for the initial pleadings in a lawsuit such as this. It won’t be until we get further into the litigation that we’re likely to see legal arguments from either side in support of either the N.R.A.’s legal arguments in support of its arguments or the arguments made by the State of Florida in defense of the new law. Based on existing law in this area, though, it seems as though Florida stands a good chance of ultimately being victorious in the case.

The Second Amendment claims, for example, seem to be rather weak in that it seems to be well-established even in the wake of the Supreme Court’s ruling in the landmark case District of Columbia v. Heller. In that case, of course, the Court ruled for the first time that the right protected by the Second Amendment was an individual right that was, at the very least, intended to protect an individual’s right to own weapons to defend themselves, their homes, and their families. As a result, the Court held that the District of Columbia’s restrictive law on handgun ownership violated the Second Amendment, and made the same ruling two years later in McDonald v. Chicago when it held that the rights protected by the Second Amendment also applied to the states via the Fourteenth Amendment. In making that ruling, though, the late Justice Antonin Scalia specifically noted that the right was not absolute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to 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 commercial sale of arms.We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

While the Court has not issued any subsequent rulings defining the exact contours of what is and is not an acceptable restriction under the Second Amendment, many Federal Courts have done so, and it does provide us with somewhat of a guide in determining how the age restriction is likely to be viewed by the courts that consider it while the case is pending. Over the ten years since Heller four separate Federal Courts of Appeal have upheld laws banning so-called “assault weapons,” was decided, for example, while others have upheld other restrictions such as waiting periods, concealed carry laws, and other laws that are arguably far more restrictive than the age restriction set forth in Florida’s law. The Supreme Court has declined to accept any of these cases for review, which seems to be at least somewhat of a tacit admission on the part of the Justices that there are currently not five Justices on the Court who would strike down such laws, or that there are even four who would accept such cases for review. Given that, it seems unlikely that the Florida law would fare any worse than the far more restrictive laws that were at issue in the cases that the Supreme Court declined to hear.

With respect to the Equal Protection Clause arguments raised by the N.R.A., these seem to be even weaker than its arguments under the Second Amendment. As a general rule, equal protection claims such as this are judged based on differing levels of scrutiny depending on the type of discrimination being alleged. Discrimination based on race and ethnicity, for example, is subjected to what is generally called “strict scrutiny,” which is the highest level of scrutiny available under the law. When strict scrutiny is applied to a law alleging discrimination, the relevant government authority must show that the law is (1) justified by a “compelling governmental interest,” (2) that the law is narrowly tailored to achieve that interest, and (3) that it is the least restrictive means available to achieve that objective. This means, of course, that most laws that are judged using a strict scrutiny standard fail to meet the requirements and end up being found to be unconstitutional. One step below strict scrutiny is a standard of review that has come to be known as intermediate scrutiny. Under this level of review, the jurisdiction defending the law being challenged must show that it furthers an important government interest by means that are substantially related to that interest. In the past, this level of scrutiny has been held to apply to gender-based discrimination, discrimination based on illegitimacy, and, in some cases, sexual orientation, although its worth noting that there is at least some support from lower-court rulings in the cases that dealt with challenges to bans on same-sex marriage that sexual orientation should be subjected to a somewhat higher level of scrutiny. Additionally, some states have established either through legislation or court rulings that discrimination based on sexual orientation should be evaluated based on a strict scrutiny standard. The lowest level of review is called the rational basis test. Under this level of review, a government defending a challenged law or policy is merely required to show that the law in question serves a legitimate government interest and that law in question is rationally related to achieving that interest. Needless to say, a law that is evaluated based on this standard will generally be upheld as long as the state can put forward a rational basis to support it.

As a general rule, laws that purport to discriminate based on age have been held to be subject to simply rational basis scrutiny. What this means is that a policy or law that discriminates based on age generally must past what is known as a “rational basis” review, meaning that it will be considered permissible as long as there is some rational basis for that law or policy. In the case of gun sales, it seems fairly clear that states and localities have a rational basis to discriminate based on age when it comes to the sale of something as dangerous as a weapon. This would seem to be especially true in light of the fact that it is already illegal under Federal law and the law of most states for anyone under 21 to purchase a handgun and that, until now, persons aged over 18 but under 21 have only been able to purchase weapons such as shotguns, hunting rifles, and other “long guns,” including so-called “assault weapons.” It should be noted, though, that the relevant Federal law does allow an individual under 21 but over 18 to acquire a handgun via a private sale or an intra-family transfer such as an inheritance. That law was upheld by the Fifth Circuit Court of Appeals in a 2013 ruling, which the Supreme Court declined to review. Taking this into account, the fact that Florida is now seeking to join other states that also ban people under 21 from being able to legally purchase any gun would seem to withstand scrutiny. After all, if the Federal Government can ban handgun sales to people under 21, there doesn’t seem to me to be any rational basis for saying that a state is forbidden from expanding that ban within their borders to include other types of guns.

As with any such challenge, of course, we’ll have to wait for further developments in this case, and in any other cases that may be filed challenging this new Florida law or other similar laws adopted by other states. As it stands, though, my guess is that the N.R.A. is likely to lose this case in the end.

Updated: This post was updated to include the information regarding the Fifth Circuit Court of Appeals decision to uphold the Federal ban on handgun sales to people under 21, which was helpfully provided by commenter Bob@Youngstown

Here’s the Complaint:

NRA v. Bondi et al by Doug Mataconis on Scribd