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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?

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    Possible duplicate of Can companies add their own age restrictions to sales? – Dale M Mar 2 '18 at 0:13
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    Private entities (such as the three companies you mention) can also restrict people's speech in some contexts. This does not violate the first amendment, because (like the second amendment) the first amendment does not apply to private entities. – phoog Mar 2 '18 at 3:06
  • "...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?" The question could maybe motivate more why this would/should be the case? It seems unconnected. The Second amendment looks like a right to carry something, not a duty to sell something to me. – Trilarion Mar 5 '18 at 13:01
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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....

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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.

  • Most car rental compaines will not rent to anyone under 25. Generally age discrimination refers to discrminating on the basis of being too old. No 10 year old can open a bank account, get a credit card, buy a car, etc. A 16-year-old can be prevented (by a private business based on the business' discretion) from buying a ticket for an R-rated movie at a movie theater. The list of other discrimination for the reason of being "too young" goes on and on. A 15-year-old can usually buy a paper which can have content just as violent as an R-rated movie. So these restrictions are made privately. – grovkin Mar 4 '18 at 20:15
  • Except for car rental, these pertain to the inability of minors to form contracts. I don't know if anyone has pushed the point in a state like Connecticut that omission of a threshold age (e.g. 40) literally means that the age 25 rental thing violates state discrimination laws. The intent was probably to exclude "too old", but the wording doesn't always match. – user6726 Mar 4 '18 at 20:58
  • Not being able to purchase a movie ticket has nothing to do with not being able to form a contract. Kids can buy all kinds of things in retail establishments (candy, CDs, etc.) But a private movie theater chain can pick and choose whether or not to sell them a movie ticket. Retail purchases have nothing to do with forming contracts. They are not negotiated actions. – grovkin Mar 5 '18 at 4:58
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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.

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    I don't understand how the example in your last paragraph relates to the situation at hand. The issue isn't about choosing where you buy your guns, but rather those selling guns determining minimum ages to sell to (or, in your example, Girl and Boy Scouts selling to people based on their age). – NeutronStar Mar 1 '18 at 21:33
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    @Joshua The point of the example is to illustrate that just because something is legal doesn't mean people are obliged to do it. – ohwilleke Mar 1 '18 at 22:11
  • @ohwilleke, yes, but that's only a partial answer to my question. I'm specifically asking if it is illegal to do something, not merely legal but chosen not to – NeutronStar Mar 2 '18 at 15:20
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    @Joshua the point is that it is not illegal to chose not to do something legal, even as a matter of policy. I have no right to compel a business to sell something to me even if I am legally allowed to buy it, subject to narrow exceptions (e.g. racial discrimination in public accommodations) that don't apply. And as a matter of legal theory, those statutes were enacted under the interstate commerce clause, not the enforcement clause of any constitutional amendments. – ohwilleke Mar 3 '18 at 0:59
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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.

  • This answer raises many interesting points, but none of them go to the constitutionality under the Second Amendment of a store's refusal to sell firearms to someone who is legally allowed to buy them. – ohwilleke Mar 1 '18 at 20:19
  • @ohwileke: Only the government can be found guilty of an Unconstitutional Action, so a private organization such as a store chain may certainly add additional restrictions to what the Federal Government allows. The Constitution has no effect on store police. – hszmv Mar 1 '18 at 21:46
  • "(that is, some part of the gun originate from outside of the state it is being sold in.)" is there a case on this? I know for drugs this is not true. – user4460 Mar 1 '18 at 21:56
  • @notstoreboughtdirt en.wikipedia.org/wiki/Commerce_Clause It's in the Constitution as a Power of Congress to regulate it. Under several Gun Control Acts (passed in 1938, with additional restrictions added in 1968 and again in 1993) that all Gun Dealers in the United States must have a Federal Firearms License to sell guns. Part of that licenses is a federal background check prior to sale of any firearm to any customer. In addition, any private purchase of Firearms between two residents in two different states must be handled by FFL dealers. – hszmv Mar 1 '18 at 22:09
  • @hszmv I think you are mixing can and has. The current laws only regulate a certain type interstate trade of guns, but a broader type of commerce regulation was upheld in a drug case. – user4460 Mar 1 '18 at 22:18

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