Georgia Supreme Court Allows Under-21 Handgun Carry Ban 

The Georgia Supreme Court last month upheld a state law that prohibits those under the age of 21 from carrying a handgun in public. The court declined to follow recent U.S. Supreme Court rulings interpreting the federal Second Amendment and said instead that the relevant inquiry was into the original public meaning of the Georgia Constitution — and since the language was readopted over time, the court said, “original” meaning likely includes judicial interpretation pre-dating the most recent adoption in 1983.

While the Second Amendment was adopted in 1791 and never amended, many state constitutional protections of that right to keep and bear arms have undergone multiple amendments and re-adoptions over time. And states are still tinkering. Iowa recently added a gun protection to its state constitution, for example, and other states have amended their provisions to require strict scrutiny for challenges to gun laws.

How might the complicated history of state constitutional protections impact courts seeking to uncover original meaning? In the Georgia case, Stephens v. State, the state high court sidestepped this issue by ultimately finding that the plaintiff failed to make any showing that would prompt the court to reconsider its precedent construing the Georgia constitutional provision. But even if it were to do so, the court said, it would likely find that judicial decisions construing earlier versions of the state’s constitutional right-to-arms protection became “baked in” when the language was readopted by subsequent constitutional conventions.

Stephens involved 20-year-old Thomas Stephens, who wished to carry a handgun in public. He sued the state of Georgia, challenging the state law that, with limited exceptions, prohibits those under the age of 21 from doing so. He challenged the state’s age restriction under only the Georgia Constitution, not the federal Second Amendment.

Stephens urged the court to “reconsider and overrule [its] precedent” interpreting the Georgia constitutional provision and to “replace it with legal tests developed in the federal courts for assessing federal constitutional rights.” In other words, Stephens sought to “Bruen-ize” the Georgia state analogue to the Second Amendment and have the state court interpret the Georgia Constitution using an originalist analysis that asks whether the challenged public carry restrictions are consistent with history, tradition, and regulatory practice from a narrow period around when the constitution’s arms-bearing protection was initially drafted and ratified.

The Georgia Supreme Court rejected this path. Rather than apply a test developed by federal courts for the U.S. Constitution, the justices explained that the relevant inquiry was into the original public meaning of the Georgia provision, but added that “demonstrating the original public meaning of constitutional text that first appeared in one of our constitutions in the 1860s (and has since been readopted into each new one) is a difficult task that requires careful attention to not only the language of the clause in question, but also its broader legal and historical context and applicable rules of constitutional construction.”

Georgia’s state protection of the right to keep and bear arms dates to 1865. As with some other states, the Georgia provision expressly notes the legislature’s power to regulate the carrying of arms; that language was added by amendment in 1868. In an 1874 decision, Hill v. State, the Georgia Supreme Court interpreted the provision in a challenge to the state’s concealed-carry ban. Hill found that the language allowing the legislature to regulate the “manner” of arms-bearing encompassed a concealed carry prohibition. According to the Hill court, “the preservation of the public peace, and the protection of the people against violence, are constitutional duties of the legislature, and the guarantee of the right to keep and bear arms is to be understood and construed in connection and in harmony with these constitutional duties.” 

Later Georgia decisions also recognized that the “manner” clause referred to a broad police power to regulate arms-carrying. As the Stephens court noted, “this understanding of our state constitutional right to bear arms has even deeper roots” because the Georgia Supreme Court issued an unusual decision in 1846 in Nunn v. State — before any arms protection was added to the state constitution — interpreting the federal Second Amendment and finding that legislatures retain the power to regulate how arms may be borne. The longstanding judicial view, then, has been that the Georgia Constitution preserves broad regulatory power over the public carry of firearms.

The Stephens court then explained that, even if the early decisions finding an expansive police power to regulate arms-carrying misinterpreted the original intent of the Georgia constitutional provision, “there is a good argument that the construction is now a settled part of the meaning of that language as it exists in our current Constitution of 1983.” In other words, because Georgia drafted and ratified an updated state constitution — overwhelmingly approved by voters in 1983 — that maintained the same right-to-arms language, that re-adoption implicitly endorsed the earlier judicial decisions interpreting the provision. Or, as the Stephens court put it, “it is presumed that the prior construction of that language is adopted along with the readopted language if that prior construction is considered ‘consistent and definitive.’” 

