Guns

4th Cir. Panel Affirms Second Amendment Rights of 18-to-20-Year-Olds

The panel strikes down the federal statute that bans professional gun dealers from selling handguns to 18-to-20-year-olds.

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From today's (very long) majority opinion in Hirschfeld v. ATF, written by Judge Richardson and joined by Judge Agee, with Judge Wynn dissenting:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights  cannot be enjoyed until a certain age. Our nation's most cherished constitutional rights vest no later than 18. And the Second Amendment's right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. 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. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft over-inclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, 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. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. 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….

Those of good faith on both sides of the gun debate wish to protect lives and uphold individual rights. We appreciate the seriousness of gun violence in this country and applaud Congress's laudable desire to curb senseless violence. But we also recognize that the Second Amendment embodies a fundamental, pre-existing right that enables "the people" to preserve their own life, liberty, and property. Striking a balance between those interests is a difficult exercise that draws intense passions on both sides. And that is for good reason.

But while Congress—or judges—may have struck a different balance long after ratification, that role is foreclosed to us by the balance that the Founders chose. We cannot now second-guess or undermine their choice. History makes clear that 18- to 20-year-olds were understood to fall under the Second Amendment's protections. Those over 18 were universally required to be part of the militia near the ratification, proving that they were considered part of "the people" who enjoyed Second Amendment rights, and most other constitutional rights apply to this age group. And Congress may not restrict the rights of an entire group of law-abiding adults because a minuscule portion of that group commits a disproportionate amount of gun violence. Congress's failure to connect handgun purchases from licensed dealers to youth gun violence only serves to highlight the law's "unduly tenuous 'fit'" with the government's substantial interests.

Eighteen- to twenty-year-olds have Second Amendment rights, and the challenged laws impermissibly burden those rights. As a result, we vacate the district court's grant of the motion to dismiss, reverse the denial of summary judgment, and remand for further proceedings.

And from the likewise long dissent:

Today, my good colleagues in the majority break new ground by invalidating a modest and long-established effort to control gun violence. The majority holds that Congress may not enact a law making 21 the minimum age to purchase handguns from federally licensed gun dealers.

But the majority's decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system.

To be sure, the Second Amendment's right to keep and bear arms is an exceptional right, just not in the way the majority imagines. According to my colleagues, even though all individual constitutional rights are subject to limitations, the Second Amendment risks being relegated to a disfavored "second-class status."

While they are not alone in this concern, I do not share it. Indeed, in a country that boasts a Congress, bench, bar, academy, and electorate that are all attentive to the prerogatives of gun owners, where many may conceal their weapons, carry them openly, or "stand their ground," and where civilian gun ownership rates are second to none, the majority's second-class status concern is simply surreal.

No, the Second Amendment is exceptional not because it is uniquely oppressed or imperiled, but rather because it is singularly capable of causing harm. As other courts have recognized, while there are dangers inherent in other constitutionally protected rights—like the rights to speak and assemble—the Second Amendment alone protects a direct and lethal right to endanger oneself and others….

If the Fourth Circuit doesn't reverse this en banc, it seems very likely that the Supreme Court will agree to hear the case (given the disagreement between the Fourth Circuit and the Fifth Circuit on this question, and given that the Fourth Circuit panel has struck down a federal statute), assuming the federal government asks for Supreme Court review. If the Fourth Circuit does reverse this en banc, the Court may still hear the case (but would be much less likely to, if the Fourth and Fifth Circuits end up on the same side, upholding the federal statute).

NEXT: Viewpoint-Neutrality Mandates Must Themselves Be Viewpoint-Neutral

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  1. Now lower the drinking age. Make 18 year olds full citizens.

    1. Yes, there’s no basis in law for any right kicking in at a different age than any other right. But, of course, drinking isn’t a constitutional right…

      On the whole I agree: I became old enough to drink, twice, and found the whole thing absurd. But the argument for lowering the drinking age must be a matter of policy, not constitutional law. Unless it’s going to be the federal law you’re attacking, and I would not rank that one as a very good candidate for getting overturned, even though it IS a distinct over-reach.

      1. Except for the requirements for qualification for federal elected office… AFAIK there are no other age limitations in the Constitution, yet there are many in federal laws.

