Second Amendment Rights of Young People

Nineteenth Century Law and Twenty-first Century Cases

|The Volokh Conspiracy |

Do persons under 21 have any Second Amendment rights? Around the nation, gun control activists have been pushing for laws to prohibit firearms for persons under 21. In a symposium issue of the Southern Illinois University Law Journal, Joseph Greenlee and I examine the issue. History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People concentrates on two topics: First, the five leading post-Heller federal circuit cases that have addressed age-based restrictions or bans on the exercise of Second Amendment rights. Second, statutes and case law from the nineteenth and early twentieth century on the issue. We pay particular attention to how the modern cases employed legal history.

A separate and much longer article, The Second Amendment Rights of Young Adults, will appear in the next issue of the SIU Law Journal (but you can read a near-final draft via the link). That article examines the colonial and Founding periods, twentieth century laws, and modern policy questions. I will write more about that article when it is published.

Rene E. (1st Cir.)

The first post-Heller case to examine an age limit for the Second Amendment was the First Circuit's United States v. Rene E., which upheld 18 U.S.C. 922(x)(2). The statute prohibits handgun possession by persons under 18, with certain exceptions, including self-defense in the home, hunting, farm and ranch work, and target shooting (if the person at the target range carries a permission note from her parents).

The Rene E. court cited a litany of historical cases, but on closer examination, not all of these cites really supported the federal ban. For example, McMillen v. Steele, 119 A. 721 (Pa. 1923) upheld an 1881 statute that banned handgun sales to persons under 16, but did not ban possession. State v. Quail, 92 A. 859 (Del. Super. Ct. 1914) involved a statute against concealed carry; a separate section of the statute banned deadly weapons sales to minors, but that part of the statute was not at issue in the case. Several other cases in the Rene E. list were decided on procedural or other grounds, and did not address constitutional questions. Tennessee's State v. Calicutt, 69 Tenn. 714 (1878), was on-point, but was expressly based on the Tennessee Court's 1840 Aymette v. State. In Heller, the U.S. Supreme Court expressly stated that Aymette's reading of the Second Amendment was "odd" and incorrect; so Aymette and its progeny are not much use as modern precedent.

The best historical precedent cited by the First Circuit was Georgia's Glenn v. State, 72 S.E. 927 (Ga. Ct. App. 1911). It upheld a 1910 statute against furnishing handguns to minors, except for self-defense. According to Glenn, the state may "prohibit, on the part of minors, the exercise of any right, constitutional or otherwise, although in the case of adults it might only have the right to regulate and restrict such rights." The assertion that minors have no constitutional rights is plainly wrong under modern precedent, and it was plainly wrong under the law of the time. (Otherwise, minors could be prosecuted for heresy, executed without due process, etc.)

The most detailed treatment of minors was Parman v. Lemmon, 244 P. 227 (Kan. 1925). It involved the interpretation of a statute that banned furnishing "any pistol, revolver," toy cap pistol, "dirk, bowie knife, brass knuckles, sling shot, or other dangerous weapons" to minors. Did "other dangerous weapons" include long guns? The Kansas Court ruled 3-2 that it did, since long guns can be dangerous. The Court then granted rehearing, reversed itself, and made the dissents into the controlling opinion. 244 P. 232 (Kan. 1926).The newly-controlling (former) dissent found it extremely implausible that the 1881 legislature would have sub silento banned common activities such as teenagers using shotguns on the family farm. In Kansas and American history, "the rifle over the fireplace and the shotgun behind the door were imperatively necessary utensils of every rural American household. And it was just as imperative that the members of such household, old and young, should know how to handle them." A ban on long guns for minors "offends against the genius of Kansas and her hitherto free institutions, contemns her heroic history, and disdains the epics of her pioneers."

The Parman court did seem accepting of handgun bans for minors, making it nearly the best historical precedent for the federal handgun statute at issue in Rene E.

NRA v. BATFE (5th Cir.)

Another part of the federal Gun Control Act forbids persons under 21 from buying handguns in retail stores, but does not prohibit them from acquiring handguns from other sources. The Fifth Circuit addressed the ban in NRA v. BATFE, 700 F.3d 185 (5th Cir. 2012). The court correctly pointed out that gun controls existed at the time of the Founding, and that the Founders were concerned about keeping arms away from people who were not "virtuous" citizens. Without a scintilla of evidence, the Fifth Circuit speculated that the Founders considered persons under 21 to be unvirtuous, and so such persons have no Second Amendment rights. Since the standard starting age for militia service in the colonial and Founding periods was 16 or 18, the Fifth Circuit's notion that the Founders distrusted young people with arms is implausible and absurd.

