Outside the Beltway

20-Year-Old Sues Dick’s and Walmart Over Gun Discrimination

The inevitable response to announcements by the big box stores that they would not sell guns to those under 21 has arrived.

James Joyner
22

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USA Today (“A 20-year-old Oregon man has accused Walmart and Dick’s Sporting Goods of age-discrimination for refusing to sell him a rifle.”)

Tyler Watson filed Oregon county court lawsuits against the retailers on Monday, six days after they announced they would not sell guns to buyers under 21.The companies added the higher age restriction after the massacre at Marjory Stoneman Douglas High School in Parkland, Fla.

Oregon law allows state residents to buy shotguns or rifles as of age 18. Federal law also allows people 18 and older to buy rifles or shotguns from licensed dealers.

Watson’s lawsuits may be the first of their kind in the U.S., his attorney, Max Whittington, told The Oregonian/Oregon Live, media outlets that first reported the cases on Monday.

Several commenters here and on my social media feeds predicted this eventuality. In my lay judgment, Watson has a strong point. But Doug Mataconis, a veteran attorney, has argued that Dick’s and Walmart are likely on solid ground in terms of both the 2nd Amendment and the Civil Rights Act of 1965—but maybe not under state law in jurisdictions, such as Oregon, that have statutory guarantees.

(Hat tip: Chris Lawrence’s Facebook feed)

UPDATE: I’ve corrected the last sentence of the original post to more accurately convey the nuance of Doug’s post.

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22 responses to “20-Year-Old Sues Dick’s and Walmart Over Gun Discrimination”

  1. Jim Tantillo Avatar
    Jim Tantillo

    Looks like Eugene Volokh disagrees with Mataconis here:

    “But this case isn’t a common-law tort case, or a constitutional case, in which courts make decisions about what should or shouldn’t be covered — it’s a case applying this particular statute in this particular state. And under this statute, the case seems open and shut for the plaintiff and against Dick’s.”

    http://reason.com/volokh/2018/03/06/age-discrimination-suit-against-dicks-sp

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  2. James Joyner Avatar
    James Joyner

    @Jim Tantillo: I was linking from memory. Doug was quoting an older Volokh post—which specifically noted that there were state carveouts.

    2
  3. Daryl's other brother Darryl Avatar
    Daryl’s other brother Darryl

    I wonder how big an impact raising the age will have anyway?
    According to VOX:

    Since 2009, men under 21 committed two mass shootings with a semiautomatic rifle, according to the gun control group, Everytown for Gun Safety. Only one of the two guns used was purchased legally, meaning only one shooting (where four or more people were shot and killed) would have been prevented.

    We need big picture reform. Nibbling on the edges won’t get us anywhere.
    Here in CT we passed some pretty signifigant changes; expanding an existing ban on the sale of assault weapons, prohibiting the sale of magazines with more than 10 rounds, requiring the registration of existing assault rifles and higher-capacity magazines, background checks for all firearms sales, and the creation of a registry of weapons offenders, including those accused of illegally possessing a firearm. It works. Admittedly, a large reason it works is because our neighboring States also have strict laws. This is unlike Chicago, where gun control gets a bad rap because neighboring states have lax laws and guns can easily cross state lines.
    We need to do even more than CT, on a national level…including, IMO, rigorous training commensurate with the purpose of guns – killing people.
    Until then we will just keep sacrificing kids to the Holy God NRA.

    1
  4. TM01 Avatar
    TM01

    Seems like open and shut against Dicks.

    But I’m still trying to wrap my head around how a business can think it can deny service to someone with whom they disagree about something.

    2
  5. Kit Avatar
    Kit

    I honestly hope these efforts at pushing back against gun rights, however symbolic, lead to change. That said, I feel uncomfortable with the idea that businesses are allowed to choose their clients. Mbunge and Co are silent now, but they’ll be back at the next gay wedding-cake controversy, and on just what principle are you hoping to stand? That business men know best? That they must follow their conscience?

    4
  6. Franklin Avatar
    Franklin

    @TM01:

    But I’m still trying to wrap my head around how a business can think it can deny service to someone with whom they disagree about something.

    So you’re on the side of the gay couple who just want a cake, then?

    I can’t figure out what your comment has to do with the Dick’s case, though. They’re not disagreeing with the customer, it’s more like the bartender who refuses to serve a drunk.

