- The Washington Times - Sunday, March 4, 2018

As stores rush to impose a minimum age of 21 for gun purchases, some Second Amendment supporters say like-minded people should consider mounting legal challenges, saying the companies may have a hard time defending against claims of age discrimination for a core constitutional right.

Dick’s Sporting Goods, Walmart, Kroger and other major national brands have announced they’ll impose an age requirement in the wake of last month’s shooting in Florida, in which police say 19-year-old suspect Nikolas Cruz used a rifle he legally purchased.

Some legal analysts predicted the companies’ policies would hold up, saying they have a right to refuse sales. But others say there’s room for a challenge.

“If these billionaire corporate bullies are illegally discriminating against people based on their age, then maybe some 19- or 20-year-old law-abiding gun owners should sue them,” said Brandon Combs, president of the Firearms Policy Coalition, a nonprofit advocacy group.

The FPC pointed to recent data from the National Conference of State Legislatures (NCSL) saying more than one-third of the states in the country have public accommodation or civil rights laws that prohibit age-based discrimination.

Matthew Maruster, a firearms instructor from Ohio, said there could indeed be a “protected class” argument to be made for people ages 18-20 who can legally buy a gun but wouldn’t be able to do so at those stores.

“I don’t know if that’s going to hold up in court,” said Mr. Maruster, who has written about the constitutionality of private stores prohibiting the concealed carry of weapons where it’s otherwise legal.

“You can’t discriminate against someone based on their age,” he said. “I think that would be the angle if someone would say ‘Hey, I want to sue Dick’s Sporting Goods because they’re keeping me from being able to buy a gun based on my age.’”

He added, though, that an actual legal challenge could be an uphill battle, as courts have sided with private businesses in other similar cases — including a gun store in Florida that got an anti-discrimination suit tossed by a federal judge in 2015 after banning Muslims from the store.

The Florida chapter of the Council on American-Islamic Relations had sued on civil rights grounds, but District Judge Beth Bloom said in her ruling that “there are simply no facts grounding the assertion that plaintiff and/or one of its constituents will be harmed.”

Gun-rights groups, like the FPC and others, are at the very least vowing to make the companies pay a business price for the new restrictions.

“Part of what we want to tell Dick’s Sporting Goods is ‘good riddance,’” said Dudley Brown, president of the National Association for Gun Rights. “They might as well fold their entire hunting and firearms sales down, as they’re going to sink like a rock.”

But the lawyer for Mr. Brown’s group said the businesses are likely in the clear on legal and constitutional issues.

Federal age discrimination protections only relate to certain categories of commerce or employment, and generally only cover discriminatory practices against older people, said James Bardwell, NAGR’s in-house counsel.

“Picking on 21-year-olds in any category of commerce is not prohibited by federal law,” he said. “I have not reviewed the anti-discrimination laws of every state, but I have never heard of any state law that bars discrimination against young people — only old people.”

Adam Winkler, a professor at the UCLA School of Law, agreed.

“There is no constitutional issue whatsoever,” Mr. Winkler, who has written extensively on Second Amendment issues, said in an email. “The Constitution limits what government can do, not what a private business can do.”

Federal law already prohibits federally licensed gun dealers from selling rifles and shotguns to people under the age of 18 and handguns to people under the age of 21.

Illinois and Hawaii are two states that have already passed their own laws banning people under 21 from buying certain kinds of rifles. Some federal lawmakers are now looking to pass similar legislation in Congress.

But police say that Mr. Cruz carried out his recent attack with an AR-15-style rifle he bought legally. Mr. Cruz also bought a shotgun at Dick’s last year, though he did not use it in the Feb. 14 attack on Marjory Stoneman Douglas High School, his old high school.

Dick’s, Walmart, Kroger, and L.L. Bean — which also announced a new minimum age of 21 for gun purchases last week — did not respond to questions about the legality of the new age limits. They have cited the recent Parkland shooting as the impetus for the move.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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