The stronger part of the Fifth Circuit opinion was a list of 19th century statutes involving arms restrictions on minors. These start with an 1856 Alabama law against giving handguns or bowie knives to male minors, and Tennessee law of the same year against giving such arms to minors or slaves (with an exception for hunting). The rest of the laws date from 1873 or later.

As of 1899, there were forty-six states in the Union. Nineteen of them had some sort of law involving handguns and minors and the other twenty-seven had no such laws. No state criminalized handgun possession by minors. Ten states generally prohibited handgun transfers to minors; four of those ten had exceptions for self-defense, hunting, or home possession, and Alabama's law was only for males. Of these ten statutes, five expressly prohibited loans, while the other five were phrased in terms that could be construed to refer only to permanent dispositions.

Three other states did not restrict transfers in general, but did restrict sales (Delaware, Mississippi) or dealer sales (Wisconsin). Five states required parental consent for handgun transfers to minors (Illinois, Iowa, Kentucky, Missouri, Texas). Nevada simply prohibited concealed carry.

In short, the historical statues strongly indicate that long gun bans for persons under 21 are unconstitutional. There is minority support for handgun restrictions. Support for extra regulation on handgun acquisition is much stronger than support for prohibition.

In an abundance of caution, the Fifth Circuit also upheld the statute under intermediate scrutiny. The court accurately pointed out that 18-to-20-year-olds have higher violent crime rates than do older people. The rationale can be used to justify almost any age ban: Persons 21-to-25 commit crimes at a higher rate than do people over 25. Persons 60-to-65 commit crimes at a higher rate than do persons over 65. By the Fifth Circuit's rationale, the minimum age for gun ownership could be set at 100, since persons under 100 commit crimes at a much higher rate than persons over 100.

A similar prohibitory rationale could be applied to many groups that perpetrate crimes disproportionately. For instance, African Americans commit murders at disproportionately high rates, but that cannot justify bans on all African Americans. Regardless of age or race, males commit far more murders and other gun crimes than females. The fact cannot justify an arms ban for all males.

NRA v. McCraw (5th Cir.)

Another case in the Fifth Circuit, National Rifle Association v. McCraw, challenged the Texas concealed handgun carry licensing statute, which does not allow young adults aged 18-20 to obtain permits. (An statutory exception was later added for young adults with past or present service in the armed forces.) The McCraw court mostly relied on the NRA v. BATFE precedent, and improperly so. The BATFE case involved a restriction on one means of acquiring handguns, and was tested under intermediate scrutiny. The McCraw case, in contrast, involved a near-total prohibition on the exercise of the right to bear arms; accordingly the statute should have been subject to more rigorous review.

The McCraw court applied a special, feeble version of intermediate scrutiny, which has become a specialty for the Fifth Circuit, and some other courts, in Second Amendment cases. In normal intermediate scrutiny, the government carries the burden of proving that there is no "substantially less burdensome alternative." Under the more rigorous rules of strict scrutiny, the government must prove that there is no "less restrictive alternative." In McCraw, the plaintiffs argued that young adults could be issued permits under a stricter system–for example, additional training or background checks could be required. The Fifth Circuit refused to consider the argument, and incorrectly stated that intermediate scrutiny requires no consideration of alternative regulations.

Horsley v. Trame (7th Cir.)

In Illinois, gun owners must have a Firearm Owner's Identification Card (FOID). Persons 18-20 who apply for a FOID card must have a signed authorization for a parent or guardian. If the signature is not obtainable, there is a safety valve provision for the applicant to seek relief from a state official, and an option for judicial review of an administrative denial. In abortion jurisprudence, parental permission laws have been upheld if they have a safety valve for alternative means of obtaining permission. By analogy, the Illinois system for gun licenses was upheld in Horsley v. Trame, 808 F.3d 1126 (7th Cir. 2015).

Ezell II (7th Cir.)

After the City of Chicago's ban on gun ranges open to the public was ruled unconstitutional, the Chicago City Council enacted a new ordinance. That ordinance prohibited any person under 18 from entering a target range. The ban was held unconstitutional in Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017) (Ezell II). The City pointed to some of the historical restrictions on minors discussed above. But as the Seventh Circuit observed, "There's zero historical evidence that firearm training for this age group is categorically unprotected. At least the City hasn't identified any, and we've found none ourselves." Indeed, the Supreme Court in Heller had quoted a 19th century treatise that "a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right." Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880).

In sum, the legal tradition of the nineteenth and early twentieth centuries, as well as post-Heller federal circuit cases provide two approaches to the right to arms of persons under 21. Under the 1911 approach of the Georgia Court of Appeals, and of the modern Fifth Circuit, persons under 21 have no rights that the government is bound to respect. Under the approach of the Seventh Circuit, people under 21 may sometimes be subject to extra regulation, but not to prohibition. A ban on long guns for persons 18-20 is bereft of any support in history and tradition.

