Is it unconstitutional for sellers to have higher minimum age for gun purchases than the federal government?

Question

The last few days (I am writing this on March 1, 2018) have seen several businesses raise the minimum age required to buy a gun to 21. Some examples: Walmart, Dick's Sporting Goods, Kroger.

Under current US federal law though, the minimum age necessary to purchase a rifle is 18.

Because of this, can it be said that those businesses that will not sell rifles to otherwise qualified individuals between the ages of 18 and 21 are in violation of the Second Amendment? Are there any cases that have treated this in the past?

Answer 1

Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says

(a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons;

§46a-63 defines "public accommodation"

(1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent

Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes

Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted.

Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected.

So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination.

Answer 2

The National Shooting Sports Foundation compiled an answer to this. In short:

• Under the U.S. constitution and current federal law such age discrimination is not illegal.

• Presently, 12 states, the District of Columbia, and at least two cities, do forbid this sort of age discrimination by retailers.

And the first lawsuit has already been filed in Oregon....

Answer 3

There are three issues with your idea:

1) Firstly, the Second Amendment (and most of the Constitution for that matter), are restrictions on government actions, not those of individuals or corporations.

2) It is legal to discriminate in age (with some exceptions in employment, and even then, barring some state-specific rule I am unaware of, its generally to protect the old not the young. It's why "senior discounts", and "children under X get in free" deals are legal). Discrimination is legal, unless it is due to a protected characteristic (e.g. race, sex, religion).

3) Finally, the age limit set by the government is a lower limit, below which one may not legally sell a firearm. Just because you meet that limit, doesn't mean that the seller is obliged to sell you a gun, barring some specific law. (See above).

As an example, it is, generally speaking, legal for the Girl Scouts to sell cookies, and for someone other than the Boy Scouts to sell popcorn. It is also perfectly legal to, for example, decide to only buy popcorn from Boy Scouts; or to never buy cookies from Girl Scouts.

Answer 4

I can't think of any specific case law that supports that, but as a general rule, so it will be interesting if any case comes out of this. So far, there is no legal requirement not to further restrict sales and stores can raise the age if they so choose. Generally when one thinks of buying firearms, Dick's Sporting Goods is the only one on the list where people would think to go. I didn't even know Krogars sold rifles!

Most guns are purchased at smaller stores than big retail stores (Wal-Marts in my locality flat out do not sell firearms... unless airsoft or paint ball.).

The United States Federal Law can only restrict the sale of Fire Arms by Interstate means (that is, some part of the gun originate from outside of the state it is being sold in.). States are allowed to legislate additional regulations as they see fit, so long as they do not outright ban sales. A good example of this is regulation on private sales between two residents of the same states. This is outside of the jurisdiction of the Federal Government and some states require the seller to know that the buyer has a residence in that state AND will likely not commit a crime or hasn't in the past committed a crime. Other states require you to comply with the same rules as an interstate firearms purchase.

Additionally, while someone who is younger than the age restriction can still own a gun so long as it is purchased for them by a family member. This does not count as a straw-purchase and the kid has to provide his own info to the feds to make sure he isn't being looked at. Purchasing with intent to give to a person who is legally barred from owning a fire-arm is illegal.