WASHINGTON — This week the Blanche Department of Justice issued a memorandum to the attorney general that will have national ramifications, finding the federal ban on handgun sales to adults aged 18-to-20 to be in violation of the Second Amendment.
The ban has stood for 58 years since the enactment of the Omnibus Crime Control and Safe Streets Act of 1968 (“OCCSSA”) and has always been defended by the Justice Department under prior administrations.
The 49-page slip opinion was issued on September 17 by the DOJ’s Office of Legal Counsel (OLC) and signed by Assistant Attorney General T. Elliot Gaiser. The OLC is the part of the DOJ that gives formal legal advice to the executive branch (the president, attorney general, etc.).
The introduction to the opinion states the obvious double standard that has frustrated Americans for decades:
“Our laws deem an eighteen-year-old ‘mature enough to be drafted, vote, serve as a juror, and be sentenced to death,'” and then later adapts a famous Bruen line to bring the point home: “‘We know of no other constitutional right that an individual may exercise only after’ reaching the age of twenty-one.”
The OLC opinion applies the Bruen framework and concludes that “a bar against young adults between the ages of eighteen and twenty purchasing commonly used firearms falls squarely ‘within the plain text of the Second Amendment.'”
A few judges have argued that young adults are not members of “the people” to which constitutional rights – in this case, the Second Amendment – are afforded. This opinion disagrees, stating, “Where age was thought to matter, the Constitution imposes express age limits. The Second Amendment does not.” The opinion goes on to add that, “…membership in ‘the people’ is not defined by age, even where our constitutional tradition allows certain rights to be limited by age.”
“The Supreme Court has unequivocally stated that ‘[t]he constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'”
Here the DOJ specifically cites Bruen, which itself makes an ironic point – the DOJ is engaging with the topic of age-based bans while the Supreme Court itself has not engaged with such a case nor issued an opinion on the merits.
In 2026 alone, SCOTUS denied cert in at least five cases addressing the issue: National Rifle Association v. Glass, McCoy v. ATF, West Virginia Citizens Defense League v. ATF, Bivens / Paris v. Second Amendment Foundation, and Picon v. United States. Justice Thomas noted he would have granted cert in at least one of the cases.
Adding to the peculiarity of the issue, there is a circuit split on age-based restrictions, the very type of environment where the Supreme Court normally intercedes. The mystery of why the Supreme Court refuses to address such a blatant violation that affects such a large portion of the population goes unanswered, and largely without comment or insight.
The opinion ultimately concludes:
In sum, because the modern federal age restrictions limit young adults between the ages of eighteen and twenty from obtaining arms, they “fall within the plain text of the Second Amendment” and are “presumptively unconstitutional.” As we have not identified “any analogue or collection of analogues” that “is ‘relevantly similar’ to the modern law,” our view is that the government is unable to overcome this presumption.
Section 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 domain are full members of the political community.
While this guidance to the Attorney General only says that the DOJ cannot impose criminal penalties on FFLs that conduct sales to young adults, we would not be surprised to see affirmative lawsuits on the subject aimed at state-level bans coming from the Second Amendment Section under the Civil Rights Division in the near future.
