Gun Rights

9th Circuit Hears Contradictory Arguments on Whether People Aged 18 to 20 Have a Right To Buy Weapons

California insists those under 21 were legally "infants" in Founding Era; plaintiffs insist they were always part of "militia"

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The U.S. Court of Appeals for the 9th Circuit, considering the case of Jones v. Bonta, asked each side to submit briefs addressing the "original public meaning" of aspects of the Second Amendment, as it considers whether California is violating that amendment by barring those ages 18 to 20 from legally purchasing guns.

The plaintiffs are a team of citizens under 21 and various gun rights lobbying groups, including the Firearms Policy Foundation and the Second Amendment Foundation. A lower court back in November 2020 denied those challenging California's age-based gun purchase ban their request for a preliminary injunction to stop California from enforcing the law, and the 9th Circuit is now considering an appeal of that decision.

The law in question, California Penal Code 27510(a), insists licensed firearms dealers "shall not sell, supply, deliver, or give possession or control of a firearm to any person who is under 21 years of age." There are some exceptions for people like military or National Guard members or those with valid hunting licenses (though even they still can't buy handguns or "semiautomatic centerfire rifles").

This week each side submitted their briefs. Here are the arguments for and against the right of someone aged 18, 19, or 20 to buy a gun.

California insists that "Founding-era sources confirm that such individuals were considered infants without the full panoply of rights at the time, and consistent with that reality, jurisdictions have long restricted firearms access for individuals under the age of 21."

Those suing California insist early Americans under age 21 were, in Founding times, part of organized militias, which are mentioned explicitly in the Second Amendment. California says that doesn't matter, and confuses the duty of people in that age group to bear arms in an organized militia with a right to do so—that one can have the duty without having the right.

"The fact that the first Militia Act included persons below the age of 21 in the organized militia—and imposed an actual duty to keep and bear arms in militia service—does not dictate that those individuals had a corresponding right to keep and bear arms," California's brief insists, "much less to purchase them rather than procuring them through their parents or guardians" and insists that in those days, those under 21 "were generally understood to live under the authority of their parents."

California further points out the ruling Heller decision does state that certain categories of Americans may be barred from legal gun ownership, such as felons and the mentally ill, so, hey, why not people aged 18 to 20? Furthermore, California insists, precedent is on its side: "Every federal court to have considered age restrictions on the ability of 18-20-year-olds to purchase, procure a license to carry, or even possess a firearm has answered that question by concluding that there is a longstanding history of regulating access to firearms by those under 21 that either places such regulations entirely outside Second Amendment protection, or permits them to survive intermediate scrutiny."

The Supreme Court has never declared "intermediate scrutiny" as the proper standard for this core constitutional right, that standard roughly meaning that the government must prove a substantial fit between an important state interest and the law under challenge. Scrutiny analysis post-Heller has been a mess and one that usually redounds to the benefit of the restricting government, not the citizen seeking to have a right vindicated in court.

Also, since the law does not fully bar the "possession, use, inheritance, or acquisition of firearms"—merely the legal purchase from licensed dealers—California further argues it does not infringe Second Amendment rights meaningfully.

Those suing to overturn California's law, on the contrary, made these arguments about the age restriction on legal gun purchase and the Second Amendment in their filing.

First, they fall back on reasserting the vital importance of what California wants to deny matters: "Because it is undisputed that 18-to-20-year-olds were part of this Militia, at the Founding, it necessarily follows that these adults are protected by the Second Amendment's sweep." This whole "well they may have had the duty to bear arms but not the right to" thing California tries to argue, the plaintiffs dismiss out of hand as

nonsense. Whatever the interpretive weight of "firearms-related duties when determining the scope of the Second Amendment right" in other contexts, we know from Heller that militia duties necessarily entailed Second Amendment "rights to perform those duties," because the very "purpose for which the right was codified" was "to prevent elimination of the militia."

Arguments on California's part trying to re-litigate Heller by insisting that without state regulation of militias, the right cannot be assumed to apply to all citizens potentially part of a militia, are dismissed with this argument:

we know that the Founding generation had no linguistic difficulty referring to a "well regulated Militia" that was composed of the whole "body of the people" because both the Virginia ratifying convention and James Madison's original draft of the Second Amendment did exactly that.

