On September 17, 2026, the Department of Justice’s Office of Legal Counsel released a 49-page opinion concluding that 18 U.S.C. § 922(b)(1) and (c)(1) — the federal law barring licensed dealers from selling handguns to 18-, 19-, and 20-year-olds — is unconstitutional under the Second Amendment and may no longer be enforced. The opinion, addressed to Attorney General Todd Blanche and signed by Assistant Attorney General T. Elliot Gaiser, is not a court ruling. But it is the executive branch’s own lawyers telling the Attorney General that a decades-old gun law cannot survive the text, history, and tradition test this Court has demanded since Bruen.
What the Opinion Concludes
OLC’s summary states the holding without hedging: “Section 922(b)(1) and (c)(1) of title 18, U.S. Code, is unconstitutional as applied to young adults between eighteen and twenty who seek to purchase handguns. The provision prevents young adults, who are members of ‘the people’ to whom the Second Amendment applies, from owning ‘arms’ in common use for self-defense. This places the burden on the government to show that the restrictions are consistent with the Nation’s tradition of firearm regulation, which it cannot do.”
That is the plain-text-then-history methodology I have taught for years: start with the words of the Second Amendment, ask what “the people” meant to the Americans who ratified it in 1791, and only then does the burden shift to the government to justify a restriction against the historical record. OLC applied that framework and the government loses.
Eighteen-to-Twenty-Year-Olds Are Part of “The People”
The opinion frames the question as one the Supreme Court itself teed up in Wolford v. Lopez, 146 S. Ct. 2032, 2043 (2026), which built on the individual right recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). As OLC put it: “Key to your query is Wolford’s first subsidiary question: whether American citizens, as well as others with a sufficiently close voluntary connection to this country, who have not yet reached the age of twenty-one are among ‘the people’ whom the Second Amendment protects. We think the better view is that they are.”
OLC grounded that in Heller’s own definition, quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990): “‘the people’ is ‘a term of art employed in select parts of the Constitution’ to ‘refer[] to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.’” Eighteen-to-twenty-year-old Americans are, on any honest reading, part of that community — the point I made in the Georgetown Journal of Law and Public Policy, and one the Department of Justice now embraces.
The Militia Act of 1792 Settles the Question
The strongest evidence in the opinion is historical: the Militia Act of 1792. OLC explains that founding-era legislation was “nearly unanimous that the age of compulsory militia service should begin at eighteen.” Of “the more than 250 militia statutes passed by the colonies and fledgling states” around the time of ratification, 249 “require[d] militia service by eighteen-to-twenty-year-olds.” That included the Militia Act itself, enacted by the Second Congress “months after the Second Amendment’s ratification,” which enrolled “each and every free able-bodied white male citizen” between “the age[s] of eighteen” and “forty-five,” and required that “every” enrollee “provide himself with a good musket or firelock … or with a good rifle.”
You cannot draft citizens into the militia, order them to arm themselves at their own expense, and then claim they have no constitutional right to buy the weapon you conscripted them to carry. The Second Amendment was ratified in 1791; the Militia Act followed months later, in 1792. The founding generation saw no tension between those two facts, because there was none.
An Absurd Result, and a Deliberate Silence
OLC catalogs how untethered the current rule is from how the law treats eighteen-year-olds everywhere else. Our laws deem an eighteen-year-old “mature enough to be drafted, vote, serve as a juror, and be sentenced to death,” yet a dealer who sold that same eighteen-year-old a handgun would be committing a federal felony. A regime that trusts an eighteen-year-old with the vote, the jury box, and the draft, but not a handgun purchase, reflects an arbitrary line the historical record cannot support.
The opinion also makes a structural point: the Framers knew how to write an age limit when they wanted one. “Where age was thought to matter, the Constitution imposes express age limits. The Second Amendment does not.” The Constitution sets the House at twenty-five, the Senate at thirty, the presidency at thirty-five. “That the Framers considered age and plainly knew how to set age requirements suggests that the absence of a qualification on the right to bear arms was deliberate.” That silence is not an oversight. It is a choice, and OLC read it correctly.
What This Opinion Does, and Does Not, Do
An OLC opinion binds the executive branch’s own enforcement discretion; it does not bind courts, states, or future administrations, and it does not repeal the statute. Section 922(b)(1) and (c)(1) remain on the books unless Congress acts or a court strikes them down. What changed on September 17 is that DOJ will no longer treat licensed dealers as felons for selling a handgun to a law-abiding eighteen-, nineteen-, or twenty-year-old — real relief for the dealers and the young Americans who rely on them. The historical record fully supports that conclusion.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.