Constitutional Law, Politics, Society

Oregon Man Sues Dick’s Sporting Goods For Age Discrimination In Denial of Gun Purchase

336px-Seal_of_Oregon.svgThere is an interesting lawsuit in Oregon where Tyler Watson is suing Dick’s Sporting Goods for age discrimination after the store (and Walmart) declared that they would no longer sell guns to people below 21 years old.  Since he is entitled to buy guns under state law, he is claiming that the store policy discriminates against him on the basis of age in refusing to sell him a .22 caliber Ruger rifle.

 

Oregon expresses protects against discrimination based on age:

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, as defined in ORS 475B.015(Definitions for ORS 475B.010 to 475B.395), 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. [Formerly 30.670; 2003 c.521 §1; 2005 c.131 §1; 2007 c.100 §5; 2015 c.614 §27]

The law raises an interesting question if there is a rational basis, let alone the higher level of scrutiny usually afforded constitutional rights, for refusing a gun purchase to a 20 year old individual.

Here is the lawsuit: Watson’s Complaint.  

55 thoughts on “Oregon Man Sues Dick’s Sporting Goods For Age Discrimination In Denial of Gun Purchase”

  1. My needle on the second amendment would be in the right to bear arms part of the spectrum and that would include this instance, but I have to ask, is there an age limit at all?

    If not, and as long as it’s a constitutional right, I’d like my two year old (if I had one) to get his or her little paws on a thermo-nuclear device, perhaps several. After all, it’s his/her (some would say, God given) right, no? Then, watching the little bundle of existential energy pull and push things, particularly bright little red things like buttons, I could fully savor why some folks just can’t be bothered with events more than 30 seconds away like global warming.

    The difference between genius and stupidity is that there is a limit on genius. -Albert Einstein

    1. Opps, I should have said, “Attributed by some to Albert Einstein”

    2. Brooklin Bridge – since the militia is usually considered all males between 18 and 45, to prevent males under 21 from getting rifles would be to deny them of their Constitutional Right to bear arms in a well-regulated militia.

      1. Hi Paul – always enjoy your comments!

        In this case I don’t disagree with your main point about age (assuming there is some limit, but I do have a bone to pick about the use of the militia to make your point. If the militia is the criteria for the Constitutional Right to bear arms at a given age, then it is also the criteria for the right to bear arms at all which would suggest – at least according to your comment – that only males between the ages of 18 and 45 and who belong to a well-regulated militia have the right to bear arms.

        I notice that defenders of the right to bear arms who bring the Constitution into the argument almost always quote the whole amendment but then gloss over the militia part entirely when making their argument, or they twist the implications to suit their belief or they are just plain frank and say it’s a God Given right (and – I suppose – God is really the author of the Constitution or perhaps that’s why Eve got gypped out of a rib – to make an AK-47 for Adam)

        BTW, I’m not referring to you. I think you make a valid point regarding a possible historical explanation for age as it affects the law in Oregon.

        1. Note, I did not make sufficiently clear that the age part of of my comment above refers only to Oregon and it’s law as suggested in your comment since the Second Amendment does not refer at all to age or gender even if as you point out, the militia was generally composed of men between 18 and 45. But the well-regulated militia is explicitly part of the Second Amendment and I think strongly suggests the intention of restraints on who gets to bear arms (the people) and why. That may shrink and expand depending on the composition of the Supreme Court and the prevalent dogma and ideology regarding the collective as opposed to individual weal, but it remains nonetheless in the category of restraint.

        2. Brooklin Bridge – all males 18-45 are automatically part of the well-regulated militia. As such, you are expected to have a rifle (musket) and ammo.

  2. It appears that Oregon’s Constitution provides very strict limitations of and enumeration of cases where age discrimination is permitted. By not including any language that allows a business to make their own case-by-case decisions in other areas, I can only conclude that the stores are violating the rights of Mr. Watson in refusing to sell to him. There is no other way that I could interpret this case.

