Gun Rights

Will the Supreme Court Once Again Take Up Arms?


The very valuable SCOTUSblog last week wrote up some of the gun cases up for possible consideration by the Supreme Court soon, a few of which will be considered in a conference by the Court later this month. The Court has notoriously avoided the many issues unresolved by 2008's Heller and 2010's McDonald cases so far:

The Justices at their private Conference on February 21 will be examining two cases filed by the National Rifle Association, raising basic questions about the power of Congress and state and local governments to pass gun control laws.  In different ways, each of those petitions seeks to draw the Court's attention to the lingering issue of gun rights in public places.  The cases are NRA v. Bureau of Alcohol, Tobacco and Firearms (13-137) and NRA v. McCraw (13-390)……

Both of the new cases deal with laws — a federal law in 13-137, a Texas law in 13-390 — that restrict access to handguns for young adults eighteen, nineteen, and twenty years old.   In separate rulings, the U.S. Court of Appeals for the Fifth Circuit upheld both laws at issue, and in the process raised serious doubts about whether the Second Amendment even applies to gun rights claims of those who are under the age of twenty-one but still regarded as adults….

The petition in the federal case is a sweeping claim that lower federal courts have been engaging in "massive resistance" to the Court's landmark decisions on Second Amendment rights….

The petition in the state case….is a straightforward plea to extend the Second Amendment beyond the home, because it involves a state law that bars almost all youths ages eighteen through twenty from carrying a handgun in public.  Texas requires a license to carry a gun in public, but those in that age group are not eligible to get such a license.  The petition in that case said that the Supreme Court in 2008 settled that the "right to keep arms" applies within the home, so now, it argued, it is time for the Court to decide whether the "right to bear arms" means the right to carry them when one leaves home…..

The Court may announce as early as February 24 whether it is going to hear any of these cases.

The forthcoming April issue of Reason (subscribe now!) has a feature by me, "Five Gun Rights Cases to Watch," which focuses on, among other cases, NRA v. BATFE. It also discusses another case related to restrictions on the right to obtain carry permits, Drake v. Derejian, that has also filed for certiorari to the Court.

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  1. Or to take arms against a sea of appeals,
    And, by opposing, end them?

  2. If states can have a 21 year old drinking age, I can’t see why they can’t have a 21 year old firearm ownership age. I think it is a terrible law. But I would be very surprised if the court strikes it down. The good news is that they can strike it down without it having much precedent value on other gun cases. Indeed, it could set a good precedent if the court applied a strict scrutiny standard.

    1. Where does that end though? Why not an age of 130? Alcohol isn’t protected by the Second Amendment

      1. It ends at 21. You could make the slippery slope argument about any age. Right or wrong, the courts have allowed the states pretty liberal discretion involving people under 21.

        1. I would say that if your age limit is different from the age of legal adulthood, my point stands.

          1. I agree with you on that point. I think you should be an adult with all rights and responsibilities or a minor. None of this 18 to 21 year old grey area where you have all of the responsibilities and only some of the rights.

            But, the courts disagree. I am just saying what I think the courts will do. If it were me, I would strike it down. But I wouldn’t strike it down because I don’t think states have the authority to restrict gun possession by minors. I would strike it down because I don’t think the states have the authority to call someone over 18 a minor for any purpose.

    2. A lot of states already limit handguns (or sales thereof) to over 21, don’t they?

      Still, I think I agree with some people below that alcohol is not a good parallel. States could ban alcohol altogether if they decide to. Not so with gun ownership.

  3. If states can have a 21 year old drinking age, I can’t see why they can’t have a 21 year old firearm ownership age.

    Constitutionally, regulation of drinking is explicitly delegated to the states. Plus, there is no mention of drinking in the BOR.

    Where you have legislation that affects a Constitutionally guaranteed right, the calculus changes. I think the states will have a much tougher time justifying denying legal adults a Constituonal right. But, with some help from SCOTUS, I’m sure they will manage.

