Legal Geek No. 129: Do Age Limits on Gun Sales Create Age Discrimination?

Welcome back to Legal Geek. This week, we cover a listener question from Russell, who asks whether the recent trend of several retailers prohibiting gun sales to those under age 21 is age discrimination that could be challenged in court.

https://archive.org/details/LegalGeekEp129

The recent string of high-profile school shootings in Florida and other states have ramped up pressure for stronger gun control in America.  While the government has not yet weighed in as of the time of this recording, several retailers like Wal-Mart have decided to take action themselves and ban sales of firearms to persons under the age of 21.  While this may be seen by some as a positive P.R. move for these companies, does it open them to an age discrimination lawsuit?

The topic of age discrimination is most often associated with workplace harassment and discrimination, and the only federal law on point is the Age Discrimination in Employment Act, which prohibits discrimination against those age 40 or older.  To this end, there is not a specific law protecting younger workers from discrimination, at least on the federal level, but regardless, this type of law does not apply in this gun sales context.

That leaves several more amorphous Constitutional grounds to make a discrimination claim, including under the Second Amendment, under due process, or under the Equal Protection clause.  The Second Amendment is likely not infringed because these retailers are not government entities, and there remain other sources of firearms if a young person wants to own one and exercise their rights under this Constitutional Amendment.

Due process and equal protection both stem from the 14th Amendment to the Constitution.  For due process, states are generally free to restrict your rights under their broad police powers unless the law infringes upon a fundamental right, which have typically been interpreted to include all those rights enumerated in the Constitution and the Bill of Rights.  Thus, the right to keep and bear arms would likely be a fundamental right that would require states to comply with the strict scrutiny standard to enact limits upon that right, which means the state law must be narrowly tailored to serve a compelling interest of the state.

However, again we run into the problem that these retailers are not states or government entities.  Even if we ignore that problem with the potential challenge and posit that a state writes a law prohibiting sales of guns to those under age 21, there is a possibility that such a law could still be deemed to meet the strict scrutiny standard.  Public safety, particularly of young adults and children, is almost certainly a compelling state interest, and as long as it could be proven that the law would be narrowly tailored to fit those interests, it would stand as constitutional.  A challenge could certainly be made in court, but it's a close call on whether it would be successful, and that's only if we have actual government action or laws on this point beyond the retailer context.

Equal protection stops laws from discriminating against so-called suspect classes, which is basically people that have been getting a raw deal for years like minorities and religions.  Age ranges are not a suspect class, which is also why prohibitions against sales of alcohol to the same age group have not been successfully challenged.  Indeed, the alcohol age limit is perhaps the best analogue to this question about gun sales, with the only notable difference being that gun ownership may be a fundamental right under the Constitution, while drinking alcohol is not.  While that difference could change the legal standard applied in court, it may not change the outcome.

The Bottom Line is, although I am no Constitutional civil rights expert, it appears that challenges to retailers not selling guns to those under age 21 would face an uphill battle in court for a number of reasons.  Age discrimination is not really recognized for younger people in several contexts, including the sale of alcohol, and that would make it exceedingly difficult to stop these practices and decisions of private party retailers.  That being said, this would be a great intersection of gun control and Constitutional rights to watch in court if a challenge is ever made, but that seems more likely if states or the federal government writes a law like this.  We will have to wait and see if that develops.

Thanks Russell for the great topic suggestion.

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