  3. The situation is this. Dick’s & Wal-Mart cannot handle a 20 year old purchasing a .22 rifle but in the military that 20 year old can handle rockets, machine guns, torpedoes, and possibly nukes.

  5. Love watching everyone in this comment section argue that a private seller should be compelled into a transaction by the government.

    I take it the majority of commenters here wouldn’t object if Dick’s claimed that selling guns to those under 21 violated their religious principles.

    1. Nope – if he was going to use it at a “shotgun wedding” and Dick’s refused to sell it for religious reasons, I might back them. 😉

    2. Your argument fails because the 21 year old wasn’t asking for Dick’s to make him a special gun. Bakers and shouldn’t be forced to make a special cake not already offered to the public.

      1. In Numbers 1:3, the LORD said to Moses that men 20 and over should be counted as able to go to war.

        If the owner’s of Dick’s rely on this to not sell guns to 18-19 year old purchasers, should the state force them to violate this religious belief and sell to them anyway?

        1. As a business owner, I get what you are saying about owners have discretion on how they run their business.

          An 18 year old has a Constitutional right to bear arms, just like he has any other Constitutional rights as an adult. The argument can be made that although he has the right to own a gun, can a business owner be forced to sell him one? Can the same gun store declare that it will no longer sell guns to anyone with grey hair, for fear they will sell one to someone with dementia? Can a gun store only sell to women and refuse to sell to men?

          That brings us to the argument of when can a business owner discriminate. Can a business owner be forced to participate in a religious ceremony, for example?

          In general, if you sell ready made products to the public, then you sell to the public without discrimination. If you create anything, or if you have to participate yourself, then I feel that you should be allowed to say no if you feel uncomfortable. However, this can raise all sorts of discrimination concerns. If you are a photographer, can you be forced to photograph a Prince Albert piercing, for example? Or a home birth, no matter how squeamish the photographer is? Could a photographer be forced to photograph a binding ceremony between a man and his 26th concubine?

          If a bakery has cupcakes and cakes in the display case, then they sell them to everyone. If a customer comes in and wants them to pipe on a message they find offensive or wrong, they shouldn’t be forced to do so.

          It is a fine line to tread, however, and the nation needs to determine where that line is. I am very interested to see how this plays out. I do not, for example, feel that any effort to bar gun ownership of 18 year olds will hold up in court, because this takes away a Constitutional right without due process. However, if they declare that businesses have the right to say no to selling firearms to people based on age, then there will be far reaching consequences on that right to discriminate. So far, there has been a lot of legal pressure against business owners for saying no to gay weddings. If they can say no to selling a firearm to someone with a Constitutional right to buy one, then they can say not to gay weddings, too.

          I am very curious to see how this is decided, and the legal ramifications.

  6. I understand why some people want to raise the age to buy weapons to a more mature age, but do not see how anyone could arbitrarily remove someone’s Constitutional rights for a few years. Why not apply any Constitutional right to people over 40, who have more experience?

    It has long been troubling how we have a tessellated approach to adulthood. You can get married at 18 and join the military, but you cannot buy alcohol until you are 21, or rent a car until you are 25. Does choosing a life partner or to risk your life for your country require less maturity than buying alcohol? How can you reconcile that you can join the military and shoot live fire, getting shot at in return, but you could not buy a firearm yourself?

    As a nation, we need to pick one age of majority, whatever that age may be.

      2. Personally, I think that the least controversial immediate approach should be securing all schools. This is concerning from a financial standpoint. We vote for more and more funding for education, and I have no idea where it goes. Into some volcano in Iceland, I suspect.

        We have gone through this with banks, courthouses, celebrities, and the airport. The risk of danger is great enough that each is now guarded. So why don’t we guard our kids? Why are kids not secured with the same level of care as a necklace, or some reality TV socialite? There was an armed guard at the county recorders office.

