Justice Department Calls 18-to-20 Handgun Sales Ban Unconstitutional as FPC Fights Mootness Claim

The Justice Department’s Office of Legal Counsel concluded on September 17, 2026, in a memorandum opinion for the Attorney General, that the federal bar on handgun sales to adults 18 to 20 is unconstitutional, and the department has since told the Fifth Circuit that the opinion makes the lawsuit over that bar moot.

T. Elliot Gaiser, Assistant Attorney General for the Office of Legal Counsel (OLC), signed the opinion on 18 U.S.C. § 922(b)(1) and (c)(1). Those sections effectively close the licensed-dealer market for handguns to adults under 21, and a dealer who willfully sells one risks up to five years’ imprisonment. The age limits do not apply to rifles or shotguns. OLC concluded the sections may not be enforced to impose criminal penalties on dealers who sell handguns to adults 18 to 20.

OLC applied the two-step test from New York State Rifle & Pistol Association v. Bruen (2022), which the Supreme Court fleshed out in Wolford v. Lopez in 2026. At the first step, the Second Amendment’s plain text must cover the conduct. At the second, the government must justify the law by showing it fits the nation’s historical tradition of firearm regulation. OLC found the text covered 18-to-20-year-olds buying handguns and found no matching tradition. It relied in part on United States v. Hemani (2026), which rejected habitual-drunkard laws as analogues for a modern ban.

It weighed four possible analogues. They were the Founding-era rule letting minors void contracts, state laws from 1856 on restricting sales to minors, early college conduct codes and a rule on who could serve as constable. None formed a tradition, it found. The contract rule let a minor undo a purchase later, while the federal law makes the sale itself a felony.

The Founding record cut the other way. Of more than 250 militia statutes passed around ratification, 249 required militia service by 18-to-20-year-olds. Only three states had age restrictions before the Fourteenth Amendment, Alabama (1856), Tennessee (1856) and Kentucky (1860). By 1923, 21 of 48 states restricted sales to those under 21, fewer than half.

The opinion acknowledges that the question has deeply divided the federal bench and lists the decisions on each side.

• Reese v. ATF (5th Cir.) invalidated the federal age restrictions.
• Worth v. Jacobson (8th Cir.) invalidated Minnesota’s age-based public-carry restriction.
• Lara v. Commissioner, Pennsylvania State Police (3d Cir.) invalidated Pennsylvania’s age-based carry regime.
• McCoy v. ATF (4th Cir.) sustained the federal age restrictions.
• NRA v. Bondi (11th Cir., en banc) sustained Florida’s ban on purchases by people under 21.
• Rocky Mountain Gun Owners v. Polis (10th Cir.) sustained Colorado’s purchase restrictions.

OLC said the reasoning in the contrary decisions cannot be reconciled with Hemani and Wolford, so it does not treat them as controlling.

The opinion has limits. It does not address age-neutral conditions on commercial sales, the ban on handgun possession by those under 18 in § 922(x), the investigative period Congress prescribed for buyers under 21, or the prohibitions in § 922(g). It also notes that numerous states with similar age limits are not bound by its opinions.

The statute stays on the books, since Congress has not repealed it. Adults 18 to 20 can still get a handgun as a gift or in a private intrastate transfer under federal law, though many states, including California, Colorado and Washington, restrict private transfers.

The Fifth Circuit held on January 30, 2025, in Reese v. ATF, that the restrictions on dealer sales of handguns and handgun ammunition to adults 18 to 20 are inconsistent with the Second Amendment, in an opinion by Judge Jones for a panel with Chief Judge Elrod and Judge Barksdale. Firearms Policy Coalition (FPC), the Second Amendment Foundation and the Louisiana Shooting Association filed the suit in November 2020. On remand, Judge Robert R. Summerhays of the Western District of Louisiana entered judgment on January 27, 2026, declaring the sections unconstitutional as applied to 18-to-20-year-olds, but he limited the injunction to Mississippi, Louisiana and Texas and to people who were members of the plaintiff groups on the date of entry. Both sides appealed, and the case is now captioned FPC v. ATF, No. 26-30154.

The government’s brief, filed October 5, 2026, argues that the OLC opinion makes the appeal moot: “The Department of Justice’s determination that it will not enforce the challenged provisions against anyone, anywhere, demonstrates that there is no longer a live controversy.” If the court reaches the scope of relief, the brief says, an organization can press the claims only of “its actual existing members, not hypothetical future members,” citing Trump v. CASA among other cases. The same day the government moved to dismiss its own cross-appeal, with the plaintiffs’ consent.

FPC’s reply brief, filed November 4, answers that “voluntary cessation of allegedly illegal conduct does not moot a case” and that an OLC directive “was easily issued, and could just as easily be withdrawn.” It asks the court to reject the mootness argument and to extend relief to the groups’ affected members wherever they live and whenever they joined. “An opinion from some government lawyers is not a repeal of the law and it’s not an enforceable court order,” FPC President Brandon Combs said in a statement the same day. No argument date is set, and the Fifth Circuit’s decision on mootness and the scope of relief is expected after the briefing that closed in November 2026.