The plaintiffs also attack California's assertion that in the Founding era anyone under 21 was essentially legally still an "infant" thusly: "California once again trots out the assertion that at the founding, 'the age of majority was 21.'…As we have twice explained, however, it is simply not the case that 18-to-20-year-olds 'were considered infants' for all purposes in 1791—and one context where we know they were treated as adults was membership in the militia."

As for California's assertion that existing law and precedent mark this age ban as one of the presumptively still legal "longstanding" restrictions on Second Amendment rights, the plaintiffs assert California's new argument "provides no answer to our briefing explaining, at length, that: (1) restrictions that appeared for the first time in the late nineteenth century can shed no light on the original meaning of the Second Amendment…and (2) anyway, the smattering of outlier historical restrictions cited by the State do not show any historical understanding that 18-to-20-year-olds could be barred from acquiring common firearms."

Heller, while insisting it was applying original understanding to Second Amendment jurisprudence, created a new lens through which it insists the right should always have been viewed. Thus, it can't be a simple winning argument to say, well, lots of states did this pre-Heller so these laws must be OK. New thinking through the implications of Heller needs to be applied to these laws, and now the 9th Circuit has seen arguments on both sides in this case. Which set of arguments the Court will find convincing remains to be seen, and a state full of 18-20-year olds awaits learning the extent to which California intends to infringe their right to armed self-defense.

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91 responses to “9th Circuit Hears Contradictory Arguments on Whether People Aged 18 to 20 Have a Right To Buy Weapons

  1. The first purpose of the Second Amendment is too often overlooked, fostering a liberty of mind and action necessary in the individual citizens of a free republic.

    Raising the age for the purchase of arm above that of suffrage ends it as a right and converts it to a government grated indulgence.

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    2. I think someone has read the law wrong. 18 year old people can buy and own guns. They can not own or buy HANDguns. They can own shotguns and rifles, just not pistols.
      Not sure how Reason has overlooked that.

      1. That’s not what the law says. And it’s both directly quoted and conveniently linked right in the article.

        Yes, there are a couple exceptions for licensed hunters, military and cops who might be younger than 21 but those exceptions do not change the fundamental problems with the law.

      2. This case is specifically to quash CALIFORNIA law prohibiting ALL firearm purchases by those under 21 years of age. Many other states have recently followed California’s wretched lead by enacting such age restrictions for all. Washington and Oregon also impose the same age restrictions. If this gets ruled upon as it should for the California law, any other states with similar laws will also have theirs tossed.

  2. So that’s why we lost WWII, all those 17, 18, 19, and 20 year old infants hitting the beaches at Guadalcanal and Normandy.

    1. That’s different. The guns those children were carrying were owned by the government.

      1. Not children. Infants.

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      2. at sixteen years of age, I lawfully purchased firearms, and I was not even born when the Second German War ended. So much for that faulty logic.

        I also legally bought ammunition at twelve. A box of Peters .22 WRF cost a whole thuttynine cents then. At fifteen I bought BMG 50 rounds, legally.

        Those men, some still 17, were able to purchase guns when they returned home, legally. , after mustering out of the military at war’s end.
        What planet have you been infesting these past fifty years?

    2. Remember, they had a *duty* to die for the state, not a right to a say in it.

    3. California undermines its own argument by carving out exceptions.

    4. Ages of Servicemen

      WAR DURATION TYPICAL AGES
      Revolutionary War 1776-1783 16-60
      Barbary Wars 1800-1805 16-60
      War of 1812 1812-1815 16-60
      Civil War 1861-1865 16-60
      WWI 1917-1918 [US] 18-
      WWII

      1. We have a flag button, and now a mute button; would an edit button be all that hard?

        WWI 18-38
        WWII 18-41

        So yeah, California’s argument is bullshit, but then I rather doubt anyone is surprised.

  3. Don’t worry senile Joe knows Cali is the leader in all things and plans to emulate them.

    1. Actually, it was Trumpy the Clown that proposed that a pumped up on steroids version of this Cali law be emulated in Federal law.

      Not that Biden is any friend of the RKBA, but let’s not memory hole its many enemies and their threats against it. Forgetting the past dares its return.