    If states do have the authority to deny an adult the right to own a gun, why stop at 21? Why not 25? 30? Why allow the elderly and infirm to own guns? Hell, set a cut-off age at both ends.

    1. Well, what they’ll probably do is rule gun bans as a tax, which is at 100% before age 21, which means no gun.

    2. Maybe they could make it an age slot…like a fishing reg.

      “You may own a gun between the ages of 35 and 42 between the months of April and September.”

      1. Two guns are permissible between ages 37 1/2 to 39.008512367, provided that such guns weigh less than 60 oz. and are under 14″.

    3. Constitutionally, regulation of drinking is explicitly delegated to the states. Plus, there is no mention of drinking in the BOR.

      Yes and no. The states have the ability to regulate drinking but they are still subject to the rest of the BOR. A state couldn’t ban Indians from buying alcohol for example.

      There is a long history of courts giving deference to states regarding age of consent and restricting rights and privileges of young people. An 18 year old driving age would certainly stand up. I am pretty sure a 21 year old one would too, though we will probably never have a state pass such a thing so we could find out.

      In some states you have to be 21 to serve on jury. We always say 18 is an adult because that is the voting age and the age you can always be subject to full criminal responsibility. But rightly or wrongly there is nothing magic about that age. Indeed, the ability of the states to deny 18 year old’s the right to vote had to be enacted by amendment. States were denying 18 year olds the right to vote in state elections before the 26th Amendment. There is no 26th Amendment for firearms. So why can’t states deny 18 year olds the right to bear arms like they used to deny them the right to vote?

      1. Is that true? 21 to be on a jury? I’ve never heard that before.

        1. Yes. Missouri does for one. I bet it is not the only one.


          Any person under the age of 21


          1. I’m surprised. If someone had asked me, I’d have automatically assumed a universal 18 for jury service.

      2. Interesting point about the right to vote. Yet another example of how the courts enact sub rosa amendments to the Constitution all the time, effectively writing in exceptions that are not otherwise in the document.

        1. I know the 1A is like a reverse Godwin, since the 1A is sacred and honored above all others, but still:

          Could states enact laws prohibiting minors, or even 20 year old adults, from exercising their 1A rights? If not, why can they do so for 2A rights? What in the text of the Constitution sets different standards for scrutiny and enforcement of various parts of the document?

          1. Yes RC. They do it all of the time. IT is called child pornography laws. Dancing naked or posing nude is protected under the 1A. But it is illegal to do that when you are under 18.

            Now, could they make it 21? I don’t know. I could see the courts killing that. But they would do it by saying there isn’t even a rational relationship not by saying states cannot restrict the rights of anyone under 21.

            I agree with you that 21 is too old. All your rights as an adult should accrue to you at one age and that age should be 18, since that is the age you can be drafted and can be held to full criminal liability.

        2. I think it is an example of how we once respected the Constitution but don’t now. Voting was left to the states and the Constitution was silent on the voting age. The courts sensibly left the issue of voting age up to the states. As a result they had to pass the 26th Amendment to force the states to have an 18 year old voting age.

          Now they would just declare “a right to vote at 18” and make the states do it by judicial fiat. We don’t pass Constitutional Amendments anymore. We just let the judicial class decide when they think the document needs amendment and just pretend the new provisions were really always there.

      3. The right to bear arms is absolute and unqualified according the wording in the Constitution. The right to vote is not explicitly addressed, other than the following prohibitions on certain actions:

        “The United States Constitution, in Article VI, clause (paragraph) 3, states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The Constitution, however, leaves the determination of voting qualifications to the individual states … At least four of the fifteen post-Civil War constitutional amendments were ratified specifically to extend voting rights to different groups of citizens. These extensions state that voting rights cannot be denied or abridged based on the following:

        Birth – “All persons born or naturalized” “are citizens” of the U.S. and the U.S. State where they reside (14th Amendment, 1868)
        “Race, color, or previous condition of servitude” – (15th Amendment, 1870)
        “On account of sex” – (19th Amendment, 1920)
        In Washington, D.C., presidential elections (23rd Amendment, 1961)
        (For federal elections) “By reason of failure to pay any poll tax or other tax” – (24th Amendment, 1964)
        (For state elections) Taxes – (Harper v. Virginia Board of Elections, 383 U.S. 663 (1966))
        “Who are eighteen years of age or older, to vote, shall not be denied or abridged by the United States or by any state on account of age” (26th Amendment, 1971).”

