Experts disagree with Abbott that it’s unconstitutional to raise the minimum age to purchase AR

Amid calls for a special legislative session after the May 24 school shooting in Uvalde, Texas, the state's governor, Greg Abbott, has not changed his stance on gun laws or on calling a special session.

Uvalde community members have called on officials to raise the minimum age from 18 to 21 to purchase semi-automatic rifles, like the AR-15-like assault-style rifle used to kill 19 children and two teachers at Robb Elementary. Some states have raised the age to buy a semi-automatic rifle to 21, according to the Giffords Law Center to Prevent Gun Violence.

While campaigning for re-election on Aug. 31, Abbott said the law that Uvalde residents are seeking "has already been ruled to be unconstitutional."

"There have been three court rulings since May that have made it clear that it is unconstitutional to ban someone between the ages of 18 and 20 from being able to buy an AR. That came out of the federal court of appeals," Abbott said, also claiming there was a Supreme Court decision that upheld the ruling. He also said "a federal court in Texas struck down the Texas law that banned people between the ages of 18 and 20 from buying a handgun."

"So, it is clear that the gun control law that they’re seeking in Uvalde, as much as they may want it, it has already been ruled to be unconstitutional," said Abbott, a former Texas attorney general and Texas Supreme Court justice.

PolitiFact Texas took "AR" in Abbott’s claim to mean AR-15, a type of semi-automatic weapon. For this fact-check, we looked at whether the rulings pertained to AR-15s, or more broadly semi-automatic weapons.

PolitiFact Texas spoke with experts and found that Abbott spoke broadly on those court rulings, and there has been no Supreme Court ruling addressing the constitutionality of raising the minimum age to purchase a semi-automatic weapon.

Abbott’s office said these are the court rulings Abbott had in mind:

• New York State Rifle and Pistol Association Inc. v. Bruen in the U.S. Supreme Court, decided in June;
• Firearms Policy Coalition Inc. v. McCraw in Texas, decided in August; and
• Jones v. Bonta in California, decided in May and vacated in September.

Steven Vladeck, a University of Texas law professor, said, at most, only one case out of the three was apparently relevant to his claim, but that ruling was vacated in September. The Supreme Court case has nothing to do with age limits on gun purchases, and the Texas ruling pertains to ages but not semi-automatic rifles. The California 9th Circuit ruling, now vacated, addressed  age limits to purchase semi-automatic weapons, including AR-15s.

The Supreme Court case examined what kind of proof is required for law-abiding citizens to carry handguns outside the home for self-defense. It decided in June that the state of New York cannot require proof of "proper cause" to carry, or "a special need for self-defense."

The case dealt with a narrow question — what proof is required to carry a handgun in public, executive director of the Duke Center for Firearms Law Andrew Willinger, said.

In the case, the Supreme Court dismissed the second step in a two-step legal test developed by the lower courts for gun law cases. This framework will be used to determine constitutionality in future Second Amendment court cases.

For the first step, the Supreme Court said the burden is on the government to come up with historical gun laws that are similar to the types of law at issue in a case. 

The test's second step was weighing the government’s justification for the law and the burdens the law imposed, Willinger said. Justifications could include, for example, empirical studies that the law in question makes the state safer. 

"I think it’s fair to say that Bruen is probably the most originalist or history-focused decision that the court has issued, maybe ever. It’s a real departure from what the lower courts were doing before," Willinger said. 

In the second case Abbott mentioned, a Texas federal judge ruled in August that the state law prohibiting 18-, 19- and 20-year-olds from legally carrying a handgun violates the U.S. Constitution and cannot be enforced.

That federal judge said the Second Amendment guarantees "the right of the people to keep and bear Arms," and people is taken to mean "the whole people," the judge wrote. This means 18-, 19- and 20-year-olds are included. The decision is expected to be appealed to the U.S. 5th Circuit Court of Appeals.

The California 9th Circuit case addressed the question of raising the minimum age to purchase semi-automatic weapons. It had struck down the law that restricted 18- to 20-year-olds from purchasing semi-automatic rifles, while keeping the law requiring a hunting license for a young adult to purchase a long gun.

This case, however, was not decided with the new framework from the Supreme Court because the Supreme Court case was decided before this case, Willinger said.

The 9th Circuit had made its decision in May. Abbott spoke in August. Then, in September, the 9th Circuit vacated the decision. It remanded the case to the district court level to apply the framework from the Supreme Court case, Willinger noted. The decision had not been remanded when Abbott made his claim.

"I think it would be a fair guess to say that the law is still in some jeopardy, but we just don’t know and it’s going to take some time for the case to work its way all the way back up," Willinger said.

In a separate case, a federal judge found Florida’s law restricting the purchase of semi-automatic rifles to people 21 years and older to be constitutional. Abbott did not mention that ruling, which the National Rifle Association is appealing.

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Willinger said it’s tough to say raising the minimum age is unconstitutional based on three rulings and no Supreme Court decision to settle the question.

"As you get fewer decisions on point, and at lower levels of the court system, it becomes very difficult to say it is clear or unclear that something’s unconstitutional. It’s just sort of an open question," Willinger said.

"I think when you say it’s clear something is unconstitutional, generally that would mean the Supreme Court has ruled on the specific question and made a decision one way or the other," Willinger added.

Adam Winkler, a University of California, Los Angeles School of Law professor, told PolitiFact Texas that Abbott’s claim was wrong because the Supreme Court did not say anything about age restrictions on concealed carry.

"Also, while two cases have recently held 18-to-21 year restrictions unconstitutional, other courts have upheld such restrictions," Winkler wrote in an email. "The 5th Circuit did so a few years back in a case that was appealed to the Supreme Court, and the justices allowed that ruling to stand. The justices have changed since then, but it remains to be seen if 18-21 age restrictions are truly unconstitutional."

Esther Sanchez-Gomez, a senior litigation attorney at the Giffords Law Center To Prevent Gun Violence, said Abbott’s claim is inaccurate. The center advocates for gun legislation. She said in an email that the decisions are narrower than Abbott implies.

"It is limited to the right to apply for a permit to carry (a) handgun in certain public spaces," Sanchez-Gomez said in an email regarding the Texas ruling. "The court decided nothing about the constitutionality of restrictions on types of especially-lethal long guns, like ARs."

For the New York concealed carry ruling, she noted that the Supreme Court reaffirmed the Second Amendment right is "not a right to keep and carry any weapon whatsoever and for whatever purpose."

The court wrote there is historical tradition behind prohibiting the carrying of dangerous and unusual weapons while the Second Amendment protects the possession of weapons in common use.

"In short, Gov. Abbott is misinterpreting jurisprudence in order to attempt to defend his refusal to support common sense gun safety regulations," Sanchez-Gomez wrote.

Abbott claimed that three court rulings since May 2022 "have made it clear that it is unconstitutional to ban someone between the ages of 18 and 20 from being able to buy an AR."

Only one of the cases Abbott cited directly addressed limiting purchases of semi-automatic rifles. A California judge ruled the age restriction was constitutional and an appeals court disagreed, before vacating the ruling after Abbott’s statement. But Abbott also didn’t mention a case in Florida that is being appealed, in which a judge found the age limit did pass constitutional muster.

Furthermore, the Supreme Court hasn’t weighed in on an age limit.

We rate Abbott’s claim Mostly False.