By Richard Guerra
Assistant Criminal District Attorney in Bexar County
Every week since the Fifth Circuit’s decision in Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, prosecutors in my office have been challenged to demonstrate how Texas Penal Code §46.02(a)(2) —which prohibits Texans younger than 21 years old from carrying a handgun outside the home—is consistent with our nation’s historical tradition of firearm regulation. With no higher-court guidance, I frequently suggest that prosecutors search for ways to mount a prosecution that avoids directly dealing with this issue. For example, individuals commonly break multiple gun laws simultaneously. A person who violates §46.02(a)(2) often also violates §46.02(a-1)(2)(A) by engaging in criminal activity other than a Class C traffic violation. Did the defendant have contraband? Are there other facts that could lead us to prosecute for an offense that lacks the uncertainty surrounding §46.02(a)(2)’s constitutionality?
In Reese, the Fifth Circuit held that 18 U.S.C. §§922(b)(1) and (c)(1) (also referred to collectively as “the Federal Statutes”) and their attendant regulations are unconstitutional. These Federal Statutes prohibited Federal Firearms Licensees (FFLs) from selling handguns and handgun ammunition to adults between the ages of 18 and 21. The Federal Statutes are analogous to Texas Penal Code §46.02(a)(2) because they effectively disarm, albeit in different ways, the same group of people.
Does Reese forbid Texas from prosecuting 18- to 20-year-olds for carrying a handgun outside of the home? The unsatisfying lawyer answer is always, “It depends.” However, the Fifth’s Circuit’s historical analysis in Reese offers some much-needed guidance. Let’s dive in.
Background
Federal Statutes 18 U.S.C. §§922(b)(1) and (c)(1) prohibit FFLs from selling handguns and handgun ammunition to adults ages 18 to 20.[1] The plaintiffs—who included multiple 18- to 20-year-olds and three nonprofit organizations—sued the Bureau of Alcohol, Tobacco, Firearms, and Explosives in federal district court to challenge the law’s constitutionality.[2]
The district court’s opinion largely relied on the historical analysis that the Fifth Circuit had conducted in Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, which—before Bruen—had upheld the Federal Statutes’ constitutionality.[3] The district court acknowledged that—at the time of our nation’s founding—militia service was required for 18- to 20-year-olds, which consequently implied the right to purchase firearms.[4] However, the court focused its analysis on the varying minimum ages that some colonies and states had set for militia service, which could dip lower than 18. The court also cited to certain evidence which showed the Founders’ belief that the Second Amendment did not curtail legislators’ ability to restrict firearm access to groups of people who were thought to lack “civic virtue.” Ultimately, the court upheld the Federal Statutes.[5]
Moreover, the district court reviewed historical evidence through the 19th Century, observing that gun control intensified during this period. The court remarked that Bruen utilized this 19th-Century evidence “as mere confirmation” of the U.S. Supreme Court’s earlier conclusions and relied on it to uphold the Federal Statutes, stating that it was doing the same.[6] The plaintiffs appealed to the Fifth Circuit, which abated the appeal pending the Supreme Court’s decision in Rahimi. Afterward, the Fifth Circuit reversed the district court.[7]
As the judges saw it
The Fifth Circuit held that 18 U.S.C. §§922(b)(1) and (c)(1) are unconstitutional under Bruen, refined by Rahimi.[8] “Why” and “how” the Federal Statutes impacted the right to bear arms were
central to the circuit court’s analysis into the nation’s historical tradition of firearm regulation. Quoting from Rahimi, the Court opined that a law which regulates firearms for a permissible reason may unconstitutionally infringe on the right when it goes beyond what was done at the founding.[9]
At the start of its analysis, the Fifth Circuit quickly rejected the government’s argument that the Second Amendment’s plain text did not cover the conduct—the commercial purchase of firearms—that the Federal Statutes prohibited. This rejection is consistent with a statement from an earlier Fifth Circuit opinion—United States v. Diaz—in which the court observed, “As in Rahimi, the ‘two-step’ view of Bruen is effectively collapsed into one question: whether the law is consistent with our nation’s history of firearm regulation.”[10] Even though the words “purchase,” “sale,” or similar transactional terms are not in the Second Amendment’s text, the Court reasoned that the right to “keep and bear arms” implied the right to purchase them.[11]
Next, the Court analyzed whether 18- to 20-year-olds were part of “the people” protected by the Second Amendment. In doing so, it largely relied on the historical analysis contained in D.C. v. Heller.[12] The Court rejected the government’s argument, which relied on Heller to assert that “the people” covered by the Second Amendment are limited to the “political community” because the founding-era right to vote was reserved for citizens over 21. But Heller does not state that the “political community” referred only to those who could vote.[13] Rather, Heller indicates that the “political community” includes all who are part of the national community or those who are sufficiently connected with this country to be considered part of that community.[14] Just as it is frivolous to define “arms” as those in existence only at the Founding, it is likewise ludicrous to limit “the people” in such a way. Doing so would imply excluding law-abiding, adult citizens from Second Amendment protection based on property ownership, race, or gender. The Court noted that the Constitution can and must apply to circumstances beyond what the Founders specifically anticipated. Even so, the text’s meaning is fixed according to the understandings of those who ratified it.
