March 9, 2023 – Today a three judge panel of the U.S. Court of Appels for the Eleventh Circuit issued a decision that Florida’s Marjory Stoneman Douglas High School Public Safety Act (the “Act”) is constitutional. The Act precludes those under 21 from buying firearms while allowing that age group to freely possess and use firearms of any legal type. See 2018 Fla. Laws 10, 18–19 (codified at Fla. Stat. § 790.065(13)). The National Rifle Association (NRA) had challenged the Act, arguing it violates the Second Amendment.
Pursuant to the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Eleventh Circuit stated that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” To rebut that presumption, “the government must demonstrate that” a state’s infringement of that conduct “is consistent with this Nation’s historical tradition of firearm regulation.”
According to the Eleventh Circuit, the Act survives a Bruen analysis. As opposed to examining the Act in the historical context of the Founding Era of 1791 when the Bill of Rights was enacted, the Eleventh Circuit looked at state laws in effect during the Reconstruction Era of 1868 to decide whether the Act is constitutional. The Eleventh Circuit considered and relied upon the Reconstruction Era because that is when the 14thAmendment was adopted, which made the Second Amendment applicable to the states. In contrast, the Supreme Court, in both Bruen and District of Columbia v. Heller, 554 U.S. 570 (2008), considered the firearm regulations at issue in the context of the Founding Era. In Bruen, the Supreme Court stated that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence” because “reliance on late-19th-century laws has several serious flaws even beyond their temporal distance from the founding.” Notably, this is the first case where a court has chosen to examine firearms legislation in the context of the Reconstruction Era.
The Eleventh Circuit outlined Reconstruction Era firearm regulations which burdened law-abiding citizens’ right to be armed for self-defense “to an even greater extent” than the Act. At the time the 14th Amendment was adopted, Alabama, Tennessee, and Kentucky prohibited 18-to-20-year-olds––who were considered minors at the time pursuant to the laws of those states––from purchasing and possessing firearms. Looking at headlines from the Reconstruction Era, the Court noted that those laws were adopted for the same reason as the Act––to protect the public from “minors” with firearms. After the 14th Amendment was adopted, other states adopted regulations similar to those in Alabama, Tennessee, and Kentucky. The Court also noted that laws prohibiting the sale of firearms to minors were virtually “unchallenged” for years.
While today’s decision appears to represent a significant departure from Supreme Court precedent, an unidentified Circuit Judge has exercised their right to withhold issuance of the mandate of this panel decision. Pursuant to the Court’s rules, any active Eleventh Circuit judge may request that judges of the Circuit Court be polled on whether rehearing en banc should be granted regardless of whether or not a petition for rehearing en banc has been filed by a party. This is ordinarily done by a letter from the requesting Circuit Judge to the Chief Circuit Judge with copies to the other active and senior judges of the Court and any other panel member. When this occurs, the court clerk must withhold the mandate, and the identity of the requesting Circuit Judge will not be disclosed in the order.
Evidently, at least one Circuit Judge might not agree with this panel decision. The Chief Circuit Judge must now give the other Eleventh Circuit judges a reasonable amount of time to respond to the poll request before conducting the poll. As such, today’s decision is put on hold temporarily as the Court considers a potential rehearing en banc.
Renzulli Law Firm, LLP will continue to monitor this case and other firearm related statutes and litigation around the country. If you have any questions concerning firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.