In a small victory for the Second Amendment to the U.S. Constitution, the U.S. Department of Justice (DOJ) released a memo last week declaring that a federal ban on selling handguns to 18-20-year-olds is unconstitutional and unenforceable.
The DOJ’s Decision
Since the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, federal law has prohibited federally licensed firearms dealers from selling handguns to adults younger than 21. The DOJ’s September 18 memo, authored by Assistant Attorney General T. Elliot Gaiser, who leads the Office of Legal Counsel, declared that “[18 U.S.C.] sections 922(b)(1) and (c)(1) are presumptively unconstitutional.”
The memo further concluded that “Section[s] 922(b)(1) and (c)(1) may not be enforced to impose criminal penalties on dealers who sell handguns to a class of law-abiding adults who, in nearly every other relevant respect, are members of the political community.”
In a separate statement, Gaiser noted that “eighteen-year-olds may vote, serve on juries, be drafted, and face adult criminal penalties, including capital punishment,” and highlighted how the federal statute violates the Second Amendment.
Gun-rights Groups Approve
In a September 18 email statement, Gun Owners of America celebrated the DOJ’s memo as “a huge win for the Second Amendment,” and noted that “millions of law-abiding Americans are denied access to their Second Amendment rights by this unconstitutional ban.” The pro-Second Amendment Firearms Policy Coalition approved of the DOJ’s decision, but urged the agency to widen its scope to cover ammunition. Not surprisingly, pro-gun-control organizations condemned the memo.
All Gun Control Is Unconstitutional
The DOJ is correct that the federal handgun ban for 18-20-year-olds is unconstitutional. In addition to blatantly violating the Second Amendment’s declaration that “the right of the people to keep and bear Arms, shall not be infringed,” the constitutional state militia — the focus of the first part of the Second Amendment — undoubtedly includes 18-20-year-olds.
Furthermore, the federal ban violates the U.S. Constitution’s enumerated powers. Nowhere in Article I, Section 8 is Congress given the power to regulate the possession or sale of handguns — or any firearms, for that matter. As James Madison noted in The Federalist, No. 45, the federal government’s powers granted by the Constitution are “few and defined.” In other words, even if the Second Amendment were repealed, the federal government would have no constitutional authority to enact gun control.
The DOJ’s memo is a good first step toward pushing back against federal gun control — and the agency can and should press on toward constitutional adherence.
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