DOJ Says Under-21 Handgun Ban Unconstitutional

The Justice Department's own legal office just told the government it can't keep threatening gun dealers with prison for selling handguns to 18-to-20-year-olds.

Driving the news: The Office of Legal Counsel released a 49-page opinion on September 17, written by Assistant Attorney General T. Elliot Gaiser, concluding that 18 U.S.C. §§ 922(b)(1) and (c)(1) — the Gun Control Act provisions barring FFLs from selling handguns or handgun ammo to anyone under 21 — can't constitutionally be enforced against dealers who sell to law-abiding adults in that age bracket.

• The statutes stay on the books. OLC opinions don't repeal laws; they guide how DOJ enforces them.
• The reasoning: 18-to-20-year-olds are part of "the people" the Second Amendment protects, and handguns are the most commonly chosen self-defense arm in America.

The opinion leans hard on Bruen's text-and-history test. Adults in this age group can vote, sit on juries, sign contracts, face adult prosecution and get drafted. OLC's point: the government doesn't get to treat someone as a full citizen every time it wants something from him, then treat him as a child the moment he wants to defend himself.

The historical case: OLC dug into the Founding era and found the opposite of a disarmament tradition. Roughly 249 of more than 250 colonial and early state militia laws required militia service — and self-supplied muskets — from men 18 to 20. The Militia Act of 1792 enrolled citizens starting at 18. The generation that wrote the Second Amendment wasn't treating teenagers as a dangerous, disarmed class; it was arming them and telling them to show up.

OLC also dismantled the go-to argument courts have used to save under-21 bans: the common-law "infancy doctrine." That doctrine let minors void certain contracts to protect them from bad deals — it never banned firearm purchases, never criminalized merchants, and never blocked cash sales. Comparing that to a law that can send a dealer to federal prison for five years, OLC found, isn't a historical analogue. It's a stretch.

The statutes "may not be enforced to impose criminal penalties on dealers" who sell handguns to otherwise law-abiding adults between 18 and 20.

Yes, but: This isn't a court injunction, a repealed statute, or new ATF guidance for dealers on the counter. Sections 922(b)(1) and (c)(1) are still federal law today, and OLC's opinion doesn't spell out when or how ATF will update its instructions to FFLs. Dealers who sell to 18-to-20-year-olds before that guidance lands are still rolling the dice. State laws restricting purchases by adults under 21 also aren't touched by this opinion at all, and several states have their own versions on the books.

The circuit split: The Fifth Circuit already struck down the same federal restriction in Reese v. ATF, using nearly identical reasoning. Other federal courts have gone the other way and upheld under-21 bans — including a ruling that leaned on the same infancy-doctrine theory OLC just rejected. That division has real consequences: a 19-year-old in Michigan who stopped an active shooter at a mall was still prosecuted afterward because the state wouldn't issue him a concealed-carry license.

What's next: Watch for ATF to issue implementation guidance to FFLs, and watch the circuit split for a potential Supreme Court petition. Until dealers see clear direction from ATF, the safe move is following current federal law, not this opinion.

The bottom line: The federal government just admitted, in writing, that 18-to-20-year-olds are part of "the people" the Second Amendment protects. Turning that admission into actual practice at the counter is still a work in progress.