Gun control measures are struggling to survive in lower courts in the wake of the Supreme Court’s ruling last year that firearm restrictions must align with the nation’s history when the Second Amendment was drafted — but at least one state law has survived.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld this month Florida’s ban on 18- to 20-year-olds purchasing firearms, reasoning that laws during the Reconstruction Era restricted 18- to 20-year-olds from buying pistols.

The Florida law permits young adults to carry firearms but bars them from purchasing such weapons at gun shops, a restriction that was enacted in the late 1800s, said the panel, which comprised Obama, Bush and Clinton appointees.

“Even though 18- to 20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests,” the 11th Circuit panel ruled. “And in the more than 150 years since Reconstruction began, guns have gotten only deadlier: automatic assault rifles can shoot sixty rounds per minute with enough force to liquefy organs.”

Amy Hunter, spokesperson for the National Rifle Association, which brought the lawsuit, said the lobbying group is considering whether to appeal the ruling.

However, Republican lawmakers in Florida have since introduced legislation that would lower the age for purchasing certain guns to 18.

Blue states, meanwhile, have moved in the opposite direction. Delaware, for instance, increased the age for buying most firearms from 18 to 21 in 2022, days after the Supreme Court issued its landmark decision.

The 11th Circuit’s decision on young adults and firearms clashes with those of other courts.

Texas had a law barring 18- to 20-year-olds from obtaining a license to carry a handgun. But a federal judge said that restriction ran afoul of the Second Amendment, as it limited their right to self-defense outside their homes.

“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition,” Judge Mark Pittman, a Trump appointee, said in a ruling that was issued roughly two months after the Supreme Court’s decision.

Texas initially had planned to appeal the decision but later backed off.

Bruen aftermath

The Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, issued in June of 2022, has led to a tsunami of gun control measures being halted or challenged by gun rights activists. In Bruen, the justices struck down New York’s licensing scheme that required individuals to show a special need to carry a gun in public.

The high court said the government must show that a gun control measure is consistent with America’s founding — or similar laws at the time — to meet Second Amendment guarantees. The justices wiped away New York’s law and measures in five other states that placed conditions on concealed weapons permits.

Justice Clarence Thomas’ majority opinion served as a lecture, directing judges to start taking the high court’s Second Amendment jurisprudence seriously. He said courts must determine whether a firearm restriction would have seemed reasonable to the founders who crafted and ratified the Second Amendment. If not, the law must yield to the Constitution.

The ruling sent shock waves through court systems and gave gun rights activists new ways to challenge state and federal measures restricting the use of firearms.

Alan Gottlieb, founder of the Second Amendment Foundation, has more than 40 pending lawsuits in the wake of Bruen. His group is also awaiting regulations from the Biden administration following the president’s executive order March 14 aimed at increasing background checks, weighing whether the group will launch legal challenges to it as well under the Bruen holding.

Mr. Gottlieb said his organization has focused on four different classifications of laws and ways to dispute them:

⦁ Age restrictions, carry laws and assault weapons bans being challenged before the Bruen ruling.

⦁ Cases filed before Bruen currently in search of new plaintiffs.

⦁ New cases focused on insurance mandates and training requirements.

⦁ New lawsuits on restrictions like New York’s licensing law the state enacted following the high court’s ruling.

New York doubled down by trying to designate nearly every public area in the state a gun-free zone, effectively doing away with the right to carry. That post-Bruen move is working its way through the courts.

Mr. Gottlieb said his organization’s biggest hurdle is finding plaintiffs brave enough to challenge the gun laws.

“They don’t want the publicity,” he said.

‘Unpredictable’

Mr. Gottlieb added that the Second Amendment Foundation has stayed away from targeting gun control laws focusing on crimes.

He pointed to a recent ruling from the U.S. Court of Appeals of the 5th Circuit that said it is unlawful to ban the possession of a firearm by anyone under a court order for domestic violence, such as stalking, harassing or threatening an intimate partner.

That ruling left gun control advocates startled over what the fallout from Bruen could entail.

“I can’t square that decision with the actual danger that women and police officers face from armed domestic abusers and I don’t believe the founders of our nation would want courts to ignore this danger when applying the Constitution they wrote,” said Sen. Richard Durbin, Illinois Democrat and chairman of the Senate Judiciary Committee.

“The chaos the Bruen decision has caused is predictable,” Mr. Durbin said during a March hearing.

The Justice Department has asked the high court to review the 5th Circuit’s ruling, arguing that firearms and domestic conflicts are a “deadly combination” and the Second Amendment gives the government authority to disarm dangerous individuals.

“More than a million acts of domestic violence occur in the United States every year, and the presence of a firearm increases the chance that violence will escalate to homicide,” the U.S. solicitor general said in the petition.

It would take four justices to vote in favor of reviewing the issue for the case to be heard.

Shira Feldman, litigation counsel at the pro-gun control group Brady United, said a few district courts have upheld post-Bruen restrictions on assault weapons, guns without serial numbers and felons possessing firearms.

But she acknowledged that circuit courts haven’t had the final say and suggested the high court will eventually need to step in and clarify its ruling.

“We at Brady think that the Supreme Court decision in Bruen left a lot of room for Constitutional gun regulation, but it also isn’t the clearest in terms of the standards that it lays out. So, we do think that lower courts are often getting confused,” Ms. Feldman said.

Policy experts have echoed the concern following the Bruen analysis, prompting lower courts to rule differently.

“More than 100 opinions have [been] issued since Bruen, which demonstrate how lower courts have struggled to apply Bruen to various modern laws, such as those regulating 3D-printed guns, large capacity magazines, obliterated serial numbers, and gun possession by domestic abusers. Though Bruen purported to constrain judicial decision-making through historical analogy, the post-Bruen case law highlights the risk that, in fact, the opinion has enabled judicial subjectivity, obfuscation and unpredictability.” said Southern Methodist University law professor Eric Ruben, who testified before Mr. Durbin’s committee.

Amy Swearer, senior legal fellow at the Heritage Foundation, who also testified before the senators, told The Washington Times that these various issues will take time to develop in lower courts.

“None of this is settled,” she said. “We are probably several months — if not several years — from seeing any of this being reliably settled in the lower courts.”

Ms. Swearer noted, however, that background checks, in particular, likely don’t clash with the historical legal analysis dictated by Bruen.

She pointed to footnote No. 9 in the court’s opinion that said gun licensing schemes in states that require background checks do not necessarily prevent an individual from carrying a firearm.

“I just don’t see Bruen overriding that,” Ms. Swearer said. “We are presuming background checks are fine.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.