Judge Uses ‘Infancy Doctrine’ to Uphold Hawaii’s Under-21 Gun Ban

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A federal judge upheld Hawaii’s firearm ban for adults under 21 by treating Founding-era limits on minors entering contracts as a historical analogue for modern gun control. iStock-1472856584

A federal judge has upheld Hawaii’s sweeping gun ban for adults under 21 by treating Founding-era restrictions on minors entering contracts as evidence of a historical tradition of denying them access to firearms.

In a 43-page order, U.S. District Judge Jill A. Otake denied the plaintiffs’ motion for summary judgment, granted Hawaii Attorney General Anne Lopez’s counter-motion, and directed the clerk to enter judgment for the state and close the case.

The lawsuit was originally filed as Pinales v. Lopez but is now captioned Roache v. Lopez following the dismissal of plaintiff Elijah Pinales. The remaining plaintiffs are Juda Roache, the Second Amendment Foundation, and Hawaii gun dealers Aloha Strategics LLC and JGB Arms LLC.

AmmoLand previously covered the lawsuit when SAF challenged Hawaii’s prohibition on otherwise qualified adults between 18 and 20 acquiring firearms or ammunition.

Hawaii does not merely prevent federally licensed dealers from selling handguns to adults under 21. State law generally prevents them from acquiring any firearm through purchase, gift, inheritance, bequest, or almost any other means. It also broadly restricts their ability to acquire and possess ammunition, subject to narrow exceptions for activities including hunting and target shooting.

Roache is between 18 and 20 and would apply for a permit, purchase firearms and ammunition, and accept a firearm from his mother if Hawaii allowed it. The state did not allege that he was prohibited for any reason other than his age.

Court Admits Adults Under 21 Have Second Amendment Rights

The court rejected Hawaii’s preserved argument that adults under 21 fall outside “the people” protected by the Second Amendment.

“The Court is satisfied that 18- to 20-year-olds are part of ‘the people,’” Otake wrote.

The judge also acknowledged that Hawaii’s acquisition ban implicates the right to “keep” arms. The ability to possess a firearm does not mean much if the government can prevent a citizen from legally acquiring one.

That should have placed the burden squarely on Hawaii to identify a historical tradition supporting its law. The state could not point to a Founding-era statute that prohibited 18-to-20-year-olds from acquiring all firearms and ammunition. Instead, the court allowed Hawaii to use general contract law as a substitute for an actual firearm restriction.

Founding-Era Contract Law Becomes Gun Control

At the Founding, people under 21 were generally considered minors under the common-law “infancy doctrine.” Their contracts could usually be voided unless they involved necessities such as food, clothing, medicine, or education.

Because cash was limited, commerce often depended on credit, and children’s wages generally belonged to the head of the household, the court concluded that people under 21 were functionally unable to purchase firearms on their own.

From there, the judge determined that the infancy doctrine and Hawaii’s modern gun ban burden the right in a similar way and for a similar reason. Both, according to the court, reflected concerns about the judgment and maturity of people under 21.

That reasoning turns an old rule governing contracts generally into a historical firearm regulation. It also ignores the difference between a contract that could be voided and a modern criminal prohibition preventing an otherwise qualified adult from acquiring the means to defend himself.

The court further rejected the plaintiffs’ argument that today’s 18-to-20-year-olds are legal adults. According to the ruling, the contractual age of 21 at the Founding was not tied to a shifting general age of adulthood.

In other words, Hawaii may treat someone as an adult for most legal obligations while declaring him too immature to exercise an enumerated constitutional right.

Judge Discounts Armed Militia Service Beginning at 18

The plaintiffs also relied on the Militia Act of 1792, which enrolled able-bodied white male citizens beginning at age 18 and required them to appear armed.

That history has played a central role in other young-adult gun cases. In Reese v. ATF, the Fifth Circuit found that adults between 18 and 20 are part of “the people” and struck down the federal ban on FFL handgun sales to them.

The Hawaii court took the opposite view.

Otake reasoned that militia service was an obligation rather than proof of an individual right to acquire firearms outside militia service. She emphasized state militia laws that placed responsibility for supplying some young militiamen with weapons on their parents or guardians.

The ruling expressly found the Fifth Circuit’s reasoning in Reese less persuasive than decisions from the Fourth and Eleventh Circuits upholding other age-based restrictions.

That leaves the federal courts badly divided. Adults under 21 do not gain or lose their Second Amendment rights when they cross a circuit boundary, but the courts are increasingly treating them as if they do.

Later Pistol Laws Used to Uphold a Ban on Every Gun

The court encountered a bigger historical problem when it considered Roache’s desire to accept a firearm from his mother.

The judge acknowledged that the record contained no specific Founding-era evidence showing that parents were prohibited from giving firearms to their children. Militia laws requiring parents to provide arms could point in the opposite direction.

The court called the Founding-era record on family transfers “ambiguous.” But rather than hold that Hawaii failed to meet its burden, the judge invoked what the Ninth Circuit has called a “more nuanced approach” and placed greater weight on laws enacted during the second half of the 19th century.

Those later laws often prohibited selling, loaning, or giving pistols and other concealable weapons to people under 21. Some did not contain exceptions for parental gifts.

The court nevertheless acknowledged that Hawaii’s law is broader. Most of the cited historical restrictions concerned pistols and concealable weapons, while Hawaii bars adults under 21 from acquiring rifles, shotguns, handguns, and ammunition.

The judge bridged that gap by reasoning that modern rifles are more effective for violence than 19th-century muzzleloading long guns. The court then extracted a much broader supposed historical principle: government may restrict firearm acquisition by anyone under 21.

That is precisely where the ruling stretches Bruen beyond recognition. Historical analogues are supposed to test whether the government has traditionally possessed the authority it now claims. They are not raw material from which judges may manufacture broader regulatory powers that the historical laws never exercised.

Hawaii’s Ban Survives…For Now

The final ruling converts Founding-era contract law into gun control, discounts militia service beginning at 18, and uses later restrictions on concealable weapons to uphold a modern ban covering virtually every firearm.

The court admitted that adults under 21 are among “the people.” It admitted that acquiring a firearm is protected by the Second Amendment’s plain text. It admitted that the Founding-era record did not clearly support banning parental gifts. It also admitted that Hawaii’s law sweeps more broadly than the later historical restrictions.

Hawaii still won.

The Second Amendment does not establish a second-class form of citizenship for adults between 18 and 20. A right belonging to “the people” cannot be converted into a privilege withheld until the state decides a citizen is mature enough to exercise it.

About Duncan Johnson:

Duncan Johnson is a lifelong firearms enthusiast and unwavering defender of the Second Amendment—where “shall not be infringed” means exactly what it says. A graduate of George Mason University, he enjoys competing in local USPSA and multi-gun competitions whenever he’s not covering the latest in gun rights and firearm policy. Duncan is a regular contributor and editor-in-chief for AmmoLand News and is responsible for AmmoLand’s daily gun-rights reporting and industry coverage.