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  1. 18-21 year olds are the most likely age group to experience violence. They’re far more likely to be a victim of violence than the age groups of legislators that would disarm them. They’re also far more likely to be perpetrators of violence. However, constitutional rights aren’t and shouldn’t be subjected to a collective utility test. Something as sacred as being able to defend your life shouldn’t be subject to scrutiny. I feel like the actual target of these age bans is young men, whereas young women aren’t an added risk to society, however I find it funny that they gloss over the 18 and 19 year olds living in their own apartments who we have no expectation to be able to defend themselves, and feel the laws that would disarm even them as being the moral high ground. For the children… err something.

    Also, there’s 3.7 million burglaries per year. 266,500 of those turn violent. A teenager is far more likely to be home alone when that happens than their parents. Why do we mandate 12-17 year olds be defenseless? Parents are the proper judge of whether or not their children are mature enough to have guns. I myself and several of my friends had our own guns and ammo in our our closets when we were teens (me since 12.) We weren’t a risk to anybody. In my opinion, a child that’s responsible enough to be home alone, babysit other siblings, etc is responsible enough to have access to a firearm for self defense in the home.

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    2. Furthermore, the fact there are hundreds of millions of firearms and billions of Arms in the USA yet gun violence
      was 39,773 in 2017.

      In 2017, about 60 percent of gun deaths were suicides, while about 37 percent were homicides, according to an analysis of the C.D.C. data by the Educational Fund to Stop Gun Violence, a public health think tank.

      That makes 1,193 instances of non-suicide and non-homicide gun violence.

      1,193 out of 330 million people in America.

      Almost 4,000 people die from drowning each year and there is no reasonable government interest in banning Arms or pools.

      1. “That makes 1,193 instances of non-suicide and non-homicide gun violence.”

        1193 armed robberies, in a year, nationwide? You might want to check your figures.

        1. Pollock, you are a moron.

          1. Yet, still smarter than you are. And obviously a LOT better at math and logic.

          2. Poor Pollock.

            1. Yes, I’m smarter than you are. Poor me. That’s an example of that weakness in your logical thinking I was pointing out for you. Go ahead and repeat it to prove you don’t get it.

              1. Yes, I’m smarter than you are. Poor me

                Says the dumbass who actually thought the reason gas mileage on trucks had gotten better is because they didn’t weigh as much.

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                  1. A new competitor enters the field, with a powerful opening. Sorry, Rocky, but the “what the hell are babbling about?” contest is in another comment thread.

                    Don’t be mad just because you got owned like Kunta Kinte.

                    1. “Don’t be mad just because you got owned like Kunta Kinte.”

                      Must have been in a comment that got deleted, then, because there’s nothing of that sort here now.

                    2. Stop pretending like you didn’t assert that the reason vehicles get better mileage is because they supposedly weigh less.

                    3. I’m not responsible for the things that happen in your imagination.

        2. According to the FBI Uniform Crime Reports there were 87,659 violent crimes where a firearm was used, 10,982 of which were homicides. That would make 76,677 non-homicide violent crimes were firearms were used.

          By contrast there were 255,023 non-homicide violent crimes and 4,144 homicides where a weapon other than a firearm was used.

          Firearm deaths, homicides and accidents (486 deaths), accounted for 0.4% of all deaths. (CDC data) You’re twice as likely to die from pneumonia and nearly five time as likely to kill yourself as you are to be murdered with a gun.

          2017 data.

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    3. Who says spam can’t be hilarious?

      > A teenager is far more likely to be home alone when that happens than their parents.

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    4. ” Parents are the proper judge of whether or not their children are mature enough to have guns.”

      Generally correct, though of course there are some parents who aren’t. The solution there is for the parent to buy and register the weapon, and supervise the kids’ use.

      When I was in grade school, the summer camp I went to for several years had a rifle range. The kids learned safe handling and range safety before touching a weapon, and all the shooting was supervised.

      Not unlike the “summer camp” I went to when I was 19. We got an afternoon’s worth of instruction with no weapons, then the next morning we all went down to the rifle range, where we were closely supervised. We delivered our 50 rounds downrange, then they took the M16s away and most of us never handled one again. Through the rest of my enlistment, I never touched one of those little guns again.

      1. That made me smile. Same here, 1975, Lackland AFB, Air Force Basic Training (or, as Marines referred to us, the Zoomie’s six week summer camp). 50 rounds on the range, then break down and clean the weapon.

        I shot well enough for Marksman badge but, alas, 50 rounds was too few to qualify. I did handle M-16s again, once. The lock to the currency safe in the San Vito Air Station (Italy) Finance office broke and it took two weeks to get replacement parts. So for that two weeks, all the Airmen in the Finance organization (which included us IT operations folks) stood overnight four-hour armed sentry shifts.

        But yup, glad I never had to point one at anybody.

