I suppose we all knew this was coming but I didn’t realize it would happen so fast. After a number of outlets bowed to public pressure and announced that they wouldn’t sell rifles to anyone under the age of 21, a lawsuit was pretty much inevitable. This week, 20-year-old Tyler Watson of Oregon announced that he attempted to purchase a .22 caliber rifle from both Walmart and a subsidiary of Dick’s Sporting Goods named Field & Stream. He was turned away in both cases based on his age and is taking them to court. I’ll explain why this will be a problem for the stores in a moment, but here’s the basic rundown from The Hill.

A 20-year-old Oregon man has filed two lawsuits against companies who recently changed their gun sale policies to prevent anyone under the age of 21 from purchasing a rifle. Tyler Watson alleges in one of the lawsuits that he attempted to purchase a .22 rifle from Field and Stream, which is owned by Dick’s Sporting Goods, on Feb. 24, but was turned away because of his age. Dick’s publicly announced four days later that it would stop selling guns to people under the age of 21, and would also end the sale of assault-style rifles and high-capacity magazines. The company made the announcement in response to the school shooting at a Florida high school last month. In the second lawsuit, Watson accuses Walmart, which announced its new gun-sale policy on the same day as Dick’s, of age discrimination, saying that he tried to purchase a rifle at a Walmart store on March 3.

As soon as these stores announced the policy change there were many of us batting around the legal questions involved. Believe me… it’s complicated, no matter how easy you think the answer may be. First of all, this isn’t a Second Amendment issue because the Bill of Rights is designed to limit the government, not private entities like Walmart. Also, it’s well established that laws about minimum age requirements for various activities have long been accepted by the courts. What’s in play here is the question of whether or not the stores are engaging in age discrimination.

Thanks to a lengthy article on this subject from Doug Mataconis at Outside the Beltway, I was pointed to Eugene Volokh, writing at Reason, who explains some of the ins and outs.

[3.] But about a third of all states ban discrimination based on age in places of public accommodation, and some of those statutes may well ban refusal to sell guns to 18-to-20-year-olds. These laws vary from state to state, so I can’t speak to all of them; but the one I checked — Connecticut (the alphabetically first on the list) — does indeed seem to ban discrimination against 18-to-20-year-olds in retail sales, with no exception for guns. [4.] Likewise, some cities and counties have similar ordinances (even if their states don’t); two I found, for instance, are Madison, Wisconsin and Broward County, Florida. (I looked them up just because I remembered from other research that they have broad antidiscrimination ordinances.) Seattle, on the other hand, bans age discrimination, but apparently only against people 21 and above, again without regard to whether the store sells guns or anything else.

So the question of whether or not the retailer can impose such an age limitation depends on where you are. 19 states have public accommodation laws which prohibit age-based discrimination in areas of public accommodation. The list is here and as you will see, Oregon is one of those states, so Watson clearly has a path forward. But will he win? As I said, it’s complicated. Doug goes on to explain that simply making a rule creating age limits on purchases isn’t enough to automatically put the stores in the wrong. A court hearing this case will have to decide whether or not they feel that the imposition on the consumer is sufficient to amount to discrimination based on the level of scrutiny applied and the “rational basis” test.

As for the state laws, it largely depends on what level of scrutiny the courts in those states would apply to the policy in question. Generally speaking, discrimination based on race and ethnicity is subjected to the highest level of scrutiny while discrimination based on other factors, such as gender, age, and other criteria are subjected to lower levels of scrutiny. Traditionally, age has been held to be covered by the lowest level of scrutiny, often referred to as the “rational basis” test. What this means is that a policy or law that discriminates based on age generally must past what is known as a “rational basis” review, meaning that it will be considered permissible as long as there is some rational basis for that law or policy.

Doug goes on to offer his own opinion (while admitting any court may disagree with him) that there is indeed a rational basis for preventing someone of a certain age from purchasing a rifle. I think he’s totally off base here since that would mean that the courts would have to accept that all 18-20 year olds in general are too irresponsible to own a rifle. The plaintiff will likely immediately argue that we shouldn’t be allowing them to hunt for small game, participate in skeet shooting, enlist in the military, take jobs as security guards, apply to the Police Academy or do anything else requiring a firearm. But, like Doug, I can’t predict what a court in Oregon will say.

So this one will remain up in the air for the time being. But for those saying that Walmart and Dick’s have already won by default, check your facts. This matter is far from settled.