        1. The Age of Majority is yet another lawyer fiction that is devastating to our nation. The real age of adulthood is 14, according to biology, the world’s religions, and 10000 years of human civilization.

          The lawyer is keeping out superior people from competing with his loser clients. Watch the videos of teens doing parkour or of dancing. Their legs are superior. Their brains are just as superior as their legs, lawyer imbecile, by any measure you care to try. They are forced to sit in a babysitting service in high school, and are excluded from contributing to the economy. You filthy traitors to this country, you destroyed the most productive years of life.

          The lawyer filth uses the word, maturity. That does not come from the passage of time. It comes from experience, especially from suffering. Now, this odious profession wants criminal responsibility to come at 25, when frontal lobe myelinization ceases. It cases because you are deteriorating now, you morons.

          If you want to boost this economy to compete with the employers of the Dem Party, the tech billionaires, the press, the Chinese Commie Party, make 14 adulthood. That means end the joke that is American education. Go to whatever vocation you plan at 14. You can easily move every grade from preschool to 8th grade up in performance by 2 years if high school is so precious to you. Crush the educational law bar. It has destroyed our school attainment, our school discipline, the brain potential of our young people. They have to be crushed.

          Not only will it add millions of productive person years to the economy, they will be peak years, worth double those of people age 40. By that time, all bodily functions are cut in half. By age 60, they are cut by 90%. By age 70, they are cut by 95%. Naturally, the lawyer scumbag has orchestrated a legal system of governmental leadership of the nation, with governance by the elderly, people running on their remaining 5% the power at 14.

      2. If we have no right to drink alcohol, why did congress and the states bother to pass the 18th amendment instead of just passing a federal law?

        1. Because Congress does not have a general police power and such a law would have been then considered unconstitutional.

          This was still the Lochner era and thus before the New Deal court would reinterpret the Commerce Clause such as to allow Congress to bypass that limitation by using a boilerplate “hook”.

    2. Yes, but there is no constitutional right to drink alcohol, so the states have wide latitude in setting alcohol regulations.

      1. “there is no constitutional right to drink alcohol”

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        1. States have police powers to ban anyone from drinking.

          The current 21 age is due to federal pressure but the Supremes upheld the use of funding as a stick. South Dakota v. Dole, 483 U.S. 203 (1987)

        2. He’s not wrong, though: the power to regulate alcohol is reserved to the states. We fairly clearly don’t have a constitutional right to drink alcohol when almost half of Arkansas is dry.

      2. The 21st amendment more or less allowed the states to do what they want regarding alcohol. The 26th amendment ratified in 1971 lowered the voting age to 18, largely on proposition that if you could draft an 18 year old they should be able to vote.

        Congress passed the National Minimum Drinking Age Act in 1984, establishing 21 as the minimum legal purchase age backed by Mothers Against Drunk Driving, spiritual inheritors of the Temperance Movement lobbied hard for Congress to force states to raise the drinking age.

        I think one could argue that the 14th amendment requires that states permit 18 year olds to drink under the same conditions as other adults.

        No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.

        1. There’s a lot of Hot Takes from People Who Drank As Teenagers in favor of lowering the drinking age. But a lot of people would be killed by drunk drivers if we lowered the drinking age back down. And there’d probably be some increases in sexual assault as well.

          It really isn’t the end of the world if you have to wait until you are 21 to ingest a highly dangerous and addictive drug.

          1. When I was 18 we used to go to the bar and have a couple of beers. Now the young folks pool their money and buy a quarter barrel. Result? They get a bunch more beer to drink that what they could afford at a bar. Tell me again how this fixed drunk driving…

            1. That’s not true. Actually, most teenagers either don’t drink illegally or don’t drink very much.

              Part of the problem with this issue is that the people who are passionate about it were people who went out of their way to drink a lot as teenagers. You might call them the Brett Kavanaugh contingent. So they figure everyone else was the same way they did and they don’t realize all the social harm that is being done by people who are doing the same things they did.

              But yes, in fact, raising the drinking age saved a ton of lives and probably prevented a fair number of rapse.

              1. ‘ Actually, most teenagers either don’t drink illegally or don’t drink very much.’ And from where did you get this nugget? Because it seems like some endlessly repeated bullshit from people invested in this viewpoint, quite frankly.