        1. “50 rounds on the range, then break down and clean the weapon.”

          By 1985, they didn’t trust us to break down OR clean the weapon.
          I EARNED the marksmanship medal, (required a score of 360/400 with 40 rounds) but didn’t get it because my target had almost 70 hits, which made the scoring difficult. (The guy next to me misadjusted the sights on his rifle and shot up my target.)

          They covered, in depth, the violations that could cause an airman to fail rifle training. These included A) putting any body part over the firing line, at any time, for any reason, specifically including the collection of brass, and B) placing the rifle into fully-automatic mode. I saw people violate both rules. Violation of range safety rules carried the penalty of being recycled back to day one of BMT.

          I went on to tech school, where I had the opportunity to be trained on the proper care and feeding of the M61A1, and also the b57 and b61. I also got to drive around in 8 inches of snow with a 500 pound general-purpose bomb strapped to the bomb-lift vehicle.

          1. In fact, the rifles at BMT were so worn out that you’d get a misfire about every third round. And Airman Basics wielding these weapons were expected to hold up a hand to have a rifle instructor come and clear the misfire, and charge the rifle again. It was a range-safety violation for a recruit to pull the charging handle.

        2. Fort Dix and a Marksman badge (that’s the one in the middle, right?). We fired from a foxhole, lying prone and kneeing. I was actually pretty good with the first two and significantly worse with the latter, The one time I qualified with my Army National Guard unit they added standing. I don’t think I even practiced on that and the results showed that. The Dix range had layered pop-up targets, the closer ones dropping quicker, the furthest staying up longer. So you’d knock off something at 50 meters then try your luck at 300 meters. I got my M16 zeroed pretty good and seemed to have just a little bit of give on the trigger, for a last microsecond of aiming.

          Now, grenade launchers? I qualified expert on the M-203. But as I remember all 5-6 of us on the range did. Close counts in grenades….

          1. ” I qualified expert on the M-203. But as I remember all 5-6 of us on the range did. Close counts in grenades…”

            I’ll see your grenade launcher and raise you a b57.

            1. I bet close counts with those too…..

  2. How would a ban on possession work in states that identify the militia as the entirety of the population over a certain age, as in my state for all 18+ citizens and permanent residents?

    1. The 2A specifically prohibits a ban on Arms.

      Also, the US and state Constitutions do not currently provide enumerated powers to ban products and services.

      The federal gun laws are as unconstitutional as the Controlled Substances Act. Even the Prohibitionists knew that they needed a Constitutional Amendment to ban alcohol.

    2. Exactly. If the ultimate purpose of the 2nd is the body of people have their own guns at the ready so they can quickly form a militia to remain free, this does not serve that end whatsoever.

      1. Exactly. Having Arms is not the only part of being a good militia. Drills, marksmanship, maintenance, and familiarity are important parts of being effective with Arms.

      2. ” If the ultimate purpose of the 2nd is the body of people have their own guns at the ready so they can quickly form a militia to remain free, this does not serve that end whatsoever.”

        Nor, really, does it harm it, as minors are not generally expected to serve in the mililtia, in 1791 or today.

        Today’s Congress has undermined that purpose of the 2nd, anyway… the Founders thought to avoid some tyranny by not letting the Congress keep a standing army, meaning the militia was the primary defensive force. Today’s America has the largest military force in the world, so the need to keep a militia is almost totally moot.

        The Founders thought we needed a Navy, to protect our interests at sea, but that the seas would protect us from most of the enemies who could truly threaten the country’s existence. Today, the sea is not the powerful buffer it once was. So we need at least a couple of parts of the AF, too… SAC and NORAD.

        1. James, SAC was dissolved around 1995, merging with TAC to become ACC (Air Combat Command). HQ ACC at Langley AFB was my last active-duty assignment. NORAD was my first (Cheyenne Mountain Combat Operations Center near Colorado Springs). So, I agree!

          1. Obviously, I’ve been out for a while.

        2. Not sure about how things were in 1791, but I KNOW there were many young men who were part of their local militia from as young as 15 or 16, with respect to carrying and using firearms. Some young men served as colour bearers, or part of the marching bands. Luther Blanchard was 16 at the time of General Gage’s attack at Lexington to disarm the townspeople there and arrest John Hancock and Sam Adams. Master Burbank was part of the Acton Militia, under Isaac Davis, who was killed that day as his men marched toward the North Bridge at Concord and took the first volley from the Regulars. Master Burbank was the Fifer fo the company, and Colours as well. He was grazed by one of the ball from the Regulars, healed and went on to serve to rid themselves of the British rule.

          1. “I KNOW there were many young men who were part of their local militia from as young as 15 or 16”

            Sure. There were midshipmen on ships down into the single digits, too. But it wasn’t the expected behavior of ALL 9-year-olds to go serve on a ship. Nor was it expected of all the young lads to serve in the militia… until they grew up.

