The National Rifle Association is taking its fight over Florida’s ban on gun sales to adults under the age of 21 to the Supreme Court. In a cert petition filed with the Court on Friday, the Second Amendment organization argues that the Eleventh Circuit Court of Appeals erred in upholding the law, which was adopted in the wake of the Parkland shootings in 2018. 

The federal appeals court based its decision “on the notion that the common law at the Founding made contracts by minors for the purchase of goods—incidentally including firearms, according to the majority—’voidable’ at the option of the minor”, according to the NRA’s brief, which says the decision is “unsustainable” for a variety of reasons, including a lack of any “actual historical statute or legal rule directly limiting anyone’s acquisition of firearms.”

What is more, even if the majority’s interpretation of this common-law contract rule were correct, it is sharply disanalogous to modern age-based gun bans in terms of both the “why” and the “how” of regulation. As to the “why,” the “right of an infant to avoid his contract” at the Founding was designed “for his protection against his own improvidence and the designs of others,” a purpose totally unlike Florida’s asserted goal of “address[ing] the crisis of gun violence.” And the “burden on the right of armed self-defense” imposed by the two rules, is likewise different beyond any comparison. The Founding-era rule, even by the en banc majority’s lights, only limited the right to keep and bear arms of legal minors—persons who were not treated as adults for most other purposes and who remained within the care, custody, and protection of their parents. But Florida’s law strips the right to acquire firearms from legal adults—18-to-20-year-olds who enjoy the practical and legal benefits of adulthood, who are not within the custody or protection of their parents, and who often have families of their own. “Eighteen- to twenty-one-year-olds in Florida today—in other words, adults—are analogous to legal adults at the time of the Founding, not legal minors.”

That’s the best argument that the Eleventh Circuit got it wrong, at least in my opinion. Even if 18, 19, and 20-year-olds were treated as minors in some regards back in 1791, they are unquestionably adults today. In fact, there’s nothing stopping an adult younger than 21 from possessing a firearm under Florida law. They simply aren’t allowed to purchase one at retail; a restriction that undoubtably has a chilling effect on their Second Amendment rights. 

The NRA also notes that while the Tenth and Eleventh Circuits have upheld gun restrictions for under-21s, the Fifth, Third, and Eight circuits have ruled against prohibitions on the right to carry for under-21s, which sets up a circuit split on the question of when, exactly we become vested with our Second Amendment rights. 

The state of Florida now has 30 days to respond to the NRA’s cert petition, but in an interesting twist Attorney General James Uthmeier has vowed not to defend the statute, unlike his predecessors Pam Bondi and Ashley Moody, who both argued in favor of upholding the statute as the NRA’s litigation was winding its way through the federal judiciary. 

In Florida, statutes say that the attorney general shall “appear in and attend to, in behalf of the state, all suits or prosecutions,” but do not say the attorney general must defend all state laws.

Neal Devins, a professor of law at The College of William & Mary, co-authored a Yale Law Journal report in 2015 about how different states have handled the duty to defend the law.

Devins said he didn’t believe that Florida’s statute requires Uthemier to defend the law.

In fact, Florida’s court nearly a century ago issued a ruling saying that if the attorney general thinks a statute is unconstitutional, it is their duty to challenge it to settle the question of whether it’s valid or not, according to a 2018 study from the National Association of Attorneys General.

Uthmeier’s office did not respond to multiple requests for comment on his justification for not defending the law. On social media, he said he believed the law was unconstitutional.

“Men and women old enough to fight and die for our country should be able to purchase firearms to defend themselves and their families,” Uthmeier said on X.

The Florida attorney general’s own website, though, says that the attorney general “defends the constitutionality of statutes duly enacted by the Legislature.”

House Democratic Leader Fentrice Driskell said Uthmeier’s “job is to defend Florida law,” and said if he didn’t defend the current gun restriction, it would be an “abdication of his duties.”

It’s going to be fascinating to see how Uthmeier responds to the NRA’s cert petition. Will he too encourage SCOTUS to accept the case, but to find in favor of the National Rifle Association? Will he advocate for the Court to address the conflict among circuit courts, but to use another vehicle instead of NRA v. Glass? Or will he back down from his stated opposition to the law and offer up a defense of the statute, even half-heartedly? 

The Supreme Court has already denied cert to another case dealing with under-21s and the Second Amendment; an Eighth Circuit decision that struck down Minnesota’s ban on issuing concealed carry licenses to under-21s. Minnesota Attorney General Keith Ellison appealed his loss to the Supreme Court earlier this spring, but the Court rejected the cert petition without comment after a single round of consideration in conference. 

Based on the timing of the most recent cert petition and the window of opportunity for the state to respond, it will likely be the fall before SCOTUS considers the NRA’s request, and if they grant cert it could be a year from now before we learn what the justices have to say about under-21s and the right to keep and bear arms. I suspect that their denial of Ellison’s appeal gives us a clue about where a majority of the Court stands, but with the justices so reluctant to take up any 2A cases recently I’m not exactly confident that four of them will be willing to hear the case and officially decide at what age our Second Amendment rights kick in.