                1. We should adopt the rational Italian approach. If you’re old enough to reach the bar, you’re old enough to drink.

                  1. That’s not only Italy. Many an American tourist visiting Caribbean islands have discovered that a Coke ordered at a beach bar is a rum and coke- why else would people be drinking it? And if a kid comes up over the bar…

                    One of my children’s teachers tells his students that story every year about how his kid got drunk…

          2. “It really isn’t the end of the world if you have to wait until you are 21 to ingest a highly dangerous and addictive drug.”

            How many kids wait until even age 18 to drink?

            Per CDC, “Most people younger than age 21 who drink alcohol report binge drinking, often consuming large amounts.”

            If 18-21 year olds could drink legally, binge drinking would likely decrease.

            1. There’s actually zero reason to think that. 18 year olds who love binge drinking, love binge drinking. They binge drink in places where it is legal. 21 year olds who love binge drinking also binge drink.

              Making it illegal deters a significant percentage of 18-20 year olds from drinking, by making it harder to get booze. The assumptions people make to avoid the implications of that are breathtaking.

              1. They binge drink because they know they’re getting away with something illegal. Apparently, you don’t understand young people.

                1. ‘Apparently, you don’t understand people’ would perhaps have been more succinct.

                2. They binge drink because alcohol is a highly dangerous and addictive drug which is especially dangerous when ingested by teenagers with underdeveloped decisionmaking.

              2. There’s actually a lot of reason to think that. Compare the US experience (where the drinking age is high and we have lots of binge drinking) with the experience in most of Europe (which has both lower drinking ages and far less binge drinking).

                Compare the adult experience during the Prohibition era where medical records show that binge drinking actually increased.

                Correlation is not proof of causation but when the correlation is this high, it’s certainly reason to think that there might be an element of causation.

                1. First of all, binge drinking is actually common in Europe.

                  https://pubmed.ncbi.nlm.nih.gov/18173097/

                  Second, even if it weren’t, the cultural history of binge drinking in the US would probably explain it. People engaged in benders in the 19th Century when there were few age limits on alcohol consumption. It’s one of the things that led to prohibition.

                  But keep on believing whatever you need to believe to justify whatever you did as a teenager.

              3. I had a foot in both generations: grew up in Penna. where the age was always 21 and we would go over the bridge to NJ where the age to drink was 18. My obervations are personal, but real.

                When drinking in bars in Friday night NJ, there were bouncers, bartenders, and adults from 18 to 80. You learned how to behave with alcohol because if you didn’t, you were out. You watched how mature people consume booze: measured, paced out with food and conversation. Drinking games in these bars and clubs were rare and frowned upon as kid stuff.

                When drinking in Pa the following Saturday night, it was kegs in a cemetery, no adults around, with grain alcohol, weird concoctions with slo-gin & vermouth, and drugs all mixed in. When you took 19-20 year olds out of bars you substituted in universal learned drinking habits that emphasized binging and “getting f**ked up” over social consumption in an adult manner.

              4. Making it illegal deters a significant percentage of 18-20 year olds from drinking, by making it harder to get booze.

                For sufficently minuscule values of “significant” and “harder,” I suppose. Some people live much more sheltered lives than others.

                1. Again, I’ve cited statistics upthread. This is all quite well known and well documented. Its just that people who drank as teenagers don’t want to believe it.

              5. Six years old is reasonable age. It is far from puberty and run away sex urges that Dilan is afraid of and far away from the age to get a driver’s license.

              6. I think there is a lot of data to show you are wrong.

                In much of Europe where there is no drinking age teenagers learn to drink responsibly, and they don’t feel an obligation to make up for lost time when they finally can drink.

                1. See upthread. Binge drinking is common in Europe.

          3. Mind your own damn business, Dilan — run your own damn life.

    3. “Now lower the drinking age. Make 18 year olds full citizens.”

      Lower the drinking age and raise the driving age.

      I’d rather have a 16 year old drink than drive a car. Less dangerous to themselves and others.

      1. let the insurance companies deal with 16 year old drivers drinking.

        1. And the mortuaries, and Social Security Administration, and all the other things that kick in when drunk drivers kill and maim folks. But by all means, lets just give children alcohol and guns and see what happens next.

    4. There are actually some reasonable arguments for restricting the drinking age based on biology.

      The restricted age should probably be below 18, though.

