Age Restrictions On Gun Sales And The Law
Is it legal for retail businesses to restrict gun sales based on age? The short answer appears to be yes.
Over the past several days, several major retailers such as Dick’s Sporting Goods, Walmart, Kroger, and L.L. Bean have announced that they will no longer sell any type of weapon to anyone under 21 years of age regardless of what the applicable law might be. That’s led several people to ask whether this is permissible under the law, and Eugene Volokh has recently provided something of an answer:
[1.] Stores’ own age limits don’t violate the Second Amendment, because the Second Amendment limits only the government, not private companies. Likewise for the Equal Protection Clause (plus the Equal Protection Clause generally doesn’t forbid even governmental age classifications).
[2.] The federal Civil Rights Act doesn’t cover retail stores, and doesn’t cover age, so it doesn’t bar such policies, either.
[3.] But about a third of all states ban discrimination based on age in places of public accommodation, and some of those statutes may well ban refusal to sell guns to 18-to-20-year-olds. These laws vary from state to state, so I can’t speak to all of them; but the one I checked — Connecticut (the alphabetically first on the list) — does indeed seem to ban discrimination against 18-to-20-year-olds in retail sales, with no exception for guns.
[4.] Likewise, some cities and counties have similar ordinances (even if their states don’t); two I found, for instance, are Madison, Wisconsin and Broward County, Florida. (I looked them up just because I remembered from other research that they have broad antidiscrimination ordinances.) Seattle, on the other hand, bans age discrimination, but apparently only against people 21 and above, again without regard to whether the store sells guns or anything else.
The short answer then is that the question of whether or not it’s legal for a retail establishment to refuse to sell long guns to people under 21 depends on where you’re located. Federally speaking, there is no relief in the law since Federal Civil Rights laws don’t apply to retail stores and don’t apply to age. As for the state laws, it largely depends on what level of scrutiny the courts in those states would apply to the policy in question. Generally speaking, discrimination based on race and ethnicity is subjected to the highest level of scrutiny while discrimination based on other factors, such as gender, age, and other criteria are subjected to lower levels of scrutiny. Traditionally, age has been held to be covered by the lowest level of scrutiny, often referred to as the “rational basis” test. 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, one can make the argument that businesses have a rational basis to discriminate based on age when it comes to the sale of something as dangerous as a weapon. In some sense, these policies by retailers can be seen as similar to the MPAA rating system utilized by movie theaters to restrict access to certain movies based on age. While it’s true that in some states, there are laws on the books that bar people under the age of 18 from being admitted to movies that contain explicit sexual content, thus qualifying them for what is now known as the NC-17 rating and what used to be known as the “X” rating, as a general rule this is an entirely private rating system that the film industry has adopted and which it enforces on its own. While I admittedly have not done a complete search around the nation, I am unaware of any successful legal challenge to the MPAA rating system and the policy of excluding people under 17 from seeing an R rated movie without an adult accompanying them. If such a lawsuit were brought, though, I suspect it would be unsuccessful, and I suspect the same would be the case with a lawsuit regarding the decision by these retailers to not sell any weapons to anyone aged under 21.
All of this will be moot, of course, if Congress or state legislatures act to change the law regarding gun sales so that long gun sales to people under 21 becomes illegal just as the sale of handguns to such persons are currently illegal. On the Federal level, there appears to be support for raising the minimum age from the President and from Senators and Members of Congress on both sides of the political aisle, but it’s unclear that Congress will be strongly motivated on that or any other issue related to gun control at any point this year. At the same time, though, Governors on both sides of the aisle have voiced support for the idea of changing state law on the issue and it seems likely that many of those states will actually follow through on action regardless of what happens at the Federal level. If and when that happens, then any legal claims of age discrimination would appear to be moot, and lawsuits against the laws restricting gun sales based on age are unlikely to be well-received by courts.
None of this is set in stone, of course, and my analysis could prove to be wrong in the face of a legal challenge, As it stands, though, it appears clear to me that store policies restricting gun sales based on age would be likely to withstand legal scrutiny.