The perpetrators of the recent mass shootings in Buffalo, New York, and Uvalde, Texas, both passed background checks when they bought the rifles they used in those attacks. That's because neither had a disqualifying criminal or psychiatric record, which is typically true of mass shooters. Given those facts, it was puzzling that politicians responded to the massacres by demanding an expanded federal background-check requirement for gun buyers.
By contrast, proposals to raise the minimum purchase age for long guns at least have something to do with the Buffalo and Uvalde attacks, since both shooters were 18 years old. But it is hard to see how that policy can be reconciled with the Second Amendment unless you assume that 18-to-20-year-olds, unlike older adults, do not have a constitutional right to keep and bear arms. Two federal appeals courts recently rejected that proposition, citing a long tradition of gun ownership by young adults.
The minimum age for buying handguns from federally licensed dealers is 21. But that rule does not apply to private handgun sales or to purchases of shotguns or rifles; the federal minimum age for both is 18. Some states impose additional age restrictions. In New York, for example, legal handgun possession requires a license that can be obtained only by residents 21 or older, while 18 is the minimum age for buying long guns. New Jersey's rules are similar.
Last week, New York Gov. Kathy Hochul, a Democrat, said she favored tightening her state's age restrictions. "How does an 18-year-old purchase an AR-15 in the State of New York [or the] State of Texas?" she asked. "That person's not old enough to buy a legal drink. I want to work with the legislature to change that. I want it to be 21. I think that's just common sense."
New York already bans the sale of "assault weapons" to all civilians, regardless of age. It defines that category to include semi-automatic rifles that accept detachable magazines and have any of several prohibited features, such as a folding stock, a pistol grip, a bayonet mount, or a threaded barrel. Guns without those features remain legal, even when they fire the same ammunition at the same rate with the same muzzle velocity as prohibited models.
According to the online manifesto that police attributed to the Buffalo shooter, the Bushmaster XM-15 rifle he used was legal when he bought it because it had been fitted with a fixed magazine. He easily reversed that modification, transforming a legal rifle into a prohibited "assault weapon." That change had practical consequences, since it allowed him to use detachable magazines, including magazines that exceeded New York's 10-round limit. But other workarounds, such as replacing an adjustable stock with a fixed stock or a pistol grip with a Thordsen grip or a spur grip, allow New Yorkers to legally buy and possess rifles that are functionally identical to the ones targeted by the state's "assault weapon" ban.
Hochul evidently wants to set a minimum purchase age of 21 for such "featureless" rifles. But it's not clear how that category would be defined. It could be limited to modified versions of AR-15-style rifles like the Bushmaster XM-15, or it could cover all semi-automatic rifles that accept detachable magazines, which would have a much broader impact. Since Hochul added that "I don't want 18-year-olds to have guns," the rule she has in mind may be even more sweeping, encompassing all rifles and shotguns.
That approach would be similar to what Gov. Phil Murphy, another Democrat, wants to see in New Jersey, which likewise already has an "assault weapon" ban. Murphy supports raising his state's minimum purchase age for all firearms to 21.
California, which has long prohibited the sale of handguns to adults younger than 21, recently expanded that restriction to cover all centerfire semi-automatic rifles. This month the U.S. Court of Appeals for the 9th Circuit said that new rule was inconsistent with the Second Amendment, even as it upheld a separate law requiring 18-to-20-year-olds to obtain hunting licenses before buying long guns.
For centuries in England and America, a three-judge panel noted in Jones v. Bonta, citizens as young as 15 or 16 were expected to participate in militias and posses, bringing their own weapons. By the time the Second Amendment was ratified, the "well-regulated militia" it mentions was understood to include adult males 18 or older. According to the Supreme Court, the definition of that militia is crucial in determining the Second Amendment's scope.
In the landmark 2008 case District of Columbia v. Heller, the Court nevertheless rejected the idea that "the right of the people to keep and bear arms" is limited to militia service, saying it also includes the right to possess guns "in common use" for "lawful purposes" such as self-defense. In Jones, U.S. District Judge M. James Lorenz relied on a variation of the militia-only argument when he rejected a motion for a preliminary injunction against enforcement of California's ban on selling semi-automatic rifles to young adults. Unlike older adults, Lorenz said, 18-to-20-year-olds do not have an individual right to armed self-defense.
The 9th Circuit said that claim was inconsistent with the Supreme Court's Second Amendment precedents. "The district court's main premise has already been rejected," Judge Ryan Nelson wrote in the majority opinion. "The right is not conditioned on militia service. Indeed, that was the position of the dissenters in Heller, and the Court rejected it."
California also cited state laws enacted in the 19th century that restricted firearm sales to residents younger than 21. The 9th Circuit thought that record was inadequate to establish the constitutionality of California's age restrictions.
"We identify twenty-eight such state laws passed between 1856 and 1897," Nelson wrote. "Of these laws, nineteen banned sales of only pistols to minors, and several
had exceptions for hunting or parental consent. Of the nonpistol bans, three only applied to minors under fifteen years old, only required parental consent, or both. Eight states banned the sale of all firearms or deadly or dangerous weapons to minors."
The Supreme Court did not begin applying the Bill of Rights to the states via the 14th Amendment until the 1920s, and it did not do so with the Second Amendment until 2010. But several state constitutions included protections analogous to the Second Amendment.