  2. The Rev. racks up another culture war victory! And on my own turf, too. (Not that it personally means much to me, in my 60’s.)

    OK, seriously, I’ve been amazed this law survived this long after Heller. I can’t think of another civil liberty which is similarly restricted.

    The dissent’s reasoning would justify extending the ban to all ages, essentially the dissent just doesn’t like the right to begin with.

    1. Actually for males the age to buy guns should be 27 because 18-26 is when males tend to fall into mental illness. And most of the mass shootings are perpetrated by mentally deranged suicidal young males…the worst mass shootings are generally perpetrated by older suicidal men and they kill more people because they are only suicidal and not mentally deranged. So generally more guns in the hands of law abiding citizens makes for a safer society but it unfortunately also leads to more of these copycat mass shooters that desire to go out in a “blaze of glory”.

      1. But as the majority points out, you’d be depriving everybody in an age range of the civil liberty, when only a tiny, tiny percentage would abuse it.

        1. So? You can always get an adult to give you a gun and then that adult would share responsibility for any crimes committed with the gun. In Texas the age to buy a handgun is 21…so it can be raised to 27.

          1. You could say “So?” to any civil liberties violation you cared to. The “So?” is that you’re violating civil liberties. Even if you don’t happen to mind THIS civil liberty being violated.

            1. Except mental illness among young men is a serious problem in America. So raising the age to 27 for males would pass strict scrutiny.

              1. Mental illness is higher among leftists, too, at least according to rates of reported diagnosis. Are you on board with outlawing Americans from buying guns unless they are good conservatives?

              2. It’s a big issue with liberal young men, and liberal young women for that matter.

              3. Would it really pass strict scrutiny? It’s narrowly tailored to meet a compelling government interest? Compelling interest, yes, narrowly tailored? Not even close. Abrogating millions of men’s core constitutional rights to hopefully prevent 1/10 of 1% who are mentally ill at risk for a mass shooting is not the narrowly tailored remedy that strict scrutiny calls for. Plus there would have to be reams of evidence showing it would significantly reduce such shootings.

          2. The federal law for an FFL to sell a handgun is 21. Private sales? Nope.

          3. If you’re old enough to shoot a man for America, you’re old enough to shoot a rat.

      2. You really should cite your sources. Young women are not known for being more stable during these years; if one looks at visits/prescriptions for behavioral health care based on sex and age, I suspect that your argument will collapse.

      3. I’m gonna sound like a right winger on this one, but if they can be trusted to carry a weapon in combat for the US military, there’s no reason why they shouldn’t have a right to keep and bear arms in the civilian context.

        1. Off the top of my head several of the mass shooters have been men that served in the military.

          1. Sure, but the vast majority of people who serve in the military are highly responsible with their weapons. And I would expect the rest of the 18-20 year old population would be the same way.

            1. Young males are a problem in every society…so young males are not only more likely to descend into mental illness but they are also more likely to be involved in criminal activity…it’s just a good idea to get guns out of the hands of criminals while getting them in the hands of law abiding citizens.

              1. This is not data or any more than an assertion based on your feelings about young men. Again, there is data showing that young men may commit crimes at a higher rate, but you are going to start stepping on metaphorical rakes, as the data will also show that race and class factor in. You appear to have retreated from your initial ridiculous claim to some degree; I still want to read through your sources. I haven’t looked up prescriptions or treatment data by sex and age, but stand by my observation that it is more likely to be women who are receiving care for a psychological disorder.

              2. I think the problem is young males with no access to sex with females… The so called incels here in the USA. And in India, China, and other countries that have practiced sex selection abortion for awhile, the fact that the females are missing. In Sharialand- a successful man with 2 wives means another man has none. If any significant portion of men have multiple wives, and even larger proportion have none.

        2. They should have the right to possess any firearm that they carried in the military.

    2. “The Rev. racks up another culture war victory!”

      This is the work of two Republican-nominated judges. I expect gun enthusiasts to continue to achieve incremental victories in this context (when drawing conservative judges). If Republican influence in installation of judges diminishes, however, as seems destined to occur, I expect the position of gun absolutists in American law to recede correspondingly.

      Enjoy it while you can, clingers.

