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Legal debates between leftists and conservatives are rarely as interesting as “intramural” debates between conservatives. The Eleventh Circuit’s recent en banc decision in National Rifle Association v. Bondi illustrates the point. By a vote of 8-4, the court held that a Florida statute prohibiting the purchase of firearms by individuals between the ages of 18 and 21 does not violate the Second Amendment. The majority opinion was written by Chief Judge William H. Pryor, Jr., while Judge Andrew L. Brasher wrote the principal dissent. Both are able and principled jurisprudential conservatives, and Judge Brasher is a former law clerk for Chief Judge Pryor.

The dispute between these judges, which was solely about the proper application of the Supreme Court’s decisions in Bruen (2022) and Rahimi (2024), illustrates the problematic nature of that Court’s novel history-and-tradition test. As relevant here, the new test requires the government to “affirmatively prove” that a challenged regulation “is consistent with this Nation’s historical tradition of firearms regulation.” In the founding era, there were virtually no firearms regulations at all, so courts are now required to identify our tradition by studying a history that consists largely of blank pages. The challenging nature of this task was manifest when Bruen was decided and even before that time. Moreover, internal tensions arising from Bruen surfaced in Rahimi, where Bruen’s author, Justice Clarence Thomas, dissented.

Bruen and Rahimi require a modern regulation like Florida’s to be similar to a historical precursor in two respects: the purpose for which it was adopted and the nature of the burden it places on the right to keep and bear arms. The NRA v. Bondi opinions total 169 pages, including several concurrences and dissents. This brief essay will focus on the principal arguments in the Pryor and Brasher opinions.

The majority’s analysis begins with the historical fact that a person during the founding era was generally an infant in the eyes of the law until age 21. One consequence was that contracts with such minors were voidable, except when the minor contracted for necessities such as food, clothing, and lodging. Firearms apparently did not fall into this exception, so the unavailability of credit created an obstacle to purchasing guns. The reason for this common law rule was that individuals younger than 21 were presumed to lack the maturity and judgment that would make it safe to emancipate them from the control of their parents or guardian. Consistent with this rationale, the law permitted minors to possess firearms that they received as a gift. Similarly, the law in many states affirmatively required parents to supply their minor sons with the firearms they were required to have for their militia duties.

Chief Judge Pryor argues that the Florida statute was adopted for the same purpose as the common law rule, namely to protect against the immaturity and deficient judgment that the common law imputed to minors. The Florida statute also imposes a similar burden because it merely restricts an individual’s ability to purchase firearms. As in the founding era, Floridians under the age of 21 may receive firearms as gifts.

Judge Brasher’s dissent rejects this analysis. First, Bruen requires courts to identify a tradition of “firearms regulation,” but the common law of contracts was no such thing. The indirect effect of contract doctrine may have made it difficult for minors to find someone willing to extend credit to them, but it did not prohibit contracts to buy firearms. Anyone who trusted a minor to honor his promise was free to extend credit, and in any event the common law rule posed no obstacle to cash purchases.

Judge Brasher stresses that the purpose of the common law rule was to protect minors from harming themselves by making improvident promises. The purpose of the Florida statute is completely different: to prevent violence like the massacre that provoked the legislature to enact it. The fact that some founding-era states required parents to supply their minor sons with militia weapons does not imply a policy against the purchase of firearms, by young militiamen or anyone else. If anything, it simply reflected the fact that an unemancipated man often could not afford to buy a gun. Furthermore, a federal law adopted shortly after the Second Amendment provided that beginning at age 18, each militiaman must “provide himself with” an appropriate weapon. As Judge Brasher put it, “a legal obligation to acquire a private firearm necessarily presupposes the legal ability to acquire one.”

The fundamental divide between these two judges appears to result from their different views of the relationship between the historical record and the purpose of the Second Amendment. Bruen emphasized the importance of using objective historical data to determine the scope of the protected right. This was aimed primarily at preventing the use of “tiers of scrutiny” analysis to rubberstamp dubious regulations, which is what the lower courts began doing after the Heller decision in 2008. Chief Judge Pryor’s focus on this aspect of Bruen is illustrated by his claim that the age of majority for purposes of the Second Amendment (though apparently not other constitutional provisions) must be 21, now and forever, because of incidental effects arising from 18th-century contract doctrine.

But Bruen also recognized that identifying the original meaning of the Second Amendment will frequently require attention to its purpose, which is to protect the natural or inherent right of self-defense. That’s why the government must usually prove both that the historical and modern regulations share a similar purpose and that they put a similar burden on the constitutional right.

Judge Brasher emphasizes that individuals between the ages of 18 and 21 are adults under Florida law. They are not subject to their parents’ control, and they are not under their parents’ protection. Yet Florida’s statute would punish them with prison for doing something they had every legal right to do in 1791. This infringement on the rights of law-abiding adults, some of whom may desperately need a gun for self defense, is inconsistent with the Second Amendment’s purpose. The infringement is not justified by any founding-era tradition of firearms regulation, and the indirect effects of an obsolete common law doctrine are no substitute for such a tradition.

The Supreme Court has not resolved the tension that was created in Bruen, a tension that is reflected in the dispute between the Eleventh Circuit judges. If the jurisprudentially conservative Justices settle on the approach taken by Chief Judge Pryor, the ultimate effects may not be much different from those produced by the deferential “tiers of scrutiny” approach that Bruen repudiated. For better or worse, the Supreme Court appears to be headed in that direction.