      1. Why did you attempt to then?

        1. “Trump calls for raising minimum age to buy all guns to 21

          The president says those staying silent are “afraid” of the NRA.”

          https://abcnews.go.com/Politics/president-trump-vows-care-bump-stocks-executive-action/story?id=53421961

          Trumpism is Fascism rebranded by and for those who have never read a book.

  4. Owning a weapon is a privilege. If you refuse to say what you will use it for or state your core principles and instead respond, “Might makes right” and “Fuck you that’s why”, then you will lose this privilege and you have only yourself to blame. No one will think it’s a good idea to extend to you self defense rights, regardless of your interpretation of 2A.

    Furthermore you cede any justification to intimidate or threaten judges or journalists when they reject your position.

    1. The point is that our Constitution considers owning a weapon for self-defense to be a right, not a government-granted privilege. Obviously, there is no right to threaten or intimidate judges or journalists.

      1. If you refuse to say what you’re going to use it for, then no it’s not a right, and a judge would be foolish to extend it to you.

        Obviously, there is no right to threaten or intimidate judges or journalists.

        Good, then remember that when the court rules against you.

        1. If you refuse to say what you’re going to use it for, then no it’s not a right, and a judge would be foolish to extend it to you.

          “It” could be also refer to healthcare, say, or education, one presumes.

          1. True, which is why a judge would be foolish to grant you a right to ‘self-defense’ when you refuse to say what that means.

            1. We already know what that means
              We have several centuries of jurisprudence covering the subject.

              No one is in doubt about what self defense means.

              1. Great then let young people come on the site and tell us. If they refuse that’s fine, but then don’t expect a judge to grant them ‘self defense’ rights. No judge would read your comments here (by you and your allies-in-denial) and think expanding your weapons rights would be a smart idea.

                1. Why is coming on *this* site required for a ‘judge to grant’ (which, by the way, is not how access to firearms works in this country) you some mythical ‘firearm ‘privilege’?

                  What is it about Reason Magazine that makes that the place to do this?

                  And why ‘young people’? Old people are exempt?

                  Like, do you realize how ranting and incoherent you are being?

                  Take your medication.

                2. A judges job isnt to determine what is smart or moral, it is to interpret the laws as written.

            2. It does not fall to ME to say or determine what that means.
              It DOES fall to GOVERNMENT to PROTECT my right to own, posses,s buy, sell, carry, use, store, keeo, modify, carry about upon my person, any weapon of MY choice, no matter how “black and ugly” it is (I personally do not own any rifles in that class.. just don’t like them, but I will defend the right of anyone else to buy/own/carry/use one of he so wills. And I will NEVER require of him to explain why he had THAT one…..his bidniss nunna mein.

        2. If you refuse to say what you’re going to use it for, then no it’s not a right, and a judge would be foolish to extend it to you.

          The insistence on speaking the appropriate words, phrases, or incantations that call down the forces which imbue you with a right to defend yourself is justification enough for the 2A.

          Not speaking or ‘Fuck you, that’s why.’ is less of a threat than ‘I oppose your right to defend yourself under any or all circumstances.’

    2. If you refuse to say what you will use it for or state your core principles and instead respond, “Might makes right” and “Fuck you that’s why”, then you will lose this privilege and you have only yourself to blame.

      I’d say “Now do free speech.” except you already did.

      1. As long as you refuse to use your free speech to state what you need defense from, a judge would be foolish to grant you unlimited self defense rights. And no one would think you’re justified to intimidate or threaten the judge when she denies you. Meaning you’re going to lose your privileges and you have only yourself to blame.

        Now confirm my point by again refusing to evince your positions:

        1. The right to bear arms…with a signed hall pass from a judge.

          1. Yes you must articulate your core principles and no judge would read your comments here and think you deserve self defense rights without doing so.

        2. Now confirm my point by again refusing to evince your positions.

          I didn’t refuse to evince my position. My reason for self defense has been stated as the state itself, a priori. Claiming you may need to defend yourself is nowhere near the intimidation or a threat posed by the prhase ‘I oppose your right to defend yourself under any or all circumstances.’ The opposition of defense isn’t passive indifference, it’s offense or aggression.