      (There is a story in the Post or Times today about one gun nut who is peddling a handgun that looks as if it were made with Legos. How much longer do gun nuts expect educated, modern, successful, reasoning Americans to tolerate gun nuttery? I hope the predictable backlash does not interfere with the right to possess a reasonable firearm for self-defense in the home.)

      1. “How much longer do gun nuts expect educated, modern, successful, reasoning Americans to tolerate gun nuttery?”

        Given current sales figures, and the number of first time buyers? Not too much longer, your sort of gun nuttery is headed for the trash heap of history.

        1. Delusional clingers who predict right-wing victory in America, after a half-century and more of national improvement shaped against their wishes, with even more liberal-libertarian progress destined to develop for decades, are among my favorite culture war casualties.

          1. The only improvements in this area that have occurred have been against YOUR wishes, not mine. You apparently think that, if you win some battles, it means you’re destined to win them all sooner or later.

            Nope, this one you’re losing, conspicuously so, and I expect that, in the fullness of time, you’ll lose many others as well, though not by any means all.

            1. “You apparently think that, if you win some battles, it means you’re destined to win them all sooner or later.”

              The culture war is not over, but it has been settled. The better people have won. The losers will get what the victors permit. I doubt magnanimity on guns (or abortion) will be part of the package.

              1. Nope. When your side does the requisite amount of damage to the fabric of the country (which is happening now, and will continue), the pendulum will swing back. Because it has to, or the human race will die out.

                Keep sticking to your arrogance. It’ll get you through it all.

              2. If the way gun licensing has been going is any indication on who won the culture war, and how things are going to be settled, I have bad news for you:

                Permits have been going from “no issue” to “may issue” to “shall issue” to “Constitutional carry” for several decades now. There are still a few costal holdouts that don’t yet properly recognize our liberties as they should, but they’ll come around eventually (perhaps even by being forced to do so via the Courts).

                I’m so glad, though, that the better people are winning! After many decades of slavery, of Jim Crow, of eugenics, of censorship and outright attacks on our freedom, and of praising and emulating dictatorships around the world, we’re very long overdue to finally relegate the Democratic Party to the dustbin of history.

              3. Ahh, that explains why there hasn’t been any Federal gun control passed in 30 years, 50 state concealed carry, 18+ states with “Constitutional Carry” now and the 9 million new, first time legal gun owners, many in major Blue cities. Because you’re winning. By all means keep that kind of “winning” going.

      2. Come and take it, Rev.

  3. Good. Now the other districts

    1. This will mainly be the course in the can’t-keep-up circuits.

  4. “But the majority’s decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law. Nor is it consistent with the proper role of the federal judiciary in our democratic system.”

    The dissent sees the firearms regulation as a political question. IOW, there is no individual right to keep and bear arms according to the dissent, and so it ignores Heller and McDonald.

  5. Can anything good come from an opinion talking about the “gun lobby”? Or any lobby?

    1. It displays paranoia and ignorance, particularly wrt the gun lobby

    2. Libs think that absent a “lobby”, there would be no push for gun rights.

      Of course its a large number of voters, not the NRA, that powers the push.

      1. If anything, the NRA, rather than channeling that voting power, tends to diffuse it.

        Yeah, they assume ‘the gun lobby’ must be manufacturer astroturf, because so many of their own efforts are.

        1. Whenever anyone on the left says something about those not on the left, your first question should be: is this projection? Because it almost always turns out to be.

    3. Well, it shows how much contempt the particular jurist has for the Constitution–a useful warning.

    4. He’s clearly not a fan of the wrong people exercising their rights to petition the government. Pray you don’t become one of the wrong people with judges like that on the bench.

  6. Indeed, in a country that boasts a Congress, bench, bar, academy, and electorate that are all attentive to the prerogatives of gun owners, where many may conceal their weapons, carry them openly, or “stand their ground,” and where civilian gun ownership rates are second to none, the majority’s second-class status concern is simply surreal.

    Is this clown for real? Does he understand the difference between a Constitutional right, enforceable by a court, and the democratic process?

    By his logic, we have no need to enforce the First Amendment, since the country is replete with TV shows, radio shows, websites, blogs, podcassts, Twitter, etc., where all manner of opinions are expressed. So why bother enforcing the First Amendment? Surely the democratic process would not allow for restriction of this free-flow of opinion?

