In the wake of the shooting this past February at Majorie Stoneman Douglas High School in Florida, there were a number of calls made for changes in the law. The most prominent of those changes was a change in the law that allowed people between the ages of 18 and 20 to purchase rifles and other long guns, which differs from current Federal law that prevents anyone under 21 from purchasing a handgun. In some cases, such as the new laws that were adopted in Florida in the wake of the shooting, the changes were made in the law. Beyond those changes, though, a number of national retailers, such as Dick’s Sporting Goods, Walmart, Kroger, and L.L. Bean announced that they will no longer sell any type of weapon to anyone under 21 years of age regardless of what the applicable law might be.

While it seemed apparent under the 2nd Amendment and applicable Federal law that these decisions by private retailers would be legal, there are a handful of states that have laws barring age discrimination that would appear to make the age restrictions illegal. As a result, we saw lawsuits filed against Dick’s Sporting Goods by people under 21 in Oregon and Michigan who allege that the policy violates the state laws barring age discrimination. Joining those lawsuits is an allegation by the Oregon state agency charged with enforcing its anti-discrimination laws that the policy violates state law:

The Oregon Bureau of Labor and Industries issued a memo this week suggesting that it is illegal for retailers to restrict gun and ammunition sales based on the buyers age.

Hannah Brumbles, an 18-year-old from Deer Island in unincorporated Columbia County, filed a complaint with the state after a Walmart store in St. Helen’s refused to sell her a rifle or ammunition last February because she was younger than 21.

Oregon law allows individuals 18 and older to purchase firearms, but a variety of regional and national retailers, including Walmart, adopted more restrictive policies following the mass shooting in Parkland, Florida. Former student Nikolas Cruz, 19, is accused of killing 17 people, including 14 students and three staff members, at Marjory Stoneman Douglas High School on Feb. 14.

Brumbles’ complaint alleged that the policy was discriminatory and violated the Oregon constitution. BOLI found that Brumbles did have grounds for the discrimination complaint, and has scheduled a hearing in November where it will hear Walmart’s response and formally rule on the matter.

Brumbles is seeking damages for physical, mental and emotional distress, which could be as high as $5,000.

Walmart will defend its policy. “In February of this year, we reviewed our policy on firearm and ammunition sales and as a result, we raised the age restriction for the purchase of those items to 21,” said Randy Hargrove, a company spokesman. “We stand behind our decision and plan to defend it. We are preparing for the November hearing before the administrative law judge.”

As Eugene Volokh makes clear, Oregon law on the issue of discrimination based on age in retail sales seems to be clear, and there does not appear to be an exemption when it comes to firearms:

659A.403 Discrimination in place of public accommodation prohibited. (1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

(2) Subsection (1) of this section does not prohibit:

(a) The enforcement of laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served;

(b) The enforcement of laws governing the use of marijuana items … by persons under 21 years of age and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold; or

(c) The offering of special rates or services to persons 50 years of age or older.

(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section….

659A.406 Aiding or abetting certain discrimination prohibited. Except as otherwise authorized by ORS 659A.403, it is an unlawful practice for any person to aid or abet any place of public accommodation, as defined in ORS 659A.400, or any employee or person acting on behalf of the place of public accommodation to make any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.

659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors, the use of marijuana items … by persons under 21 years of age, the frequenting by minors of places of public accommodation where alcoholic beverages are served and the frequenting by persons under 21 years of age of places of public accommodation where marijuana items are sold, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

As I noted in my post on age restrictions on gun sales, it’s clear that. at least under Federal law, there is no legal basis for a claim against a retailer for age discrimination. The Second Amendment obviously doesn’t apply here since that Amendment applies only to government action, not the private action of retailers. Therefore, we must look to the statutes to determine if these policies are valid. In the case of Federal law, though, the principal Federal anti-discrimination law, the Civil Rights Act of 1964, does not cover retail sales and also does not bar discrimination based on age. As I noted at the time, though, there are laws on the books in roughly one-third of the states that do bar age discrimination and which do not appear to have exemptions for retail sales in general or gun sales in particular, meaning that the decisions by Dick’s, Walmart, or other retailers to bar gun sales based on age could be subject to legal challenge. At the time, I expressed doubt that such a lawsuit would be successful and that the retailers could make an at least credible argument that their policies are well-founded and should not subject them to liability under the stated law. All of these cases will need to be fully litigated, of course, so it will be interesting to see what the Judges at the state level have to say on the matter. As it stands, though, the language of the laws in both states appear to strongly favor the Plaintiffs in both cases.

These lawsuits would largely be moot, of course, if there is legislation drafted at either the state or Federal level that would restrict gun sales based on age as a matter of law. On the Federal level, while it does appear that there is at least some verbal support for this kind of legislation from President Trump and from both Republican and Democratic Senators and Members of Congress However,  it’s unclear that Congress will be strongly motivated on that or any other issue related to gun control at any point this year. At the same time, though, Governors on both sides of the aisle have voiced support for the idea of changing state law on the issue and it seems likely that many of those states will actually follow through on action regardless of what happens at the Federal level. This is easier said than done in many states, of course, and it seems more likely to happen in states controlled by Democrats than in those where the legislature and/or the Governor’s Mansions are controlled by Republicans. With respect to the two states where lawsuits have been filed, Michigan currently has a Republican-controlled legislature and a Republican Governor, so it’s unclear whether any kind of state-based age restriction bill would even be considered. Oregon, on the other hand, has both a Democratic Governor and a state legislature under Democratic control, so that state may be more ripe for reform. In that regard, though, it’s worth noting that both states have a strong hunting tradition that could make any move to further restrict gun sales difficult even for Democrats. If such state laws are passed, though, then any legal claims of age discrimination would appear to be moot, and lawsuits against the laws restricting gun sales based on age are unlikely to be well-received by courts.

In the instant case, the Complaint that has been filed against Walmart will be heard by the relevant state agency in a proceeding set to begin in November. How long after that it will take for a decision to be reached is not at all clear and, of course, the losing side would have the right to appeal that decision to an Oregon state court or whatever other forum is charged with hearing appeals in this type of case. Eventually, it could end up being reviewed by the Oregon Supreme Court, but it’s not likely to reach the U.S. Supreme Court due to the fact any such case would be raising solely issues of state law. In the meantime, as I said above, this issue could easily be resolved via Federal or state law. But that’s unlikely to happen any time soon.