September 15, 2021

As Renzulli Law Firm previously reported, in a 2-1 decision dated July 13, 2021, a panel of the Fourth Circuit Court of Appeals declared the provision in the Gun Control Act prohibiting federally licensed firearms dealers from transferring handguns to persons between 18-20 years old to be unconstitutional on the basis that it violates the Second Amendment in the case of Hirschfield v. ATF.
On August 27, 2021, the ATF filed a petition for en banc review, requesting that all of the active judges on the Fourth Circuit rehear the case.  Based on the filing of the petition for rehearing en banc, the mandate will not issue until it has been decided (the order sending the case back to the trial court for the entry of formal judgment declaring the ban on the sale of handguns to 18-20 year olds to be unconstitutional).  Accordingly, the ban on federally licensed firearms dealers transferring handguns to 18-20 year olds will remain in effect for the foreseeable future. 
In its petition for rehearing en banc, the ATF claims that the case is moot and should be dismissed because the named plaintiffs are now more than 21 years old.  It also argues that the provision at issue does not violate the Second Amendment rights of 18-20 year olds because it does not prohibit them from purchasing and possessing handguns, only from purchasing them from federally licensed firearms dealers.  The ATF further argues that this restriction on the commercial sale of firearms satisfies intermediate scrutiny.
The State of Illinois (joined by sixteen other states and the District of Columbia) filed an amicus brief in support of the ATF’s petition for rehearing en banc.  The Commonwealth of Virginia and the State of Maryland filed a separate amicus brief in support of the ATF, as did a coalition of four gun control groups.
The Plaintiffs cannot file a response to the ATF’s petition for rehearing en banc unless the court requests a response, however, the court will usually not grant a petition for rehearing en banc without first requesting a response from the opposing party.  The Fourth Circuit’s decision conflicts with the Fifth Circuit’s decision in NRA v. ATF.  A conflict between the circuits is one of the main grounds considered by the Supreme Court in deciding whether to grant a petition for a writ of certiorari (to allow an appeal).  Accordingly, if the Fourth Circuit grants the ATF’s petition for rehearing en banc and reverses the panel’s decision, there is less of a likelihood that the Supreme Court will decide this issue than if the petition is denied, or the en banc court affirms the panel’s decision.
Renzulli Law Firm will continue to monitor the Hirschfield v. ATF case.  If you have any questions about this case, the Second Amendment, or your state’s age restrictions, please contact John F. Renzulli or Christopher Renzulli.