A recent Second Amendment challenge to a law restricting the sale of guns to adults under 21 will be dismissed for “mootness” because the plaintiffs have since aged out.

On September 22, the Fourth Circuit Court of Appeals vacated its own earlier decision that federal criminal statutes prohibiting federally licensed firearms dealers from selling handguns and handgun ammunition to people between 18 and 20 years of age violated the Second Amendment.

The original opinion, issued by a divided panel, had concluded that the tie between the statutes and the government’s interest in preventing crime was not strong enough to survive intermediate scrutiny. Now, the decision has been vacated for mootness, and the case will be remanded to the trial court with direction to dismiss.

A Moot Point

The plaintiffs were Tanner Hirschfeld and Natalia Marshall, two Virginia residents who unsuccessfully tried to purchase a firearm when they were 20 and 18 years old, respectively. Hirschfeld turned 21 before the Court of Appeals ruled, and his claims were rendered moot because he was no longer affected by the laws. However, the appeal was originally allowed to proceed because Marshall had not yet turned 21.

Anticipating a second mootness problem, the plaintiffs’ attorney, Elliot Harding, asked the District Court to join more parties the day before the youngest plaintiff’s 21st birthday. However, with the case already on appeal, the District Court lacked jurisdiction to grant the motion.

A few days later, Harding then filed the equivalent motion in the Court of Appeals, moving that court to add more parties where the lower court could not. By this time, however, both plaintiffs were 21, mooting the case; the appellate court thus denied the motion, stating that they could not join new parties in a motion filed after the case was moot. but both plaintiffs had already turned 21 when he filed the motion. Harding thus failed to save his clients’ case at the eleventh hour.

Gun Restrictions Saved by the Skin of Their Teeth

The criminal statutes consequently survived the constitutionality challenge—but just barely. Had Harding moved to add more parties before the notice of appeal, had the youngest plaintiff been just two months younger when the complaint was filed or had COVID-19 not disrupted the schedule of federal courts, the story may have had a different ending. Harding, on his part, says he is not giving up, and that “[o]ne way or another, these laws are going to continue to be challenged.”

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