Many would prefer that guns not be allowed in the hands of anyone, but certainly not in the hands of young people between the ages of 18 and 20, a long-standing restriction on the right to purchase handguns. Judge Robert Payne in the Eastern District of Virginia, however, held that such a restriction was unconstitutional.
The rationale, under other circumstances, might well be one that received full-throated support from progressives, holding that 18-to-20-year-olds are “people” as referred to in the Second Amendment. After all, are they not “people” when it comes to voting? Are they not “people” when it comes to free speech, search and seizure and the right to remain silent? Surely, we want them to be “people” under the law when it comes to the plethora of rights protected by the Constitution otherwise. If so, then aren’t they “people” for the Second Amendment as well?
The government argued that 18-to-20-year-old Americans are not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment. When that amendment was ratified in 1791, the Justice Department noted, the age of majority was 21.
Given the Bruen reference to what the state of the law was at the time of enactment, wouldn’t the age of majority in 1791 carry great weight?
The Supreme Court has said “the people” protected by the Second Amendment, like “the people” protected by the First and Fourth Amendments, “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The government therefore was arguing that 18-to-20-year-olds, who today can vote and are treated as adults in most other respects, are not part of “the political community.”
Since then, “membership in the political community has grown to include numerous groups—women, minorities, and minors—that were denied inclusion at the time of the Founding,” Payne writes. “If the Court were to accept the Government’s position of limiting the definition of ‘the people’ to those understood to fall within it at the time of the Founding, the Second Amendment would exclude protections for vast swaths of the American population who [undoubtedly] are members of the political community today.”
But what of the long-standing restrictions against selling guns to people under the age of 21?
“The historical sources show that, at the time surrounding ratification of the Second Amendment, 16 or 18 was the age of majority for militia service throughout the nation,” Payne writes. “In the decade following the ratification of the Second Amendment,” he adds, “Congress and every state then in the Union passed a militia law requiring almost all able-bodied white men between the ages of 18 and 45 to serve in the militia.”
Notwithstanding the fact that the age of majority was 21, the expectation was that an able-bodied person “16 or 18” would be ready to serve in the militia if needed. In other words, in 1791, gun possession was neither connected to the age of majority nor subject to age restrictions, and was, in fact, expected for the purpose of being ready to fight.
“The fact that an individual could, or was required to, serve in the militia indicates that society believed that he lawfully could, and should, keep and bear arms,” Payne notes. “Furthermore, because militiamen generally were responsible for providing their own firearms, it is logical to conclude that 18-to-20-year-olds were not prohibited from purchasing them.”
The Eleventh Circuit, in contrast, held that age restrictions that were coming into being at the time of the Fourteenth Amendment’s passage, when the Second Amendment was applied to the states, provided the proper understanding as to age restrictions to be permitted.
But what of the fact that guns in the hands of 18-to-20-year-olds presents a substantial peril for society given their immaturity, developing intellect and cognition and poor decision-making?
But as Payne notes, “the ‘general societal problem’ of teenage impetuousness and rashness far [preceded] the Founding.” Since that is hardly a new phenomenon, he says, “the lack of analogous evidence of Founding-era regulations demonstrates that the statutes and regulations at issue are inconsistent with the Second Amendment.”
The arguments involved are reminiscent of the issues raised back in the 1960s with regard to voting and drinking alcohol. If 18-year-olds were old enough to be handed a rifle and shipped off to their death in Vietnam, they were old enough to participate in our political community and suck down some suds before they hit the jungle.
It’s a sound argument, even if the current reality is that expanding the ability to purchase guns to 18-year-olds opens a new door to the evils that so many consider one of our gravest national problems. Is there an argument to be made that 18-to-20-year-olds are fully people when it comes to most aspects of constitutional protections but not the Second Amendment? Ironically, as some are calling for the vote to be given to people even younger than 18, can the age to be considered “people” in the Second Amendment be distinguished from the other rights conferred on or protected for children?
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If I am not mistaken under federal law only handgun purchases are restricted to 21 and over.
Long guns are 18 and over.
That’s correct, and I’ve clarified in the post.
Except, for reasons I don’t pretend to understand, shotguns with pistol grips. You have to be 21 to buy a pistol gripped shotgun.
Here is another puzzler: AR-15 Rifle – the age is generally 18 (though some states have raised it), AR-15 pistol – Age 21.
The age arena is an interesting site for the next big semantic power struggle. We’re neck deep in state-sanctioned efforts to dismantle the objective classification of sex categories (for humans at least), pushing us toward a sex-blind society (pun not intended but irony noted). At the same time the socially-constructed classification of race is being ratified and escalated to pursue/maintain a racialized society (irony without pun noted).
At the same time we are regressing away from the ideal of a society of individuals to a society of groups, with rights conferred not on people but on identities. Except now they can be fluid and intersectional in pursuit of increased opportunities for subjugation. And technology has reorganized how people develop and how they interact both with each other and with the flow of history.