        3. My speech is not restricted.. it is free. That means anything I say is legit and cannot be quashed. It also means I hve no obilgation to say anything. or nothing.

          YOU speak as a tyrant, a busy body, an oppressor. Do I have to explain what I want for my supper, or wny?

          get real, pal. You sound like one of them nannies going about putting their noses into everyone else’s behind. A sick and perverted nasty habit you would do well to lose.

    3. But I’ve said what I will use it for and my core principles and yet you still insist you will take my ‘privilege’ away.

      1. Where did you post your core principles? It’s fine if you refuse to say, but then don’t expect a judge to respect your self defense ‘rights’.

        I’m not taking your privilege away. I’m explaining why no one will come to your defense when the state takes them away. You will lose them and have only yourself to blame.

        All young people have to do is come here and explain why they need this right. If they refuse that’s fine, but that’s why they’ll lose. And you’ll have no justification for intimidating or threatening the judge, as too often happens here in the comments, and too often no one (other than me) condemns.

        1. Here. On this very site where you ‘require’ that we do so.

          Are you not paying attention?

        2. quotingthe addict myth:

          “All young people have to do is come here and explain why they need this right.”

          all any person of any age need to is silently point to the words on the paper which explain “why I need this right”. No further explanation need be given, it is already done for us all.
          “the security of a free state (that word means civil society) is the duty of “the people”, and this is why “tne people” MUST have the right to arms. And NOWHERE in the founding documemts is one’s age used to define “the people”.
          Go crawl back under your pet rock.

    4. Sarcasm goes right over some folk’s heads.

    5. The execution of a Constitutional right is not a privilege.

    6. “Owning a weapon is a privilege. If you refuse to say what you will use it for or state your core principles..”

      That came straight out of your ass.

      Such rights, as those enumerated in the BOR, are natural and inalienable. That means they do not need yours, or anyone’s, approval, and I literally do not give a fuck if you are comfortable with them or not.

      1. Based on his repetition, this guy thinks he has the perfect argument. People who think theyre smarter than they are are the fucking worst.

    7. That’s why the heading over the first 10 Amendments to the actual U.S. Constitution is the

      “Bill of Priveleges Contingent on State Approval of How they Might Be Used”

      It’s just that all the books the public schools teach history from are quoting the abridged version of the document…

  5. California says that doesn’t matter, and confuses the duty of people in that age group to bear arms in an organized militia with a right to do so—that one can have the duty without having the right.

    Kindof like saying one can have the duty to vote for a particular candidate, before one has the right to choose who they want to vote for. Just in case anyone was wondering why they want 16 year olds to vote…

  6. California insists those under 21 were legally “infants” in Founding Era; plaintiffs insist they were always part of “militia”

    If only there was some established law that could guide such a decision:

    From 10 CFR 246:

    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.

    1. If only there was some established law that could guide such a decision

      That’s the most laughable part about this IMO. Spartans began military training at the age of 7, Joan of Arc formally picked up the sword at the age of 16. There are thousands of years of children younger than 16 being granted citizenship and treated as aduts for their martial abiilties and, all the culture, customs, common law, judicial law, legislative law and the argument against people on the verge of being adults owning arms is ‘founding-era sources’. I mean, FFS, even Harry Potter got his wand before his 11th birthday.

      1. And then Harry defeated the embodiment of ultimate evil Voldemort Delores Umbridge.

      2. And a lot of the guys in Vietnam with me were infants, according to California. Can they sue Selective Service?

        1. Nah, they should now sue California upon discovery that they were just “infants.”

  7. Wow. Now the gun controllers are saying that the 2nd Amendment does not mean what it says even in the context of a militia.

    No, California , they were not considered infants but infantry.

    1. And cavalry.
      And Artillerymen.

    2. Nicely done.

  8. There are some exceptions for people like military or National Guard members or those with valid hunting licenses

    “We must close the “military or National Guard members or those with valid hunting licenses” loophole!”

  9. Founding-era sources

    Holy fuck! *Founding-era*… *Sources*? Not English common law. Not customs into antiquity? Not precedents, edicts, or doctrines?

    Makes it sound like they found 2 books from the late 18th century and whimsically decided to base make it legal principle.