    8
  7. al-Ameda Avatar
    al-Ameda

    @TM01:

    Seems like open and shut against Dicks.
    But I’m still trying to wrap my head around how a business can think it can deny service to someone with whom they disagree about something.

    Oh, a conservative believes that public accommodation laws seem to apply here?
    and … Deny service to someone with whom they disagree?
    You mean like those bakers in Colorado who refuse to bake a specialty wedding cake for that gay male couple?

    6
  8. Bob@Youngstown Avatar
    Bob@Youngstown

    A FFL dealer can refuse to sell to anyone they wish.

    This has been cited in the past as one of the features of licensed (FFL) dealers. Regardless of “passing” a NICS check, the licencee has the prerogative to not sell based on their judgement of the customer. Licensee are not obligated to sell a firearm. Thus gun sales have been denied for “looking hinky”. The point is that the dealer doesn’t need to explain the reasons.

    3
  9. Jim Tantillo Avatar
    Jim Tantillo

    @James Joyner:

    gotcha, thanks.

  10. Jim Tantillo Avatar
    Jim Tantillo

    @Daryl’s other brother Darryl:

    “This is unlike Chicago, where gun control gets a bad rap because neighboring states have lax laws and guns can easily cross state lines.”

    This statement is not really true. Virtually all gun-related crime in Chicago involves handguns. It is illegal (a) for a resident of Illinois to travel to Indiana say, and purchase a handgun in a private transaction and take possession of that handgun directly: it HAS to be shipped to an Illinois FFL, which would then necessitate a background check on the Illinois end. see https://www.law.cornell.edu/uscode/text/18/922

    Similarly, it is illegal (b) for an Indiana resident to travel to Illinois to sell handguns without going through the Illinois process of verifying an Illinois resident’s FOID status, which would also involve a background check. see http://www.gunrights4illinois.com/blog/how-to-sell-a-gun-in-illinois/

    Shadow purchases are also illegal.

    So to the extent that firearms involved in Chicago crimes do originate in “neighboring states,” it would be inaccurate to say that this is because of those states’ “lax [gun] laws.” The laws are just fine; it is simply the case that criminals choose to break the laws, which should not surprise anyone.

    2
  11. jpe789 Avatar
    jpe789

    the licencee has the prerogative to not sell based on their judgement of the customer.

    There’s a pretty clear difference between case-by-case discretion based on individualized factors and a blanket ban.

  12. Bob@Youngstown Avatar
    Bob@Youngstown

    @jpe789:

    I’m sure if they refused, as a matter of policy, to sell to black people you’d say the same thing

    And that is the point, FFL dealers are not , as a matter of policy, refusing to sell to a race of people. They can (and I believe justifiably) refuse to sell to individuals who (in their opinion) are immature and or lack emotional or societal responsibility. If that is the judgement of the FFL, the person is welcome to go elsewhere.

    1
  13. Joe Avatar
    Joe

    I am not aware that being <21 is a protected class, which differs from discriminating on the basis of race or sexual preference (in many jurisdictions).

    I don't think that Dicks or others refusing to sell to <21 will fix everything, but it's an interesting statement for a retailer to take the lead ahead of government regulation to impose a "common sense" restriction.

    2
  14. Bob The Arqubusier Avatar
    Bob The Arqubusier

    @al-Ameda: Oh, a conservative believes that public accommodation laws seem to apply here?
    and … Deny service to someone with whom they disagree?
    You mean like those bakers in Colorado who refuse to bake a specialty wedding cake for that gay male couple?

    [DELETED AD HOMINEM IN VIOLATION OF SITE POLICIES. ED.] your side won that argument. So learn to live with the price of victory — you established a principle, now you gotta live with it.

    God knows you can’t be trusted to live up to your principles just on… well, principle, but by God you’re not going to impose your rules of morality on the rest of us if you intend to utterly ignore them yourselves. You wrote these rules, you’re going to abide by them too.

    And as far as the “they can refuse any sale,” it’s just like housing, hiring, and other things — sure, you can refuse any transaction without saying why, but if you give a reason, it better be a legal one.

    Here, they gave a reason that explicitly violates the law in certain states. So they are getting sued, and they ought to lose.

  15. Daryl's other brother Darryl Avatar
    Daryl’s other brother Darryl

    @Jim Tantillo:

    This statement is not really true.