        1. The right to trial by your peers is also unqualified. Yet, as I point out above, Missouri at least requires you to be 21 to serve on a jury.

          The courts allow states to restrict the rights of young people. And “young” has been vague enough to go up to 21 in most cases.

        2. So, in regards to weapons, SCOTUS took an absolute right and then unconstitutionally chipped away at it.

          But, in regards to voting, those rights were mostly not explicitly granted, and SCOTUS and constitutional amendments added to the few and scanty existing protections of that right.

    4. Having read Franklin’s thoughts on the matter, I’m sure that if the Founders could have foreseen a time when people would actually advocate for the prohibition of alcohol, they would have put a “right to possess alcohol” into the Bill of Rights. Hell, it might have prevented the Whiskey Rebellion of 1791.

      1. But Prohibition was done by Constitutional Amendment so that wouldn’t have helped.

        It is easy to forget that we once respected the Constitution and amended it when we didn’t like something about it rather than depending on our robed overlords to ignore it and do the right thing.

  4. Texas requires a license to carry a gun in public, but those in that age group are not eligible to get such a license.

    Not quite. Texas requires a license to open carry a HANDGUN in public. You don’t need a license to open carry long guns, including such “scary” guns as black AK-47s. Going to a rally by the state capitol on the 22nd to assert our right to openly carry long guns, with the intent to make people comfortable enough to make handgun open carry something that might be legalized in the future.

    1. I’m a little rusty on my Texas firearms law, but I thought open carry of a handgun was just flat-out prohibited.

      I thought you can only carry a handgun if you have a CCW license. Period. And you violate your CCW license if your handgun is visible.

      1. You are correct. Open carry of handguns is prohibited, but even Wendy Davis is claiming she wants to end that so there is a decent chance of it changing in the next legislature.

      2. Cops can openly carry handguns, as can military on active duty on military bases, so not “flat out prohibited”, but denied to civilians.

        Might be some exceptions for security guards and whatnot, too — will check with the organizer of the open carry event mentioned above.

        1. Googled it on wikipedia, it is actually a lot more convoluted than a flat prohibition, the sort of crap that arises from conference committees:

          “Open carry of a handgun in public is generally illegal in Texas due to PC 46.02; exceptions are detailed in that section and in 46.15, and include when the carrier is on property he/she owns or has lawful control over, while legally hunting, or while participating in some gun-related public event such as a gun show. A permit to carry concealed is thus required to carry a handgun in public.”

      3. Which is the complete opposite of many other states who let you open carry with nothing and require a permit to carry concealed.

        I don’t get it.

        1. The laws are based on emotional reactions of lawmakers to scary looking machined metal, plus pandering to statist voters who use the emotional centers of their brains regarding guns instead of their cerebral cortex.

          If they’d strictly use reason, neither set of laws would exist at all.

  5. Pretty sure drinking is covered under the 9th amendment.

    Hey, stop laughing.

    1. What is this “Ninth Amendment” to which you refer? Never heard of it.

      1. You must have the special SCOTUS edition of the Constitution, then, because apparently they’ve never heard of it either.

      2. It’s some sort of tattoo the Constitution got when it was a kid. It’s like one of those Chinese symbols that one thinks is cool until one learns that it means, “Whore that sleeps exclusively with pandas.”

        1. Just think of the ramifications if they actually acknowledged its existence.

          You’d have rights not granted by the benevolent state.

          Pandamonium! Chaos! Anarchy!

          1. Rights and the very legitimacy of the government itself spring from individuals. That’s treason talk.

    2. It may have been before the 21st. But it gave states total discretion on alcohol .

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