        Securing our schools means remodeling, the same that earthquake building codes required retrofitting for decades in CA. It’s difficult to pay for, but the need is reality. I’m sure we can find some money we are wasting elsewhere. High Speed Rail, I’m talking to you. We need secure fencing, controlled entry, cameras, and armed security, preferably police officers or honorably discharged military.

        You cannot bet any child’s safety on the hope that someone with a grudge won’t show up one day. If not a firearm, then there are bombs, knives, pressure cookers, and even cars. Children are a target, so they should be cared for.

        Arguing about magazine size or 18 year old gun owners won’t stop anyone from strolling into a school tomorrow to engage in another cowardly act. I guess these shooters are only brave enough to gun down unarmed kids, because I sure don’t see them facing anyone with a decent chance of putting up a fight. Cowards, the lot of them.

        Securing our schools will have an immediate effect on our kids’ safety. By that I mean that we have to have in place an on-site responder willing to actually engage and react.

  7. I left Oregon and tried Washington even a touch of California and Florida Of the four Oregon is the one where men were men and sheep are still scared at least in the Willamette Valley. .

  8. Pure virtue signaling. Eleven of the last twelve mass-shooters were over 21. Number twelve used his mother’s gun.

  9. The Heller case interpreted the 2nd Amendment as conferring a right of self-defense equal to owning a pistol for self-defense while in your home. It doesn’t prohibit restrictions on rifles, or self-defense outside the home, except where part of “a well-regulated militia”. The entire area of weapons-use supervision, which is a common-sense element of a well-regulated militia, to my knowledge, has never been successfully challenged beyond the limited doctrine of Heller.

  10. Prof. Turley, did I miss your informative analysis of the DOJ’s lawsuit against CA? Surely you’ve written about it this week.

  11. There is no rational distinction in a firearms purchase between a 20-year-old and a 21-year-old. Plaintiff wins this one.

    1. Heller II I think it was the second one stated for the first time the right to self defense and defense of family etc. but even so earlier court rulings it is not a police responsbility but a citizen responsibility None however specifically tied it to Second Amendment In fact it was right here in this blog I found that out. Before that the court never wanted to touch that amendment or as we learned in police academy, thepolice responsibility is investigate after the fact. and prevent if possible. That last sentence throws this episode back on the local and State and federal departments and whoever banned well trained treachers and others or the schools themselves from being responsible for their charges during the school day.

      So start with the School board

      But in Oregon it was a point of concern on the 18 year old vote vis a vis the draft laws and most easily solved by not having a draft. But that didn’t happen either. .

    2. The only place I’ve ever seen a rational distinction was in one of Heinleins books. “There is no such thing as a juvenile delinquent for being delinquent means failing in duty and duty is an adult trait. But for every juvenile in trouble there is an adult delinquent.” His point was it isn’t a matter of age but of accepting and facing up to responsibility one of which engendered this next Heinlein passage.

      Why do we teach history and moral philosophy? To enable the transitition from child hood to adult hood one of which is voluntarily (not being forced as it is in the USA) to step forward for military duty. (paraphrased) For if it is worth doing enough will step forward and if it is not worth doing not enough will step forward.”

      Using age as a factor or determiner is more childish than any other I can think of.

  12. I do not think that it is age discrimination. What if they refused to sell rubbers to children? Or what if they refused to sell naked photo magazines to children? No “laws” allowing their refusal in the state but maybe they want to “protect”. Dicks Sporting Goods should change its name to something less profane. “Penis” perhaps.

    1. Of course it’s age discrimination – it’s denying goods or services normally offered to the general public, based on age. The question is whether it’s unlawful age discrimination, and that certainly seems to be the case. Regarding your hypothetical examples, note that the statute only applies to discrimination against those who are “of age” i.e. not minors.

      1. The right to arm bears should not be infringed. We need a militia. Bear not what others think.

      2. Moreover inalienable rights are those that can be changed while unalienable rights as used in the founding documents are rights that cannot be changed.