    A 2015 study found that more than 60 percent of new guns used in Chicago gang-related crimes and 31 percent used in non-gang-related crimes were bought in other states. Indiana alone provided nearly one-third of the gang guns and nearly one-fifth of the non-gang guns.
    A 2014 Chicago PD report found that Indiana accounted for 19 percent of all guns recovered by the department.
    According to the ATF, of around 8,700 firearms recovered in Illinois and for which the bureau found a source state, more than half came from out of state — 1,366, nearly 16 percent, came from Indiana alone.
    By comparison, 82 percent of guns recovered in Indiana were from within Indiana.
    It always amazes me how quickly Republican talking points melt when exposed to…you know…facts.

    1
  16. Bob The Arqubusier Avatar
    Bob The Arqubusier

    @Daryl’s other brother Darryl: D [REMOVED CHILDISH AD HOMINEM IN VIOLATION OF SITE POLICIES. – ED.]

    At least one state has a law that specifically bans age discrimination in selling firearms, as long as the buyer meets the minimum age established by law. Dick’s publicly announced that they were going to practice exactly that form of age discrimination as spelled out by law. So they’re getting sued, and all that moral posturing has made that case a slam dunk.

    1
  17. Daryl's other brother Darryl Avatar
    Daryl’s other brother Darryl

    @Bob The Arqubusier:
    Again…you were banned J E N O S. Go away.

    NOT HELPFUL. – ED.

    1
  18. Bob The Arqubusier Avatar
    Bob The Arqubusier

    @Daryl’s other brother Darryl: Here, I’ll make it simpler for you (but I don’t know if I can make it simple enough for you):

    You can’t make an argument screaming MORAL PRINCIPLE!!! and win an argument screaming MORAL PRINCIPLE!!! and then act surprised/amused/outraged when the other side expects you to abide by that MORAL PRINCIPLE!!!.

    Well, you can’t without being exposed as a lying hypocrite, and calling into question whether or not that MORAL PRINCIPLE!!! is actually a moral principle at all.

    OK, I thought of a way to make it even simpler: you don’t get to argue “you can’t discriminate! Only we get to discriminate!” without being exposed as lying hypocrites.

    Again.

    THIS IS EXTREMELY TIRESOME. YOU’RE NOT IN VIOLATION OF SITE POLICIES ON THIS ONE BUT YOU’RE NOT CONTRIBUTING ANYTHING USEFUL TO THE DISCUSSION, EITHER. – ED.

    1
  19. Jim Tantillo Avatar
    Jim Tantillo

    @Daryl’s other brother Darryl:

    “A 2015 study found that more than 60 percent of new guns used in Chicago gang-related crimes and 31 percent used in non-gang-related crimes were bought in other states.”

    the point is that they most likely were not bought legally

    check out question #4 on the ATF FAQ on private transfers:

    https://www.atf.gov/resource-center/docs/0813-firearms-top-12-qaspdf/download

  20. al-Ameda Avatar
    al-Ameda

    @Bob The Arqubusier:

    Here’s the point, moron: your side won that argument. So learn to live with the price of victory — you established a principle, now you gotta live with it.

    Wow, you have no idea what this is about, do you?

    2
  21. Doug Mataconis Avatar
    Doug Mataconis

    As I noted in my original post, I can’t speak to the state law issues implicated here, or which may be implicated in future lawsuits in states where it may be possible to maintain such lawsuits. I’m certainly not going to disagree with Professor Volokh, who has apparently done research I have not, regarding this Oregon lawsuit.

    That being said, as a policy matter I don’t see why these policies should not be viewed any differently from the age restrictions that movie theaters place via the ratings systems, or the policy that most major car rental companies have regarding renting to people aged 25 or less.

    Additionally, this issue would be mooted if the states in question pass a law banning sales of guns other than handguns to people under 21. Or if Congress passed a national law on the issue, but don’t hold your breath on that one.

    1
  22. James Joyner Avatar
    James Joyner

    @Doug Mataconis:

    I don’t see why these policies should not be viewed any differently from the age restrictions that movie theaters place via the ratings systems, or the policy that most major car rental companies have regarding renting to people aged 25 or less.

    Interesting comparisons. Offhand, I’d say movie ratings exclusions are fine since 17 is the top age threshold and that’s minor status in every state I’m aware of. But the need to be 25 to rent a car is much more comparable–simply an industry judgment of risk. For that matter, ditto insurance companies charging different rates, based on age and sex, for liability coverage.

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