        3. 10 U.S. Code ? 246 – Militia: composition and classes
          (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
          (b) The classes of the militia are?
          (1) the organized militia, which consists of the National Guard and the Naval Militia; and
          (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

  3. If statistics justified infringing on the Constitution, we would preemptively lock up all black males.

  4. The hypocrisy of a government that will conscript and coerce an 18 year old to carry a gun to defend some foreign country but won’t let the same 18 year old possess his own gun to defend himself or his family.

    1. +1000

    2. Add in taxes requirements too.

      The government wants to tax the crap out of you based on the 16th Amendment but then refuse to protect your 2nd Amendment rights to keep and bear Arms.

  5. Similarly specious arguments might be found to extend all predicates of adulthood to children.

    All men are created equal, naked, squalling and ignorant. After that, it is dog-eat-dog competition, and children have not even begun to advance beyond [i]tabula rasa[/i].

    Law and order conservative tyrants are historically preferred to the chaos and anarchy of progressive demagogues. Green Nude Eel

    1. your problem stems from your acceptance of the fable of the concept of “tabula rasa”.

      Blank slate, really?

      Children learn to lie well before they are three months old. NO ONE has to train them to want their own way, and make a fuss to get it. Nor to strike at someone else “violating” their own wishes.

      Ever watched a gosling hatch out of its egg in an incubator, fully enclosed, constant light, nothing “natural” about it….. then, once hatched, see a small pan of grain, instatnly know what it is, walk over and begin eating it, KNOWING it is good and healthful? Tabula rasa indeed.

  6. It is obvious that children have no more second amendment rights than they do first amendment rights, You don’e see a flock of children telling legislators what laws to pass, there are no children publishing school papers, there are no children posting inane comments on social media, why should there be children running around defending themselves?
    Really!

    1. WOW you really need to watch the evening news. “You don’e see a flock of children telling legislators what laws to pass, there are no children publishing school papers, there are no children posting inane comments on social media, why should there be children running around defending themselves?” i’m hoping your tongue is firmly planted in your cheek. lol

    2. John Quincy Adams graduated Princeton UNiversity at 14, and at 16 was serving as the United States Ambassador to France.

      When my Dad was six or eight, he began carrying his rifle to school on his horse. So did most of the other boys, and quite a few of the girls. Recess and lunch times, the kids would go out back and have contests to see who was the best shot. Sometimes one of the GIRLS would be the winner. At 14 my Dad became the school bus driver, so he stopped carrying his rifle on his horse, He now carried it along with him as he drove the bus.

      I read an account of an 11 year old boy who owned his own BB gun. When an intruder bashed his way into the house, grabbed his Mom and dragged her into the kitchen, snagged a big chef’s knife, held it to her throat, and began threatening her and demanding unseemly acts of her, Junior ran up the stairs, grabbed his Daisey BB rifle, ran back downstairs, and began pelting the perp in the face with the BB’s. Realing the kid was determined, he made in informed decision and left, to be later caught to answer for his crime as he sought medical attention for his wounds….
      It is our sick modern cultire that has dumbed down and worse than useless. That HoggBoyy is a typical example of youth not fit to own firearms

      1. “upwind, both ways ….”

        Really! In the morning the wind comes out of the northeast, but after lunch it switches around to the SW. (although that’s mostly a late summer pattern, so it’s not so bad).

        But honestly, when I see the school bus driver stop, get out, walk around the bus to check for whatever, motion the 17 yrs old to get off and run to his mommy’s waiting arms, then walk around the bus to make sure the one kid who did get off the bus hasn’t somehow magically slipped back under the bus, it tends to make me wonder if a nuclear war wouldn’t have been that bad an idea after all.

        1. You probably want to stop hanging out watching the short bus unload. If anything happens to that kid, they’ll come looking for you.

  7. I’m not sure what possible legal basis remains for treating 18 year olds differently from 21 year olds, since the ratification of the 26th amendment. Whatever the legal distinction between “minors” and adults might be, 18 year olds are not “minors” anymore.

    1. ” Whatever the legal distinction between ‘minors’ and adults might be, 18 year olds are not ‘minors’ anymore.”

      Try telling that to the 18-year-olds in the bar. They won’t hear it.

      1. Yeah, I’m saying that, since the 26th amendment, a lot of traditional distinctions between 18 and 21 year olds are just floating there unsupported, like Wile E. Coyote having walked off a cliff and not yet looked down. Robbed of any support, but not yet overturned.

        1. So, before the 26th amendment, all those different age restrictions were well-supported?

          Your problem is that you’ve started with a false equivalency… old enough for X = old enough for Y… without bothering to examine it.