Had the voters wished to repudiate those decisions, presumably, they would have altered the language by limiting or striking the reference to legislative authority to regulate. Thus, the earlier judicial constructions are likely now a definitive part of the constitution itself: “Hill . . .construed the manner clause of what is now Paragraph VIII, which first appeared in the 1868 Constitution and has been readopted in five more Georgia Constitutions since then, including the current one,” the court said.

The Stephens court heavily implied it was precluded from revisiting earlier interpretations of the state right in any way — interpretations that provide the legislature with strong authority to restrict arms-bearing. However, the court ultimately found no need to go down this path because “Stephens ha[d] not offered a compelling argument that the original public meaning of Paragraph VIII is meaningfully different from the construction developed through our Court’s consistent precedent addressing the language of that provision over more than a century.” It was Stephens’s burden, the court said, to put forth evidence suggesting that the established interpretation was incorrect. He failed to do so and his challenge was therefore rejected.

Many states, including right-leaning states such as Florida, Kentucky, Mississippi, Montana, Oklahoma, Tennessee, and Texas, have state constitutional language that explicitly references the legislature’s continuing ability to regulate firearms in certain ways — most often by restricting how guns are carried. Stephens might, then, provide fuel for efforts to amend those provisions to remove the language about permissible restrictions, as Louisiana did in 2012. Oklahoma legislators proposed a similar amendment last year, though it ultimately failed in the state senate. Such changes aren’t very consequential because almost all gun law challenges will invoke the federal Second Amendment as well as the relevant state provision, but they are low-hanging fruit for gun-rights advocates in red states. These amendments are also an interesting example of state legislators voluntarily giving up authority specifically granted to them in the state constitution.

Under the approach in Stephens, state constitutional provisions that include the ability to regulate might also diverge significantly in scope from the federal Second Amendment. After all, broad state court interpretations of the power to regulate could encompass age, sensitive-place, and licensing laws that federal courts may ultimately determine are inconsistent with historical tradition under a narrow historical analysis. And state court construction of constitutional rights can, of course, vary by state. Some states have a tradition of stricter gun regulation than others, and federal courts may determine that the “national” tradition is that of more lenient regulation, or that the stricter states are historical “outliers.”

The Supreme Court has taken pains in its Second Amendment jurisprudence to homogenize state and federal constitutional rights when it comes to arms-keeping and bearing. For example, in District of Columbia v. Heller the majority declared that “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment” were a relevant guide to interpreting the Second Amendment. And Heller described Nunn — the earliest Georgia case cited in Stephens as originally providing a robust right to regulate — as “perfectly captur[ing] the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right.” In other words, the Court framed Nunn as aligned with the individual-rights view of the Second Amendment and as demonstrating that absolute prohibitions on gun keeping or carrying are historically aberrant — despite the fact that the case upheld a concealed-carry ban.

Yet Stephens illustrates substantial tension in the offing. The more federal courts take an expansive view of the Second Amendment as it relates to public carry — including by striking down sensitive-location bans and age restrictions — the less it makes sense to treat state constitutional protections that incorporate a broad power to regulate gun carrying as comprising the same right. That’s because, as in Georgia, some state courts construed these protections to be consistent with robust restrictions on guns in public spaces. Thus, Stephens is a sign of a more fundamental problem with the Supreme Court’s originalist approach. It is built on a foundation of state constitutional law that likely cannot support its most expansive applications.

Andrew Willinger is the executive director of the Duke Center for Firearms Law and a lecturing fellow at Duke Law School.

Suggested Citation: Andrew Willinger, Georgia Supreme Court Allows Under-21 Handgun Carry Ban, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 16, 2025), https://statecourtreport.org/our-work/analysis-opinion/georgia-supreme-court-allows-under-21-handgun-carry-ban