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Constitutional – Decisions allowing gun purchases by persons under 21 vacated

Where the Fourth Circuit previously held that a federal law banning the purchase of a handgun by persons under 21 violated the Second Amendment, but the plaintiff in that case turned 21 before the mandate issued, her original claims were mooted and therefore the circuit vacated its and the district court’s opinions.


Natalia Marshall, while under the age of 21, wished to purchase a handgun from a federally licensed firearms dealer and sued to challenge the constitutionality of the federal laws and regulations which prohibited her from doing so while she was 18-20 years old. A divided panel of this court found those laws violated the text, structure, history and tradition of the Second Amendment. After the opinion issued but before the mandate, Marshall turned 21.


Once Marshall turned 21, nothing prohibited her from buying the handgun she desired from a dealer of her choice. So her original claims are now moot.

To try to breathe new life into her claims after they became moot, Marshall alleged for the first time that she wishes to sell handguns to friends under 21. Those private sales would not typically be affected by the challenged laws and regulations. But Marshall seeks to bring those sales within this court’s purview by alleging that she wishes to use a federally licensed firearm dealer to facilitate the sales (by, for example, running background checks on her friends). This newly alleged injury was raised for the first time on appeal, and only after the case became moot, so the court refuses to consider it here.

Plaintiff’s attorney moved in the district court on July 24—the day before Marshall turned 21—to join new parties that might keep the case alive. But the district court lacked jurisdiction to grant the motion. Plaintiff’s attorney only submitted a motion to this court on July 27, two days after Marshall turned 21. By that time, the case was moot. And this court cannot grant a motion to join new parties that was filed after a case is moot. So the requests to join new parties are denied. This case is moot and must be dismissed.


The government asks that this court also vacate both the panel opinions and district court opinions. In determining whether to exercise the discretion to vacate the panel decision (and that of the district court), this court is “informed almost entirely, if not entirely, by the twin considerations of fault and public interest.”

The court cannot assign fault to either party here. Marshall was bound to turn 21 in time. And though the efforts to remedy mootness came at the eleventh hour, they do not reflect any fault in Marshall’s original case.

There are strong reasons to avoid vacatur here. The constitutional interests implicated and the short timeframe in which to challenge the restrictions mean there is a strong public interest in this precedent. And “judicial precedents are presumptively correct and valuable to the legal community as a whole.”

Yet the public interest still favors vacating the opinions. To begin, the court’s “customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court’s judgment” and remand with directions to dismiss. Adherence to custom promotes the “orderly operation of the federal judicial system” and thus protects the public interest. This course also “clears the path for future re-litigation of the issues between the parties.” That the case became moot by happenstance also favors vacatur.

And the court is reluctant to leave a preclusive judgment standing against a federal agency responsible for enforcing federal law while cutting off the appellate process, particularly where the panel is split in its views. Finally, the public and the “legal community as a whole,” will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source.

Motions granted in part, denied in part. Vacated and remanded with directions to dismiss as moot.


(Wynn, J.): I join my fine colleague’s opinion in adhering to our usual practice of vacatur in mooted cases like this one. I write separately to emphasize that while, thanks to today’s technology, all vacated opinions remain available in the public sphere, they have no legal value.

Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives (Lawyers Weekly No. 001-174-21, 9 pp.) (Julius N. Richardson, J.) (James A. Wynn, J., concurring in the result) No. 19-2250. Sept. 22, 2021. From W.D. Va. (Glen E. Conrad, S.J.)

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