Firearm Suits Take Aim at Laws and Retailer Policies Increasing Gun Age to 21

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Gun lobby sees age restrictions as infringing on right to bear arms

Six days after Walmart and Dick’s Sporting Goods announced they would not sell guns to buyers under 21 years old, Tyler Watson accused the retailers of age discrimination.

The restrictions were announced after a high school shooting in Parkland, Florida, left 17 people dead on February 14.

“If there’s a safety concern, it trumps the right of an individual to have access to a gun in their store,” said Mike Papantonio, senior partner with Levin Papantonio in Pensacola, Florida.

Walmart stated on its website that in light of recent events, “We’ve taken an opportunity to review our policy on firearm sales. Going forward, we are raising the age restriction for purchase of firearms and ammunition to 21 years of age.”

The 20-year-old Tyler Watson in Oregon tested the new corporate policy on February 24 and March 3. After he was unsuccessful in buying a rifle at stores in Grants Pass and Medford, Mr. Watson filed suit.

“They have the right to conduct business as long as it’s not violative of equal protection and even if it is, they can argue that they are concerned for the safety of their employees,” Mr. Papantonio told PacerMonitor.

Phone calls to Mr. Watson’s attorney Max Whittington went unreturned by press time. 

“These lawsuits are trying to hold companies responsible but given that it’s legal for private entities to make these sales, it’s hard for a lawsuit to force them to change their corporate policy,” said Darren Rosenblum, an attorney and professor at Pace University. “It seems pretty unlikely that this would succeed because the companies are allowed to put in place whatever restrictions they think is necessary.”

When the state of Florida followed suit on February 27 with its own law increasing the minimum age to buy rifles to 21 from 18, the National Rifle Association filed a federal lawsuit, accusing the Sunshine State of violating the constitutional rights of young adults.

“The NRA does not have to go through the legislative process but that would be the best route here for them since Florida’s new law neither prevents people from bearing arms under the Second Amendment nor does it discriminate,” said Taso Pardalis, an attorney and partner with Pardalis & Nohavicka Lawyers in Manhattan.

The lawsuit seeks declaratory and injunctive relief: a declaration that Florida’s law banning adult, law-abiding citizens under the age of 21 from purchasing firearms of any kind is unconstitutional under the Second and 14th Amendments to the U.S. Constitution. At the core of the issue is state and federal law, both of which say 18 is the legal age to buy a firearm.

“This is one way that gun right enthusiasts are trying to get gun owners treated as a protected class the same as a racial classification, gender classification or a sexual orientation classification,” said Paul Helmke, professor at Indiana University’s School of Public and Environmental Affairs (SPEA) and former president of the Brady Campaign, a gun-control lobbyist.

However, five years ago, a panel of judges in the 5th Circuit Court of Appeals already decided that Congress did not irrationally impose age qualifications on commercial arms sales in National Rifle Association v Bureau of Tobacco and Firearms and Explosives.

“Unlike race- or gender-based classifications, which require a tighter fit between the discriminatory means and the legitimate ends they serve, the government may ‘discriminate on the basis of age without offending’ the constitutional guarantee of equal protection if the age classification in question is rationally related to a legitimate state interest,” the April 2013 order stated.

Most recently, the perpetrator in the Florida shooting last month was Nikolas Cruz, a 19-year-old who has been charged with 17 counts of premeditated murder and 17 attempted murders, according to law enforcement.

“The broader notion of the state’s right to police for health, safety and welfare has succeeded in lawsuits of the past,” said Mr. Papantonio.

Specifically, in 1996, the Louisiana Supreme Court upheld a state law that changed the minimum drinking age to 21, reversing a decision that claimed setting the drinking age above 18 was unconstitutional age discrimination.

According to the decision written by Justice Kimball, the state argued that prohibiting the purchase by and sale to 18- to 20-year-olds of alcoholic beverages would improve highway safety, reduce the incidence of driving while intoxicated among persons in that age group, and reduce the number of injury and fatality automobile accidents in that age group.

Similarly, the Florida legislature banned the sale or possession of bump fire stocks to improve safety. Bump stocks can make it easier for a   semiautomatic weapon to function like an automatic rifle. Dubbed the Marjory Stoneman Douglas High School Public Safety Act, the Florida law also prohibits ownership or possession of firearms by a person who has been adjudicated mentally defective or been committed to a mental institution.

“There’s this balancing act between the right of the state to engage police power, which is granted to protect the health, safety and welfare of the people, versus the right of individual ownership of property,” Mr. Papantonio said.

Although the NRA has called for regulations on bump stocks, several lawsuits have been filed by gun owners alleging a ban by the Florida legislature is an unconstitutional taking of property. However, bump stocks are not weapons and as a result Second Amendment protections under the U.S. Constitution would not hold up to dismantle the ban in litigation, according to Dr. Pamella Seay, professor of justice studies at Florida Gulf Coast University in Fort Myers, Florida.

“The bump stock itself is merely an accessory for a firearm so the new statute does not affect anyone’s right to bear arms,” said Ms. Seay, who is licensed to practice law in South Carolina and Florida.

The Second Amendment has created considerable debate about the constitutionality of firearms. It states that the right of the people to keep and bear arms shall not be infringed. But in addition to the 2nd Amendment, there’s the 10th Amendment to consider, a section of the Bill of Rights that basically says any power not given to the federal government is given to the people or the states.  

“The state of Florida’s defense is that bump stocks create a situation in which the citizenry of Florida are at such great risk that the level of risk supersedes the owner’s individual right to access of property,” Mr. Papantonio said.

While American gun owners have historically enjoyed the right to protect themselves by possessing firearms, the extent to which they can do so at the expense of those who are not armed is being tested in these flurries of recent lawsuits.

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