Age is reality-grounded like sex but it actually is a spectrum, and the distinctions between the numbers are the devil’s playground. And numbers would seem to be even more easily pliable in their meanings than the words we naively thought were attached to fixed concepts. It’s not just where the thresholds should be. No doubt some would love to see a reversal to a Logan’s Run scenario, at least as far as rights are concerned. Not to mention the exploitation opportunities available to market-based late stage capitalactivism.
We can expect to see some very weird things coming in the near future, if what the trolltopians are trying to pull with other forms of identity and the language surrounding it is any indication.
Sorry what was the question.
People have the right to defend themselves and the right to the means w/ which to effectively do so.
Is their a compelling gov’t need served by denying those 18-21 years old their rights?
Enquiring minds want to know.
The court’s ruling is rendered in the shadow of Hirschfield v. ATF, which was 4th Circuit precedent for several months and then was held mooted when the plaintiff turned 21 before the result was final.
Capable of repetition, yet evading review?
When my town suggested we prohibit tobacco sales to 18-20-year-olds, I thought the idea was sound (they make stupid decisions, after all), but on principle I was against the idea that an 18 year old is old enough to be prosecuted as an adult and go to adult jail for theft of the same cigarettes he was too young to purchase–because he’s not yet of sufficient maturity to make sound decisions.
The EDVA decision may have a sound basis, but we discriminate based on age all the time.
Maybe there’s a sound reason why “No Person shall be a Representative who shall not have attained to the Age of twenty five Years” or “No Person shall be a Senator who shall not have attained to the Age of thirty Years…” (Art. I, §2) or why no person may become President “who shall not have attained to the Age of thirty five Years…” (Art. II, §1).
In Federalist 62, they go with the low-hanging fruit — age and wisdom go hand in hand and you don’t want the kids messing things up with their rash decision-making.
Sure, those are *in* the Constitution, but Scalia helpfully told us that the historical reality was that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors”.
As I get a bit older, this makes me wonder how hard one needs to look for support of the notion that during the founding era, people understood that younger adults don’t think the same way as adults, and perhaps different sets of rules were ok when taking that into account.
This is a question I don’t know how SCOTUS can avoid. If 18-year-olds aren’t mature enough to buy a handgun or drink, how can they be considered mature enough to vote? If they’re mature enough to vote, why ban then from drinking and being able to buy a handgun?
I came of age when 18 years olds could be drafted (I turned 18 the year after the draft ended, but still had to register), vote, and drink. If I were on SCOTUS, I’d err on the side of 18-year-olds having full rights: be able to drink, vote, and buy handguns. To do otherwise is hypocritical. Otherwise, raise the age of adulthood to 21 for everything, including voting.
I believe there should be consistency, if you can be drafted into the army or sentenced to life in prison at 18 you should be able to buy a pistol at 18. The unduly passionate claim a 16 year old is mature enough to vote but only a 25 year old is mature enough to own a semi-auto rifle. If the age of majority is 18 then everything should be 18, minimum age for military service (up from 17) , voting age, marriage age, gun buying and carrying age, drinking age, gender change surgery age etc. I suspect the last would cause howls from the Left but tough.
I was beginning to worry.
I feel better now, too.
“It’s a sound argument, even if the current reality is that /expanding/ *restoring* the ability to purchase guns to 18-year-olds…”
FIFY. Prior to 1968, a minor could order a firearm through the mail. Up to and including surplus anti tank guns. Prior to 1934 a minor could order a machine gun through the mail.
Facts matter.
You can make your point without being an asshole about it. Nobody likes an asshole. And when you write “though the mail,” that’s because state laws prohibited it before there were federal laws about everything.
Mr. Greenfield, your blog has been a daily stop for me for many years but today is my first time commenting, so I hope you will grant this newbie some leeway this once:
When Prohibition (a properly enacted amendment) was repealed, it was not seen as “expanding” a (previously diminished) right. It “restored” a right to its former status quo. Now that courts are finally starting to look at the series of laws that have incrementally infringed on an enumerated right that our Supreme Law says “shall not be infringed,” by what logic do we portray a tardy attempt at fidelity to that supreme law’s stated intent (as contemporaneously practiced) as an “expansion” of that (incrementally diminished) protected right? Such a portrayal is inaccurate and seems disingenuous.
Things ought not necessarily remain as they are now. Things ought not necessarily have remained as they once were. But serious observers, especially a room full of lawyers. ought to be able to distinguish the two and construe them accurately within the context and boundaries of the law. Shouldn’t they?
And I mean that in the nicest possible way.
Fair enough.
This particular case was about purchasing handguns from federally licensed dealers. So it has national implication, which has yet to be sorted out. Actual ownership of a handgun and private sales are covered by state laws for the most part. And those vary a good deal.
In Alabama for example, it is not illegal for a 18-20 year old to own a handgun. And minors can legally possess a handgun provided certain criteria are met.