          Law uses age as a proxy for maturity, because it’s MUCH easier to test and verify that Joe is or isn’t X years old than whether Joe really understood all the ramifications of choosing to do whatever he done did.
          Is Joe mature enough to drive on public roadways and do so safely? Let’s just check to see when he was born. Is Jane mature enough to know all the possible ramifications of choosing to have sex with Joe? We’ll need to see her birth certificate to know for sure. Is Joe ready to start going to school? When was he born?

          With pretty much 100% of the time the choice of age being arbitrary and not really related to the subject at hand.

          Given absolute mastery of reality, I’d offer gun possession rights to anyone who could show the ability to handle them safely and responsibly… meaning that many, quite possibly most, 14 or 15-year olds would qualify, and some 30-year-olds would not. I’d set it up like cars are today… get a learner’s permit that lets you handle other people’s weapons when supervised, then go down to the range and show that you can and will handle the weapon without being dangerous to anyone else (who doesn’t have it coming), and then you can get your own weapon(s) of choice, that your financial ability can support.

          1. In 1969 at age 14, I received my first Drivers License, in Idaho (daylight only until age 16). State tested me, deemed me qualified at that age. (Could also legally drink at 19 and, no, they don’t allow either of those anymore)

            They had earlier tested my 13-month-older brother and deemed him unqualified. He didn’t get his DL until he was 16 (and boy, was he aggravated at having to be driven around by his little brother).

            So yes, seems a similarly rigorous system of qualification testing might be logically defensible in other life-safety situations.

            1. My parents went to WSU, just over the border, in the early 60s.

              My 19th birthday happened to be the 31st day of tech school… they had a no-alcohol policy for the first 30 days. In Colorado at that time, that meant that 3.2 beer was legal in the Airmen’s club. But the age for any alcohol at all was 19 in British Columbia. A bit more of a drive from my college than my parents had, but I happened to have a friend whose dad lived on Vancouver Island.

    2. As you said correctly Brett, the goal here is get as many voters for Team Blue who don’t care about protections of rights like the 2A since they cannot exercise that right until they reach 21.

      All the Age of Maturities for various activities should be the same to make it easy for out-of-state residents to know the law for that state.

      If 18 is okay for contracts, military service, voting…then its good enough for drinking, smoking, Arms, and drugs.

      1. “If 18 is okay for contracts[…]”

        Thing is, 18 is not ok for some contracts, and people under 18 can enter contracts.

    3. nor are 13 year olds.

  8. The “average” brain matures in development up to age 24-25, with some brain centers and connections involved in fear & aggression maturing latest. Neuroplasticity facilitates training aggressive military behaviors with 40-50% of enlisted US military under age 24 and 90% of officers over 24.

    So yes, there is a neuropsychological arguement for supervision of those under 25 in high-risk situations. Yet driving accidents are far any away higher at 16-17 vs 18-19 and above. Perhaps training and experience are more important than brain maturation? More likely training and experience facilitate brain maturation. Maybe all the more reason those preparing to exercise adult rights and privileges at age 18 should have basic training in government (like they used to do in schools), driving a car (or wagon off the farm in the old days) and shooting a gun?

    “Responsible” exercise of rights used to be trained by US society at a young age but has fallen from favor. Laws defining at what age one is adequately responsible to assume a right are not effective at assuring responsibility. Regarding guns, restricting possession/use of guns to ages 21+ is simply a partisan political effort to support *any* new gun law without regard to utility or efficacy.

    1. I can definitely see the argument for upping the Age of Maturity based on brain development.

      I just think that making the age restriction the same for everything. If 25 is the age we decide, then its 25 for voting, military service, drinking, contracts….

      If its 18, then companies cannot be forced to keep adult children on parent’s health insurance.

      The government is just getting far too involved in maturity. Set an age and be done with it.

      1. Don’t forget you would also make 25 the age of legal consent for sex.

  9. Interesting that (mostly) Democrats want 16 year-olds to have the vote, but don’t trust them with firearms until they’re 21 (if at all).

    1. And be able to have abortions without parental consent.

      1. If she’s having an abortion, she IS a parent, and giving consent.

        1. If she’s having an abortion, she IS a parent

          Hey idiot, if you’re a “parent,” then ending a pregnancy would be infanticide.

          1. You’re calling me an idiot because you’re bad at understanding words?

            Hint: Infanticide requires one or more live infants.

    2. Like with restoring the vote, but not 2nd amendment rights, to felons, the aim here is to maximize the number of voters who don’t care how rights are violated, because they personally don’t get to exercise them anyway.

      1. +100

      2. I’m not convinced the new SCOTUS will approve the blanket felon gun ban when it comes to them. I think the statute is facially unconstitutional, but even if not, a huge number of the people have legitimate as applied claims.

