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"

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.