    1. Is media of any sort restricted by age, by the Constitution or federal law?

      Do we limit the reading of newspapers (which were available at the time of the signing of the Constitution) to those who the state deems ‘adult’?

      1. That’s also true. But I am making a more basic point. The Bill of Rights is meant to be a check on the democratic process. These are rights that Congress — the elected branch of government — cannot infringe. That is why many of them start “Congress shall make no law . . .” The point is, the people who enacted it did not fully trust Congress to respect their rights.

        When someone makes a claim under the Bill of Rights, he is essentially saying, “the democratic process failed to respect my rights. You, judge, have to enforce my rights against Congress.” This judge’s logic totally eviscerates that.

        This is Constitutional Law 101. Either this judge is a moron, or he is reasoning in bad faith.

        1. He is reasoning, as many judges do, that a right to keep and bear arms is, in his opinion, a bad idea, and thus the Constitution can’t really guarantee it, regardless of what words you might find there. Much of the judiciary approaches the 2nd amendment from this perspective, and refuse to treat gun ownership as a real right unless forced to.

          1. IOW, you pick the “reasoning in bad faith” choice. Can’t blame you.

            1. Yes, but that is what progressive / ruling class kritarchs do.

              1. That, and stomp right-wingers’ bigoted, stale preferences into irrelevance in the culture war.

                1. And that is ultimately why Progressives and the Ruling class must necessarily fail: they are enemies of freedom.

                  It’s why they fought so hard to preserve slavery, and failing that, fought so hard to create laws that would make it possible to re-enact slavery, at least in part, when it has otherwise been made illegal.

                  The fact that bigots in this comment section are so eager to gloat about being “betters” and forcing the “lesser people” to do their will is merely a reminder that America is full of people who would reinstate slavery if given the opportunity (and boy, do they look forward to that opportunity!)!

                2. In your febrile fantasies, you fat mouthed coward.

          2. If by ‘he’ you mean me, you are 100% wrong. My personal belief is that ‘shall not be infringed’ means SHALL NOT BE INFRINGED, for any arm – up to and including nuclear weapons…If someone can AFFORD a nuclear weapon (and the acquisition and maintenance costs are quite high), what makes anyone believe they would not find a way now to get one?

            We do not limit any other right by age. None at all, except the dubious right of running for federal office.

            And the Constitution does not grant rights, it recognizes that they exist, independently of government. After all the only really important words in the Constitution are the first three words in the Bill of Rights.

            1. “If by ‘he’ you mean me, ”

              Unless “Flight-ER-Doc” is actually Judge Wynn in the 4th circuit court, no, by “he”, we do not mean you. We were referring to the dissenting judge in this case.

              1. My apologies then

            2. ” for any arm – up to and including nuclear weapons…”
              Now you showed that you. are crazy. The comment is not even good sarcasm.

              “If someone can AFFORD a nuclear weapon (and the acquisition and maintenance costs are quite high), what makes anyone believe they would not find a way now to get one? ”
              Fortunately that is far from true. And yes, I have heard about Pakistan and North Korea.

          3. It’s really dumb to have a right to own something when a nuclear missile is clearly an “arm”. That’s why the Framers had the RKBA associated with the state militias.

            1. Not at all true, as Heller explained.

              1. If you even feel like taking this argument seriously, the easiest way to explain it is with the example of ammunition. The 2nd clearly allows people to possess ammo for their guns. However, it is quite rational to have restrictions that prevent people from holding 2 tons of ammo in the 2nd floor apartment of the 30 story building in an urban area.
                Same thing applies to Tannerite, or propane, or fuel oil, or any number of other things that are entirely legal to own.

            2. The right to bear arms was NOT associated with “state militias”. As pointed out in several places, the “militia” encompasses nearly every male at one point or another. Currently, under federal law, between 17 and 45. In some states the ages vary somewhat, and some states have specifically included females. (Federal law includes SOME females.) And in the early days, most militias were locally formed, with no state supervision. Many elected their officers. It’s how Abe Lincoln became a Captain in the militia- he was elected Captain of his militia company. Even as late as the Civil War, militias were formed because some activist citizen enlisted men to form one, and offered service to the government- both North and South. In Alabama there was Hardaway’s Alabama Artillery Battery. In California, you had Captain Ingram’s Partisan Rangers on the Confederate side, Colorado, McLain’s Independent Light Artillery Battery on the Union side, and many more examples. Then- you had Indian units on BOTH sides of the war. Want to argue they were state militia? I’m not even sure how you would classify them.