        1. The only ex-felon gun ban that could possibly stand up to constitutional scrutiny is a life long sentence of parole/probation where the duly convicted person is always under the care of the state and subject to the enslavement exceptions of the 13th Amendment.

          That sentence would seem to be a violation of the 8th Amendment to protect against cruel and unusual punishments, since not being able to defend yourself with a weapon is both cruel and unusual. It would also seem to be a clear attempt for government to sidestep the 2A protection.

          Otherwise, all adults who have completed their sentences and are not in custody or on probation or parole, should have their right to keep and bear Arms automatically restored as their rights under the 1A are automatically restored.

          1. I tend to agree. If someone is too dangerous to own a gun, he’s too dangerous to roam free period.

          2. The problem is that gun bans don’t typically run up against real constitutional scrutiny. They get evaluated under a special guns only version of constitutional scrutiny which is always easier to pass than normal constitutional scrutiny, and in some circuits basically impossible to fail.

            1. “They get evaluated under a special guns only version of constitutional scrutiny which is always easier to pass than normal constitutional scrutiny”

              Rational basis strikes again.

              1. Even rational basis becomes easier to pass where guns are concerned. Normal “rational” basis just requires that the judge be able to imagine some basis for the law that isn’t literally insane, even if it’s factually false and not the real basis of the law. Once guns come into the picture, many judges cease to care if the basis is insane, too.

                1. “Even rational basis becomes easier to pass where guns are concerned”

                  What’s “easier to pass” than something that always gets passed?

      3. “Like with restoring the vote, but not 2nd amendment rights…”

        Funny how all of these voting restoration statutes floating around are quite silent about restoring the firearm rights.

        If I don’t trust you with a gun, I certainly don’t trust you with voting.

        1. “Funny how all of these voting restoration statutes floating around are quite silent about restoring the firearm rights.”

          Write your Congressman.

    3. But not capable of securing their own insurance until they are 26.

  10. Whatever the Age of Maturity is, is the legal age to have the same rights as adults. Before that parents are the guardians of kids and the kids fall under the parent’s rights, in this case the right of the people to keep and bear Arms.

    So if a parents wants to let their kids use guns at 14, it none of the government’s business.

    Parents are also responsible for themselves and their kids.

    The gun-grabbers use age laws to circumvent the 2A, so whatever the lowest Age of Maturity is, is the age that young adults can enter into a contract and buy their own Arms.

    1. “So if a parents wants to let their kids use guns at 14, it none of the government’s business.
      Parents are also responsible for themselves and their kids.”

      No rights for orphans, then?

      1. We can play your stupid game.

        All rights start at conception. No more abortions, because you are violating the civil rights of an embryo.

        1. “We can play your stupid game.”

          You want me to try to out-stupid you? No chance, you have too much of an advantage.

          “All rights start at conception”

          Sure they do. But, having rights is not the same thing as having your rights outweighing anyone else’s rights.

          1. Poor pollock troll. So stupid that it gets people talking about euthanasia again.

            1. This word “troll”… you’re using it incorrectly. Guess you won the stupid contest… AGAIN!!!

            2. Poor pollock troll.

              1. You already “won”. No need for a victory lap. You’re definitely stupider.

                1. Poor Pollock troll.

                  1. Again? How stupid are you trying to look?

          2. democrat/socialist/progressive/nazis all seem to think their rights are superior in all cases. witness their continued attacks on the 1st, 2nd, 4th, 5th, 8th, 12th, 14th and 26th amendments as THEY define them are the only meaningful interpretations.

  11. If you view citizen rights as part of a “grand contract” with and between citizens, then limited rights for minors makes sense… minors have a limited right to contract.

    Then you can have a raging discussion about the dubious nature of arbitrary age limits as a proxy for maturity, wisdom, and capability for rationality.

    Are there some 16-year-olds who should have effectively-unlimited access to deadly weapons? Absolutely. Does that mean I want to argue for effectively-unlimited access for all 16-year-olds? It does not. Is there some choice between “all of them” and “none of them” that satisfies a majority of citizens?

    1. this 18 to 21 age restriction is just a further push of the camels nose under the tent.

      1. How is this responsive to my comment?

  12. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Kids are under their parents care until the Age of Maturity. While state would have powers to set that AoM, these are clearly desperate attempts to save the Democratic Party and Lefties from adult state residents who are not voting for them much anymore and to grab guns.

  13. I hope Mr Kopel will improve his verbiage in his final draft: “The Second Amendment rights of young adults include a core right affirmed in Heller: acquiring and keeping a handgun in the home for lawful self-defense.”
    conveys the false impression that Heller does not support the 2A outside the home.

    1. +10

    2. The handgun in the home is “a” core right under Heller. It’s not the only part of the Heller core.

  14. If young adults can not lawfully purchase firearms, their alternative is to join a gang.

    Are gangbangers less likely to commit murder than the general population?

