By Jim Saunders
The News Service of Florida
TALLAHASSEE — A pending U.S. Supreme Court case could help decide the fate of a Florida law that prevents sales of rifles and other long guns to people under age 21.
The 11th U.S. Circuit Court of Appeals on Friday told attorneys for the National Rifle Association and the state that they should wait to file briefs about the constitutionality of the Florida law until after the U.S. Supreme Court rules in a Texas gun case.
At a minimum, that means the Atlanta-based appeals court likely will not rule on the Florida law until at least sometime in 2024 — more than six years after the age restriction was passed following the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland.
The underlying details of the Florida and Texas cases are different: The Texas case involves a challenge to the constitutionality of a federal law that has barred gun possession by people under domestic violence restraining orders. The U.S. Department of Justice took the case to the Supreme Court in March after the 5th U.S. Circuit Court of Appeals said the law violated Second Amendment rights.
But the Texas and Florida cases share key questions about how to carry out a 2022 U.S. Supreme Court opinion in a case known as New York State Rifle & Pistol Association v. Bruen, which said gun laws must be “consistent with this nation’s historical tradition of firearm regulation.”
The Supreme Court on June 30 agreed to hear the Texas case, though it has not scheduled arguments. The full 11th U.S. Circuit Court of Appeals said July 14 it would hear the Florida case, after a three-judge panel had earlier upheld the age restriction.
Florida lawmakers passed the restriction after Nikolas Cruz, who was 19 at the time, used an AR-15 rifle to kill 17 students and staff members and injure 17 others at Marjory Stoneman Douglas High School. Federal law already prohibited the sale of handguns to people under 21.
The NRA quickly challenged the Florida law, arguing it violated the Second Amendment. Chief U.S. District Judge Mark Walker rejected the challenge in 2021, ruling that previous court opinions have given states leeway to impose Second Amendment restrictions in some instances.
The case then went to the 11th U.S. Circuit Court of Appeals, where the three-judge panel on March 9 upheld the law and said it is consistent with the historical tradition of firearm regulation. In part, the panel pointed to age restrictions since the Reconstruction era. It also said the law allows people under 21 to possess or use guns, such as guns they receive as gifts.
“To begin with, the act is no more restrictive than its forebearers: While the act burdens 18-to-20-year-olds’ rights to buy firearms, unlike its Reconstruction era analogues, it still leaves 18-to-20-year-olds free to acquire any type of firearm — including ‘the quintessential self-defense weapon,’ the handgun … in legal ways, as long as they don’t buy the weapons,” Judge Robin Rosenbaum wrote in an opinion joined fully by Judge Anne Conway. Judge Charles Wilson wrote a short concurring opinion.
The full appeals court this month did not explain its decision to take up the case — a move known as hearing the case “en banc.” But in doing so, it vacated the panel ruling.
The one-page document issued to attorneys Friday indicated the appeals court wants to see how the Supreme Court rules in the Texas case. The document said the NRA’s brief for en banc consideration is due 40 days after the Supreme Court rules, with the state then given 30 days to file its brief.
In the Texas case, Zackey Rahimi challenged a 1994 federal law that prevented gun possession by people under domestic violence restraining orders. Pointing to the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision, the 5th U.S. Circuit Court of Appeals said the law was unconstitutional.
“The government fails to demonstrate that (the law’s) restriction of the Second Amendment right fits within our nation’s historical tradition of firearm regulation,” the ruling said.
In a brief asking the Supreme Court to take up the case, Justice Department attorneys pointed to what they called the 5th Circuit’s “misinterpretation” of the New York State Rifle & Pistol Association v. Bruen decision.
“The Fifth Circuit treated even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find the modern laws unconstitutional,” the brief said. “If that approach were applied across the board, few modern statutes would survive judicial review; most modern gun regulations, after all, differ from their historical forbears in at least some ways.”