      2. Note also this line:

        As other courts have recognized, while there are dangers inherent in other constitutionally protected rights—like the rights to speak and assemble—the Second Amendment alone protects a direct and lethal right to endanger oneself and others

        So there are “dangers” in allowing people to speak and assemble freely, just not as dangerous as the Second Amendment rights. Here we see the germ of cutting back First Amendment rights, too.

        1. The line is also incorrect. There are many unconstitutional searches and seizures that would protect us from evildoers but the Fourth Amendment protects our right to be secure in our “persons, houses, papers, and effects.”

          1. I see no clause in the Constitution that assures an individuals safety, so protecting individuals is not a federal obligation or responsibility. Someone’s spreading ‘dangerous words’? Good!

        2. For that matter, keeping and bearing arms is not a “direct and lethal” danger to oneself or others. Using a firearm can be. Cleaning it can be. But if we consider unsafe or intemperate uses of items, unsafe or intemperate use of an automobile is equally dangerous — witness vehicular terror attacks in Europe in the rare cases where neither firearm nor knife could be procured.

          1. Hammers and fists are responsible for more homicides than guns

            1. Long guns, not all guns.

  7. I don’t think there is any doubt the original meaning of the constitution fully protected 18 year olds right to keep and bear arms.

    But there were many other rights that were denied to 18 year olds, such as the right to vote (until the 26th amendment), fully inherit, or even the right to contract.

    I hope nothing in this decision calls into question my right to indenture my son into an apprenticeship until his 21st birthday.

    1. Yeah, that would be the 13th amendment, which has been interpreted to prohibit indentured servitude, except to the government.

    2. What kind of apprenticeship did you have in mind?

      Come to think of it, and apprenticeship in, say, computer coding, might not be a bad idea.

      1. I used to tell my son that you could enlist in the Marines at 17, and that I could take him down to the recruiters office and sign all the paperwork work for him.

        Alas his bullshit detector was too acute by that age for him to believe me.

    3. such as the right to vote (until the 26th amendment)

      That “right” is a new invention. It was always considered a privilege administered by state and local elected officials.

  8. Under common law wasn’t the legal age of majority 21? I doubt the Founders thought they were extending rights to those below that…

    1. No. As the opinion correctly notes, at 18 years at the founding were *required* to be members of the militia and buy weapons. See militia act of 1792.

      I always find it ironic that many people pointed to the first federal mandate in history to support Obamacare (Congress in 1792 required people to buy weapons), then turn around and deny it.

    2. That was for making binding contracts. It was typically earlier for such things as marriage or military service.

      You’d be hard put to justify making the age at which you get the right to keep and bear arms higher than the age at which you can be drafted, which has been 18 for a long while.

      1. um, marriage is kind of a binding contract.

        1. If we’re talking historically, marriage is a kind of binding sacrament.

          Viewing it as just another contract is a more modern perspective.

          1. Well before people married for love, marriages were a contract / alliance between families. In China there is still an active marriage market: https://en.wikipedia.org/wiki/Shanghai_marriage_market

            I think marriage as a “sacrament.” is a Christian-centric viewpoint.

            1. Good thing we don’t live in the United States of China, eh.

              And I am pretty sure that in the late 1700s one could correctly describe the greater American population as having a “Christian-centric viewpoint”.

            2. And it’s post Rome Christian-centric as prior to that Christians weren’t involved in things like marriage. The history of marriage in the Western tradition started with government contracts primarily defining which children of which woman inherited the wealth.

      2. 14 for marriage, IIRC

  9. I’m for more gun control procedures (mandatory registration, training, etc.), but this is the proper constitutionally legal decision and the dissent is weak.

    1. Yeah, the dissent is one of the weakest I’ve seen in a while.

  10. My copy of the BOR says nothing about the 2nd Amendment being “exceptional”. Where did he get his copy from?

    1. Same place his food goes when he is done digesting it.

  11. I think this is the right decision, although it’s not entirely unreasonable to treat less mature 18 year olds differently from 21 year olds. Insurance companies charge 18 year old drivers and 21 year old drivers different premiums because the 18 year olds are a greater actuarial risk. A lot of car rental companies won’t even rent to drivers under 25. In point of fact, an 18 year old is more likely to do something stupid than a 21 year old, and some people will probably die because of this decision.