Having determined that the Second Amendment covers the commercial purchase of firearms and that the plaintiffs are included in “the people” protected by the Second Amendment, the Court analyzed the nation’s historical tradition of firearm regulation. Central to determining whether the law is analogous to our historical regulatory tradition are: 1) how the regulation affects the right to bear arms and 2) why the regulation impacts the right to bear arms.[15]
The Court identified the 1792 Militia Act as strong evidence that 18- to 20-year-olds had the same Second Amendment protections as those who were 21 or older at the founding. The act required 18-year-olds to enroll in the militia and to furnish their own weapons and ammunition.[16]
The Court then dissected the Founding-era laws that the government argued were analogous to 18 U.S.C. §§922(b)(1) and (c)(1). For example, resolutions passed in 1810 and 1824 disarmed students at the Universities of Georgia and Virginia. But the “how” and the “why” were too different from the Federal Statutes to work as compelling analogues because: 1) the resolutions applied to all students regardless of age, and 2) the resolutions were meant to effectuate student discipline and academic rigor, not to disarm all minors.[17]
The Court dismissed Pennsylvania’s 1755 Militia Act, which required parental consent for individuals under 21 to enroll in the militia, as not relevant to the inquiry because the Pennsylvania legislature passed another statute in 1777 that set the enrollment age at 18.[18]
Comparable militia laws—which required parents to furnish firearms for young men’s militia duty—were similarly pushed aside because such a requirement did not indicate that these young men lacked the right to keep and bear arms themselves. The Court also disregarded South Carolina’s eligibility requirements for constables—which categorically excluded those under the age of 21—because this age grouping was only one of the categories of people and professions that were barred from constabulary duty. Moreover, exempting individuals from serving as constables is not analogous to curtailing their right to acquire a handgun.[19]
The government asserted that Rahimi allows the legislature broad authority to restrict the gun rights of “categories of persons” that “present a special danger of misuse.” But the circuit court disagreed. According to the Court, the law at issue in Rahimi applied only upon a judicial finding that the defendant represented a credible threat to another’s physical safety, whereas 18 U.S.C. §§922(b)(1) and (c)(1) apply without such a determination.[20]
Finally, the Court disregarded statutes from Reconstruction and the late 19th Century because they are too distant in time from the Founding era. According to the Court, Heller and Bruen considered sources from the 19th Century only to confirm and reinforce earlier historical evidence. The Court clarified that post-Founding era laws that are inconsistent with the Constitution’s original meaning cannot overcome the wording of the Constitution’s text.[21]
The takeaway
The Fifth Circuit recognized that Rahimi refined the historical inquiry by using the language of “how” and “why” a regulation lessens the right to bear arms. With this understanding, the Court stated that a law that regulates firearms for a permissible reason may still infringe on the right when it goes beyond what was done at the founding. I find it useful to think of the reason for the regulation as the “why” and the scope of the regulation as the “how.” To be sure, there are likely other ways to use this language, but we will have to wait and see how Bruen and Rahimi develop in the coming months.
Recall that the district court considered evidence that indicated the Founders believed the Second Amendment did not restrict legislators’ ability to restrict firearm access to groups of people who were thought to lack “civic virtue.” However, the Fifth Circuit did not consider this evidence. Reading into it, I suspect that courts will find the Founders’ thoughts and beliefs to be less useful than analyzing the text of the analogous laws from the founding era. After all, Bruen acknowledged that the Constitution must apply to “circumstances beyond those the Founders specifically anticipated.”
Even though Texas Penal Code §46.02(a)(2) and the Federal Statutes penalize different groups of people (18- to 20-year-olds and FFLs, respectively) for different conduct (carrying a handgun outside the home and selling handguns and handgun ammunition, respectively), the ultimate result of both laws is the same: They restrict firearm possession and access to the same group of people: 18- to 20-year-olds. Additionally, the Militia Act of 1792—a federal statute passed by the Second Congress—is strong evidence against restricting firearm access to this age group. I think it will likely be difficult to overcome this evidence in a challenge to Texas’s statute.
Time will tell, to be sure, but the mosaic is becoming clearer.
[1] Specifically, §922(b)(1) prohibited FFLs from selling handguns to 18- to 20-year-old individuals and (c)(1) prohibits FFLs from selling a handgun or handgun ammunition to a remote purchaser unless that purchaser submits an affidavit in which they swear that they are 21 or older.
[2] These individuals are also members of the three plaintiff organizations, which include the Second Amendment Foundation, Firearms Policy Coalition, Inc., and the Louisiana Shooting Association. The organizations’ other members include 18- to 20-year-old adults and FFLs. Reese v. Bureau of Alcohol Tobacco Firearms & Explosives, 647 F. Supp. 3d 508 (W.D. La. 2022), rev’d and remanded, 127 F.4th 583 (5th Cir. 2025).
[3] Reese v. Bureau of Alcohol Tobacco Firearms & Explosives, 647 F.Supp.3d 508, 521 (W.D. La. 2022), rev’d and remanded, 127 F.4th 583 (5th Cir. 2025) (citing Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 203 (5th Cir. 2012), abrogated by New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), and abrogated by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and abrogated by Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 127 F.4th 583 (5th Cir. 2025).
[4] Reese, 647 F.Supp.3d at 522.
[5] Id. at 522.
[6] Id. at 518.
[7] Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 127 F.4th 583, 587 (5th Cir. 2025).
[8] Id.
[9] Id. at 588.
[10] United States v. Diaz, 116 F.4th 458, 467 (5th Cir. 2024).
[11] Reese, 127 F.4th at 590.
[12] Id. at 592.
[13] “What is more, in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.” D.C. v. Heller, 554 U.S. 570, 580, 128 S. Ct. 2783, 2790–91, 171 L. Ed. 2d 637 (2008).
[14] Heller, 554 U.S. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 260, 110 S. Ct. 1056, 1058, 108 L. Ed. 2d 222 (1990)).
[15] Id. at 588.
[16] Id. at 593.
[17] Id. at 596.
[18] Id. at 597.
[19] Id.
[20] Id. at 597–598.
[21] Id. at 600.