    Your honor, in 1868, John Moses Browning legally produced his first firearm at the age of 13. I rest my case.

    1. Books? Here I thought they found a couple of people claiming to be over 200 years old. I understand they’re still registered voters in Chicago. Not sure what’s the problem.

  10. “Contradictory arguments”…

    It would hardly be an argument if they agreed, now, would it?

  11. At least one of the arguments seems pretty (self-)contradictory.

  12. Let’s review the bidding:
    Want to exercise an explicitly named right guaranteed by the US Constitution? 21 or over only.
    Want an elective surgery that will irrevocably change your life and inhibit your normal sexual development and reproductive capability? Not only at 13, but the feds will help pay for it and help you keep it secret from your parents.
    This must be California.

    1. California now identifies as Susan.

      1. That’s Californix, you sexist!

  13. Age discrimination.

  14. If it weren’t for 26A, I would actually be quite fine if SCOTUS used this case once and for to declare whether and how age comes into play with rights, extending from consent, contracts, voting, legal responsibility, firearms, drinking and smoking, car rental, and everything else…

    However, with 26A declaring that 18 year olds have the right to vote, I think there should be a strong post-Heller position that this restriction fails. (Alcohol regulation to 21 still justified by the broad Congressional grant in 21A.) IANAL though, so…

    1. The drinking age is not set by Congress. Congressional involvement was to bully the states into setting their drinking ages at 21 by threatening to withhold transportation funding. A tactic the Court has found unconstitutional in other circumstances.

  15. part of organized militias, which are mentioned explicitly in the Second Amendment.

    No its not.

    1. And it doesn’t matter – the 2nd isn’t about the militia anymore than it is about hunting.

  16. Which set of arguments the Court will find convincing remains to be seen,

    Forget it Doherty, it’s 9th circuit-town.

    1. Ha! This! Next, they’ll be going after Snapchat as a dangerous weapon that should only be wielded by those older than 21.

  17. Thalidomide victims have the right to bear flippers.

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  19. If they also raised the voting age to 21, I might go along with them on the principle that today’s 18-20 year olds are infants who need to mature before being granted the full rights of citizenship. (Maybe even 25.) We lowered the voting age to 18 during the Vietnam War under the rationale that the people fighting and dying should have a voice in selecting the government that is sending them to do so. This rationale is belied by the fact that few 18-20 year olds were actually asked to go to Vietnam. The reality is probably closer to today’s push for lowering the voting age to 16: politicians trying to select their voters rather than letting their voters select them.

    1. A good number of 18-20 year olds were conscripted into the Army and ordered to go to Vietnam, but it might be true that not many were technically simply “asked” to go.

      There’s a much higher than zero possibility that a number of the people involved with constructing California’s claim that 18-20 year olds aren’t really “adults” were also directly involved with one or more of the efforts to lower the voting age to 16 in some state/local elections. That makes sense, though; when you’re looking to increase the share of the electorate who are misinformed and narcissistic enough to believe strongly in “progressive” policies, adding a bunch of “infants” into the voting ranks is an obvious path to that end.

  20. So CA admits it wants infants to vote.

    One age for adulthood. I don’t care what you set it to. But at that one age you should be able to enter into contracts, vote, marry, buy alcohol, tobacco and firearms, and do whatever other things are currently age-restricted.

    1. CA is also a state where it’s technically illegal for anyone under 18 to have sex without parental consent, but the idea of requiring parental notification to have an abortion is considered beyond the pale (virtually every other non-emergency medical procedure also requires parental consent as far as I know). In general, the concept of “my body, my choice” really only applies to one or two situations in the minds of the rulers of this state.

  21. If one is old enough to be drafted then one is old enough to bear arms.

    What about if one is old enough to vote one is old enough to buy a gun? Uh sure, but only if there’s a ten day waiting period to vote after first going through a background check.

    1. Will my VOID card come with an unobserved 30-day maximum lead time and be good for a decade or will I have to renew more often?

  22. The ninth circuit, in Young versus Hawaii, declared that Hawaii does not have to issue either concealed carry or open carry licenses.

    So at least in Hawaii, even those over 21 can only bear a handgun from the kitchen to the front door and no further.

    And this is after Trump added conservative judges to the ninth circuit!

