Third Circuit Upholds Second Amendment Rights of 18-20-Year-Olds

On October 16, 2020, a number of plaintiffs, including Madison Lara, the Second Amendment Foundation, and others, filed a lawsuit claiming Pennsylvania law which forbid 18-20-year-olds from obtaining a concealed carry permit or from openly carrying outside of the home during an emergency was an infringement of the rights protected by the Second Amendment.   This was nearly two years before the Supreme Court decision of Bruen.  On April 16, 2021, the District court ruled against them. On April 21, 2021, the plaintiffs  appealed the decision by the Pennsylvania District Court to the Court of Appeals for the Third Circuit. The decision held Pennsylvania law which forbid 18-20-year-olds from obtaining a concealed carry permit or from openly carrying outside of the home during an emergency was not an infringement of the rights protected by the Second Amendment. The three judge panel held the appeal pending the Supreme Court decision in Bruen.

The Bruen decision was published on June 22, 2022, clarifying the Heller decision and giving clear guidance on how to interpret Second Amendment cases.  In the clarification, the Supreme Court validated the right to carry outside the home and set forth how to perform judicial tests on laws which were challenged as infringing on the rights protected by the Second Amendment. On January 18, 2024, the three judge panel found the Pennsylvania statutes infringed on the Second Amendment rights of 18-20-year old people. It was a split decision, with Judge Restrepo dissenting.  On February 15, 2024, the defendants argued 18-20-year old people were not considered to be part of the people. Judge Restrepo agreed. The defendants filed for a re-hearing of the case en banc, by the entire Court of Appeals for the Third Circuit.

On March 27, 2024, a panel of the entire Court of Appeals for the Third Circuit voted to deny the request for re-hearing the case en banc. The panel consisted of thirteen judges. Six judges voted to hear the case en banc. Seven judges voted to deny the hearing. The six judges who voted to hear the case en banc were: Shwartz, Krause, Restrepo, Freeman, Montgomery-Reeves and Chung. Those six judges were effectively voting against including the Second Amendment as a fundamental part of the Bill of Rights. They lost the vote. The decision finding Pennsylvania laws infringe on the ability of 18-20-year olds to exercise the Second Amendment rights was upheld. The decision is now precedential law in the Third Circuit.

Analysis: The Court of Appeals for the Third Circuit serves the areas of Pennsylvania, New Jersey, Delaware, and the United States Virgin Islands.  Infringements on the rights of 18-20-year olds, protected by the Second Amendment, are likey in New Jersey, Delaware and the US Virgin Islands. There is no further appeal except to the Supreme Court. The case creates a split in the Circuits.  Similar cases are proceeding in other circuits. With this decision, it is likely one of the 18-20-year old challenges will be considered at the Supreme Court. This case is a good candidate, because the Biden administration may choose to ask the Supreme Court to hear the case. The Supreme Court seldom refuses to hear a case which the executive branch asks it to hear.

In this case, the three judge panel closely adhered to the guidance put forward in the Bruen decision. It would be a favorable case for the Supreme Court to hear in order to reinforce the doctrines put forward in Bruen.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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