        That aside the issue of ‘can be drafted and sent to war pops up first, followed by has the right to vote, has the right to buy alcoholic beverages, tobacco products and in Oregon for one buy and use certain other types of drugs and this then leads us to the still in effect requirement to sign up for selective service at Age 18 which is sexist to the say least. Since women are not required to live up to those responsibilities are they exempt from or bound by these same purchasing laws.?

        If none of that was examined nor explained in the flight, the stampede to mobocratic rule which led Dicks to the prudent course of action they chose and may well have been further dictated by their contract with WalMart and their contract with their insurance carrier.

        That’s what happens when people stampede in full mobocratic formation forgetting that we are not a democracy who use that sort of solution but a Republic (of, by, and for the citizens) who use due deliberations.

        Oregon is the home of Springfield’s Thurston High School where the same thing happened May 21st 1998

        They have had near enough 19 years to make a reasoned decision and any changes. So is this a law suit against a money bags corporation or what? Why not sue the citizens of the State of Oregon? Why not make an exemption for active duty members of the military? Why not draft women 18 and older?

        blame it on Dicks? Someone saw some easy money to be made…sixty fourty and by the way is thei plaintiff registered with selective service? To Vote, all those trappings of responsibile adulthood. for sure the line between childhood and adulthood has been drawen BY the Federal Government for men with women exempted from the responsibilities.

    3. Under the law in Oregon, it’s age discrimination. Plain and simple. NJ and I think New York as well.

  13. About 1/3 of the states impose special restrictions on “senior” drivers, even though multiple studies have shown that young drivers have more traffic accidents than elderly ones. Many states that have NOT imposed senior-driver restrictions determined that the benefits do not outweigh the cost to the state, nor the burden on older drivers. Has anyone challenged these laws? If the gun plaintiff prevails, there is a good chance that someone will….

    1. TIN – much as I would like, having a driver’s license is not a right enumerated in the Constitution. 😉 The day will come when someone will take my car keys and driver’s license away.

      1. Correct Paul, you beat me to it. People always love to bring up driving as a counter argument for guns or health insurance ignoring that there is no right to drive.

      2. It is not the violation of denying a driver’s license, it would be the violation of equal protection under the law.

        1. Gary T – are you talking about driver’s licenses or guns? I am a little confused?

      3. Happened to my own father. He was livid and drove anyway. He was more livid after a night in jail. the Judge was not impressed.

        1. Michael Aarethun – sorry about your father, he did not deserve a night in jail. Losing your driver’s license is losing part of your manhood. I know it is going to happen to me and I am trying to pre-prepare for the event. On the last trip I went on, I was not allowed to drive, although I did most of the navigating. 😉

        1. Stupidity Rules – hit some of your sore points, hunh? We could always discuss your pain.

  14. Ultimately the plaintiff will prevail. There is no legal difference between Mr. Watson wanting to purchase a long gun or a widget. The retailers chose an arbitrary age to accommodate customers, contrary to the Oregon Revised Statutes. They could have just as illegally refused to sell wedding gowns to customers in their 80s claiming that elderly individuals had no reason to get married. The violation is the same.

  16. How would a victory for this guy affect housing or living communities for the 55 and older age groups?

  18. He will win but not in the Ninth Circus, however, if he gets to the SC he should be a shoo-in.

    1. He won’t get to the SC based on their recent track record, even if the 9th Circuit’s opinion were to consist of nothing more than the word “Derp” written in crayon.

      1. DaveL – he might. Florida just passed a law age restricting weapons which is testable.

  19. He should win. But with my experience in Oregon courts for 40 years and given the political climate here, he may lose.

    1. You have a good point. I said before that under Oregon’s laws, he would win. But we have many examples of the western states of the People’s Republic ignoring the rule of law these days.

    2. History and Moral Philosophy or even civics is not taught in Oregon since the 1970s.

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