The Constitutionality of Arizona’s Concealed Carry Age Restrictions

By Bobby Corridan. 

While Arizona has relatively few firearm regulations that distinguish young adults (eighteen-, nineteen-, and twenty-year-olds) from the rest of adults, Arizona’s concealed carry permitting scheme, A.R.S. 13-3112, does just that. Currently, Arizonans under the age of twenty-one are barred from obtaining concealed carry permits. However, if they have served or are currently serving in the armed forces, they may obtain a concealed carry permit at nineteen. 

Many states have similar concealed carry restrictions, and some go even farther than Arizona’s restrictions. Changes in the Supreme Court’s Second Amendment jurisprudence, however, might render Arizona’s concealed carry restrictions ripe for a constitutional challenge.

The Beginning of the Modern Second Amendment Jurisprudence

Throughout much of our nation’s history, the scope of protections afforded by the Second Amendment has been largely undetermined. It wasn’t until 2008 in D.C. v. Heller that the Supreme Court held that the Second Amendment guaranteed an individual right to keep and bear arms. There, the Court determined the core right protected by the Second Amendment was self-defense, and consequently the federal ban on D.C. residents keeping handguns in their homes was unconstitutional. Just two years later, in McDonald v. City of Chicago, the Court used the Fourteenth Amendment to incorporate that same individual right—to keep and bear arms for self defense—against the states. The Court also emphasized that our nation’s history and tradition of firearm regulations ought to serve as the foundation of future Second Amendment analysis.

The Supreme Court did not, however, provide lower courts with a clear analytical framework or sense of what exactly the Second Amendment protected. The Court instead only reminded them that, by ratifying the Second Amendment, the framers had taken certain policy choices out of the hands of the legislatures. Over the next decade, lower courts developed their own framework, which weighed the government’s interest in regulation against the severity of the restriction through the lens of comparable historical regulations.

The Second Amendment Today

In 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, which rejected the lower courts’ framework completely. The majority replaced the lower courts’ balancing framework with a harsher framework based solely on the nation’s history of firearm regulation. Now, if a statute restricts conduct covered by the text of the Second Amendment, the statute is presumptively unconstitutional. Governments can only overcome this presumption by showing that its restriction is consistent with the nation’s historical tradition of firearm regulation by pointing to “relevantly similar” restrictions in the nation’s history, especially regulations enforced around the time of the Second Amendment’s ratification.

In implementing this new framework, lower courts began finding many long-standing statutes unconstitutional. Most notably, within a year of the Supreme Court deciding Bruen, the Fifth Circuit found that 18 U.S.C. § 922(g)(8)—a provision limiting firearm access for individuals subjected to civil domestic violence restraining orders—violated the Second Amendment. But in an 8-1 decision, in United States v. Rahimi, the Supreme Court reversed the Fifth Circuit and upheld the statute’s constitutionality. Instead of altering Bruen’s framework, the Court identified founding era laws that served as historical  analogues to the restrictions in Rahimi, demonstrating that it is possible to uphold a modern restriction within the harsher framework.

How Might Arizona’s Restriction Hold Up?

Against this backdrop, lower courts have been tasked with deciding the constitutionality of various firearm restrictions arising out of constitutional challenges brought by young adults. And unfortunately for the governments tasked with defending them, these restrictions have largely been found unconstitutional. While the Ninth Circuit has yet to address restrictions on young adults and concealed carry permits within the Bruen framework, the Fifth Circuit recently found the federal statute banning federally licensed firearm dealers from selling firearms to people under the age of 21 unconstitutional. 

In analyzing firearm restrictions on young adults, courts generally conclude there weren’t any relevantly similar, founding-era regulations that distinguished young adults from those twenty-one and older. In these cases, the only historical regulations that the courts have found relevantly similar were put in place in the wake of Reconstruction—too far removed from the founding to show an unbroken history and tradition of regulation. 

Like these other restrictions, Arizona’s concealed carry statute inhibits many young adults from exercising their core Second Amendment right of self-defense. Because lower courts are struggling to find historical regulations that justify distinctions as to young adults, Arizona’s restriction may very well be unconstitutional.