  23. Imagine if someone argued the original public meaning of a citizen. You can tell they’re looking for an argument in support of a conclusion and not the other way around.

  24. California Democrats hate freedom but they hate the 1st, 2nd and 4th amendments most of all.

    1. They’re also especially hostile to the 9th and 10th (unless there happens to be a non-Dem in the Presidency, in which case “states’ rights” ceases to be a dog whistle intended only to stir up the KKK).

      And they’re not particulary fans of the 6th (depending on who the accued and accuer happen to be in a case).

      If “Calexit” had somehow actually succeeded, the founding document for the new nation of California would include at most 3 of the first 10 amendments from the U.S. Constiution, and those would quite likely be made contingent on identitarian critera.

  25. I’ll wager that the 9th Circuit hears contradictory arguments in about 100% of the cases they consider.

    1. Well, primarily on appeals, the facts aren’t in question, just the law. So you hear different sides of a coin, different points of view, and different opinions. You have facts and “alternative facts”, have have to weigh which are more important. On this, the arguments are so blazingly different that they cannot both be true

  26. And now we shall have no infantry…if all the soldiers are over 21 they’re the full growedery

  27. Heller clarified that the Second Amendment includes the right to keep and bear arms for the purpose of self defense.

    Parents have no responsibility to protect their spawn after the age of 18 and are free to kick them out at that time with no repercussions. One then wonders how someone between the age of 18 and 21 is supposed to protect themselves should they only have funds to live in an area where nighttime break-ins are a substantial risk.

    Yes, this only restricts purchase of certain types of firearms — but those types include among the most useful for self-defense. Anyone buying a gun for a 20 year old to get around this restriction would likely be guilty of a “straw purchase” so that’s not an option even if that 20 year old could find someone who was otherwise willing to do so.

    I wonder how the court would respond to a law that says that no one can receive compensation from anyone to perform an abortion on anyone under 21 years of age. Sure, those under 21 can have an abortion so that right is protected, they just can buy one (or have someone else such as Planned Parenthood buy one on their behalf).

  28. John Quincy Adams graduated one of the early New England colleges when still an infant, then. (he was fifteen, I believe” At 17 or so he was US Ambassador to France. As an infant, right?

    Luther Blanchard was sixteen the day General THomas W Gage attempted to disarm the people of Lexington and Cccord. He had been an active member of the Militia of the town of Acton, some ten miles north of Concord. He mustered early the morning of 19 April to go take care of the British Regulars coming to disarm the people of Lexington and Concord. He fought again at Bunker Hill a few weeks later. He died of a gunshot wound later that year, still sixteen. The “minutemen” were typically 17 to 19, not yet married and with famiily responsibilitie,s thus able to muster out the door “in a minute”. Hundreds of them answered the call to battle 19th April 1775, well under the age of 21. Infants, I tell ya, INFANTS!!!!

    Infants in the militia, how rude!!!!

  29. We can conscript a 19-old ‘infant’ into the Army and give him a M-16 or put him in a tank to defend us but he can’t buy a pistol to defend himself or his family. This is very, very wrong. Gun ownership and possession is a RIGHT, not a privilege. The legal age of maturity is 18. The State of California has no more right to tell a 20 year old he or she cannot buy a gun than they have the right to tell them what they can say or where they can worship.

  30. If they set a gun age of 21, that will be the LAST major gun control law ever passed.

    If I ran the NRA (which is more an advocacy association for gun manufacturers and cops who buy a lot of guns from them) I would be pushing hard for a 21 gun age. It’s still morally wrong to withhold rights from 18-20YO adults, but it would be a disaster for the gun grabbers.

    It worked for the alcohol industry. Alcohol laws keep getting looser and looser if you’re over 21.
    It worked for marijuana. Once we decided to tie MJ to the drinking age, legal weed has become a slam dunk.
    It’s worked for the gambling industry for decades.
    Most recently, the moral panic over vaping went up in so much vapor now that you have to be 21 to vape.

    I call this the Lightner principle, so named after Candy Lightner of MADD, the mother of the 21 drinking age and more recently a lobbyist for Big Booze.

    1. The Lightner principle says that if you set a legal age of 21 for your vice, it then becomes immune to further regulation.

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