Arkansas state senator questions if age restrictions for gun sales are legal

Sen. Linda Collins-Smith, R-Pocahontas, wants to know if retailers, such as Walmart, can legally prohibit firearms sales to customers under the age of 21. She told Talk Business & Politics she plans to ask the Arkansas Attorney General’s Office to research the issue.

Collins-Smith has made several comments about the issue on social media in recent days, and wants to know if the restrictions could lead to a class action lawsuit in the future.

“Can you discriminate against someone based on them being 18? That’s a question that I have,” she said. “Is it legal? No one has been able to answer that for me.”

Walmart and Dick’s Sporting Goods announced last week they would stop selling firearms and ammunition to anyone under the age of 21. The moves came after the Valentines Day massacre of 17 people at Marjory Stoneman Douglas High School in Parkland, Fla. The Washington Post reports a 20-year-old man in Oregon, Tyler Watson, has filed a lawsuit in his home state after both businesses refused to sell him a rifle during the last several days.

Third-year law student Jody Shackelford, who lives in Collins-Smith’s district, answered the question for her on one of her social media posts. Shackelford told Talk Business & Politics he’s spent several days researching the issue and thinks it’s legal to refuse to sell based on age. He personally knows Collins-Smith and said his responses to her social media posts were not an attack on her.

“Age discrimination only exists under the Age Discrimination in Employment Act of 1967, 29 USC 621. The ADEA prohibits employment discrimination against persons 40 years of age or older. Here, your 18-year-old gun buyer is not an employee and not 40. Therefore, the buyer is not a protected class,” Shackelford said. “The Civil Rights Act of 1964 prohibits a business from refusing service or discriminating based on race, color, religion, sex or national origin. Age is not listed. Therefore “young people” are not a protected class. So, there is no discrimination.”

Collins-Smith responded to Shackelford on one social media post. She asked if he’d ever come across a case where it was ruled an 18-year-old was discriminated against when goods were not sold to that person. Shackelford, who takes the bar exam in July was unable to find a case where courts held an 18-year-old was discriminated against based on their age, he admitted. Shackelford admitted there might be a case out there, but he’s found no evidence.

“I can’t find a case where a giraffe was discriminated against, either,” he said jokingly. “Neither are protected classes relative to discrimination,” he said.

University of Arkansas of Little Rock William H. Bowen Law School Professor John DiPippa agrees with Shackelford’s analysis. In an email to Talk Business & Politics, DiPippa said he is unaware of any age discrimination case like this ever being adjudicated.

“The Constitution does not apply to private conduct (with one exception not relevant here). Thus, it would be age discrimination only if there is some statute that would be violated,” he said.

Collins-Smith said she has been busy this week with legislative issues, and hasn’t had time to study the question. It might violate state militia laws because militia members can be under the age of 21, but they couldn’t participate if they couldn’t buy firearms, she said.

Her posts were not meant to be an attack on Walmart of any other retailer, she said. The ultimate goal is to discover if this is legal.

“I love Walmart. It’s the biggest retailer in the world, and it’s great for the state of Arkansas. I just wanted this question answered,” she said.

Walmart National Media Relations Senior Director Randy Hargrove told Talk Business & Politics the company had no comment about age discrimination questions as it pertains to firearms. But Hargrove said Walmart will defend itself in the Oregon complaint. The company had not received the Oregon complaint as of Wednesday night, he added.

“In light of recent events, we reviewed our policy on firearm sales. As a result, we raised the age restriction for the purchase of firearms and ammunition to 21 years of age. We stand behind our decision and plan to defend it. Once we are served with the complaint, we will respond as appropriate with the court,” he said.