"The Reconstruction-era laws show that long guns were far less regulated than handguns," Nelson wrote. "Ruling out other state laws that are similarly inapplicable
(laws only requiring parental consent, only banning dangerous and deadly weapons, and only applying to children under fifteen years old), we are left with only five
complete bans on sales of firearms to minors. Of these five laws, three were passed in states without a Second Amendment analog in their state constitution. So only two states—Kentucky and Michigan—banned the sale of firearms to minors and had a Second Amendment analog. These two laws—both passed over a decade after the
ratification of the Fourteenth Amendment—cannot contravene the Second Amendment's original public meaning."
Since "our historical analysis leads us to conclude that young adults have a Second Amendment right to keep and bear arms," the 9th Circuit said, the question is whether the burden that California's age restriction imposes on that right passes constitutional muster. Even assuming that young adults have such a right, Lorenz said, California's rule easily passes "intermediate scrutiny," which requires a "reasonable fit" between a law and a "significant, substantial, or important" government interest.
The 9th Circuit concluded that Lorenz erred by applying intermediate scrutiny. The correct test, it said, is "strict scrutiny," which requires that a challenged law be "narrowly tailored" to serve a "compelling" government interest. Under California's law, the appeals court noted, "the only young adults who can buy semiautomatic rifles are some law enforcement officers and active-duty military servicemembers." In effect, the court said, that is "a blanket ban for everyone except police officers and servicemembers," and "we have never held that intermediate scrutiny applied to
a rule that banned the purchase of a major category of firearm."
Given the disadvantages of manually reloaded rifles and rimfire rifles (which fire ammunition with "poor stopping power"), California's law, combined with its preexisting ban on handgun sales to young adults, leaves them with shotguns as the only practical alternative for "self-defense in the home," the 9th Circuit said. "Even acknowledging that shotguns are effective weapons for self-defense in the home," it added, "shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle."
Based on those considerations, the 9th Circuit concluded, California's law imposes "a severe burden on the core Second Amendment right of self-defense in the
home." That burden cannot be justified under strict scrutiny, it said, and fails even under the less demanding standard of intermediate scrutiny.
California argued that its age restriction was a "reasonable fit" in the context of promoting public safety because young people are disproportionately likely to commit violent crimes. It noted that "young adults are more than three times more likely to be arrested for homicide and manslaughter than other adults."
As Nelson pointed out, that comparison obscures the fact that "only 0.25% of young adults are arrested for violent crimes." That means "California's law sweeps in 400 times (100% divided by 0.25%) more young adults than would be ideal." Because "it regulates so much more conduct than necessary to achieve its goal," the appeals court said, "the law is unlikely to be a reasonable fit for California's objectives."
On the core question of whether the Second Amendment applies to young adults, the U.S. Court of Appeals for the 4th Circuit reached similar conclusions in the 2021 case Hirschfeld v. ATF. The issue there was the federal law that forbids licensed dealers from selling handguns to buyers younger than 21. "Our nation's most cherished constitutional rights vest no later than 18," the 4th Circuit said. "And the Second Amendment's right to keep and bear arms is no different."
That decision was later vacated because the plaintiff turned 21, making the case moot. But the 4th Circuit's analysis is still relevant in assessing the constitutionality of new age restrictions like those favored by Hochul and Murphy.
"We first find that 18-year-olds possess Second Amendment rights," the 4th Circuit said. "They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons." To justify its restriction on handgun sales, Congress, like California's legislature, "used disproportionate crime rates to craft overinclusive laws that restrict the rights of overwhelmingly law-abiding citizens."
Furthermore, the 4th Circuit noted, "Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes." That would be hard to do, since research indicates that criminals typically obtain firearms from other sources. According to a 2019 report from the Bureau of Justice Statistics, less than 8 percent of state and federal prisoners who used firearms reported buying them from gun stores.
"We hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment," the appeals court said. "Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status."
No one doubts that constitutional guarantees like freedom of speech, freedom of religion, due process, and the ban on unreasonable searches and seizures apply to young adults. Furthermore, notwithstanding the alcohol restrictions that Hochul cites, 18-to-20-year-olds are treated as adults in most respects: They can vote, marry, join the military, sign contracts, and live independently. Banning firearm sales to young adults requires not only an exception to that general rule but also an exception to the way the Bill of Rights is typically applied.
The argument based on crime statistics could easily be used to justify setting the minimum purchase age even higher than 21. The national arrest rate for murder and manslaughter, for example, is a bit lower among 21-to-24-year-olds than it is among 18-to-20-year-olds but still nearly four times the rate for Americans 25 or older. The arrest rate for aggravated assault is even higher among 21-to-24-year-olds than it is among 18-to-20-year-olds.
Likewise with the argument that young adults are too immature and irresponsible to be trusted with guns. According to a 2013 article in the journal Neuropsychiatric Disease and Treatment, "The development and maturation of the prefrontal cortex occurs primarily during adolescence and is fully accomplished at the age of 25 years." If that is a decisive argument against allowing young adults to possess guns, the armed forces need to seriously reconsider their recruiting practices.
They will never do that, of course, and their current approach is consistent with the history that the 9th Circuit and the 4th Circuit emphasized in their decisions: For centuries, citizen militias and posses relied on young adults who were not only allowed but in many cases required to own guns for those purposes. That history, in turn, illuminates the original public understanding of the Second Amendment, which seems inconsistent with the age discrimination urged by politicians like Hochul and Murphy.