    1. “If young adults can not lawfully purchase firearms, their alternative is to join a gang.”

      These are the only two choices?

      1. Well, yes.

        Is there a third option?

        1. Maybe “none of the above”?

  15. “A similar prohibitory rationale could be applied to many groups that perpetrate crimes disproportionately. For instance, African Americans commit murders at disproportionately high rates, but that cannot justify bans on all African Americans. Regardless of age or race, males commit far more murders and other gun crimes than females. The fact cannot justify an arms ban for all males.”

    I’m a little surprised that this paragraph didn’t get edited out; not that it is not logically correct, but it is rather to divisive to be persuasive as it touches on our polite fictions.

    1. Only if I post it.

  16. OK did this dude just hit his head on something? All of the cases he cites discuss minors possessing fire arms. 18 year olds are not minors.

    1. Tell that to them when they go to buy booze at the liquor store.

  17. Why should owning a gun be more constitutionally protected than voting? There is a special amendment for voting. But prior to that, states were free to set the age of majority for voting purposes.

    Under the view that there is a connection between gun ownership and militia membership, a state has always been free to set the minimum age for membership in its militia.

    1. There’s a special amendment for guns too….

      1. Yeah. He knows that. It’s why he referred to it.

  18. I like how we have multiple generations of people who grew up with guns in their lives and hunted at a young age but there’s still a persistent group of people who think kids can’t be anywhere near a gun. It’s like A Christmas Story is a 2A movie in disguise.

    I also like the idea that someone is responsible enough to vote and die for our country, but not to defend themselves within said country.

    1. “there’s still a persistent group of people who think kids can’t be anywhere near a gun”

      I got “anywhere near a gun” when I was in single digits of age, at summer camp. It was carefully supervised. Does that mean that children of single digits of age should be allowed unrestricted access to the exact same weapons?

      In most of the US, AFAIK, 15-year-olds can get a learner’s permit, which allows them to operate a motor vehicle when properly supervised. Many states have a limited driver’s license which can be issued to 16 and 17-year-olds, which has a bunch of restrictions on it. Then, 18-year-olds can get an unlimited driver’s license, and some vehicles require a specialized license for them, beyond the general driver’s license.

      This particular individual (can’t speak for anyone else) has no problem with people who are properly supervised (of whatever age) having access to firearms, nor with people who’ve demonstrated ability to handle a weapon safely (of whatever age) having access to firearms. I’d prefer actual qualifications to be the determinant rather than age.

      To me, the problem is that people who don’t (or won’t) handle their weapons safely can injure other people. If they were only a risk to themselves, then I’d say “let them take their chances, and take the consequences”.

  19. My big thing about a lot of this stuff is just some consistency. I have heard people saying that we need to lower the voting age to 16 and many of those people are the same people who say that one should have to be 21 to own a firearm. Drinking age is 21 now almost everywhere. We should have consistency for when we assign adult responsibilities to people and if people are not responsible enough to use alcohol or own a gun, then they probably should not be voting, smoking or other things. Not everyone matures at the same rate, some seem to not do so much at all, but we should have a general line for those things that says “You are an adult now. Be careful what you do with that.”

    1. CA, Mass. , N.Y. and Ill seem to have taken care of that matter with “red flag” laws. all 4 states have maed it possible to seize a persons personal property with out warrant and make that person show that the state should not have done the warrantless seizing.

    2. “We should have consistency for when we assign adult responsibilities to people”

      Why? You know the famous saying regarding foolish consistencies, right? (If not, fix this URL and follow it: https://www.goodreads.com/quotes/353571 -a-foolish-consistency-is-the-hobgoblin -of-little-minds-adored )

      The age at which a person is ready to start kindergarten is different from the age at which a person is ready to start high school, because kindergarten is not the same as high school (insert joke about modern public education here, if you insist). The age at which a person can be expected to responsibly handle an automobile is not necessarily the same age at which a person can be expected to responsibly handle consumption of alcoholic beverages, and neither one is the same age at which a person properly supervised can handle either. There’s no reason why all should be set to the same age.

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  21. There are some things a parent should always teach.

    When the individual child is ready.

    How to swim and basic watercraft.

    How to ride a bicycle and then to drive a car.

    How to earn and deal with money.

    How to operate a firearm and basic safety rules about that.

    The list is much longer. Legal whatever as this is a law forum.

    1. “There are some things a parent should always teach.”
      “How to operate a firearm and basic safety rules about that.”

      Stop, don’t touch, tell an adult.
      That’s about all you get to, if you don’t happen to have one in your home when your kid is a kid.

      Never point the gun at something unless you intend to kill it and the gun is always loaded cover most everything else.

  22. If I don’t trust you with a gun, I certainly don’t trust you with voting.

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