    The question is whether that’s enough to justify the law as drafted. I agree that it probably isn’t.

    1. For the most part businesses can do whatever they want. That is not a reason to run government by those standards.

      1. The point is, though, that that standard is far from unreasonable.

        1. That distinction is only really relevant for rational basis review.

    2. There’s so much wrong with this analogy…. Let’s start with a few options.

      1. Car insurance rates aren’t constitutional rights. There are amazingly critical differences….Private versus public, rights versus rates, and more.

      2. If they were, some things to consider.
      A. Car insurance rates differ based on age. Both very young AND very old people are “discriminated” against. Women are “discriminated” against in middle and old age. And of course, there are pretty dramatic discriminations based on where people live…including minority zip codes.

      3. Stretching the car insurance analogy to gun laws, the most “logical” item would be to ban African American males from buying guns.

      1. But none of those relate to the specific point I was making, which is that there is good reason to treat 18 year olds differently than 21 year olds.

    3. “In point of fact, an 18 year old is more likely to do something stupid than a 21 year old, and some people will probably die because of this decision.”

      It should be pointed out that every time gun laws are loosened, we are promised “blood in the streets” and “people will die because of this”, yet more often than not, there are less deaths that can be attributed to the expansion of gun rights — and what’s more, whether deaths increase or decrease, it’s far more often than not that they match general geographic criminal trends.

      I sincerely doubt people are going to die because of this decision, particularly when most of the people who murder others with guns, are already prohibited from having those guns in multiple ways.

      Thus, my prediction is this: law-abiding people will carry guns a little more, but won’t murder anyone because of this, while people who would have broken the law anyway will continue to do so as well, and statistically it will be very difficult to tell the difference between the “before” and “after”.

  12. The dissent is silly and weak, but at least its honest.

  13. “but would be much less likely to, if the Fourth and Fifth Circuits end up on the same side, upholding the federal statute”

    How much might this influence the decision to rehear en banc?

    1. Zero. The ruling on the petition for rehearing en banc will be merely a virtue signaling exercise.

  14. before expressing surprise at the vapid, anti-Constitutional tenor of the dissent, remember that it was written by an Obama appointee. Suddenly, all is reveraled.

    1. Surprise, surprise. We dodged a bullet when Garland was passed over by the Senate.

  15. This case will go en banc, if only to rewrite the weak dissent. Most likely they will re-write the opinion to be in line with what the 5th said, essentially daring the SC to take up the case.

    1. It would be fascinating to observe how a 13-member Supreme Court might address this issue.

      I predict at least a few of the dissents would be as seething and bitter as they would be inconsequential and reliant on citations to Prof. Volokh’s work.

      1. That’s the Supreme Court of what? Fantasy Island?

        1. Hopefully the Chief Justice of the Supreme Court of Fantasy Island, Roarke, will allow a live feed!

          1. If that’s your wish!

      2. Well, that’s one way to spark a Civil War.

        I wonder which side will have an easier time getting the upper hand if that’s what we end up with … the side that respects gun rights and encourages everyone to learn how to shoot, or the side that has done their best to keep guns out of their hands ….

        “Ah, but the Government has the military!” I can easily imagine you responding.

        To which I have to wonder … gee, I wonder which side the military will side with, the side that respects the military … or the side that denigrates and mocks the military every chance they get ….

        1. Fewer than 2 million in the US Military, including active duty, reserve components, the Space Force and Coast Guard, even the Civil Air Patrol… Fewer than another 800,000 sworn law enforcement officers at all levels too – and there is a significant overlap between civilian law enforcement and military reserves.

          There are in excess of 19 million military vets in the US. And right now, with the military purging the ‘non-woke’, the most tactically proficient are being forced to go back home…

          Americans own in excess of 400-million firearms. Americans BUY in excess of two billion rounds of ammunition every year.

          I don’t think the correlation of forces will be favorable to any administration in a civil war.

          1. On my last deployment we had this discussion, the other guy said, “the army has tanks and drones, you’re not going to fight them with your AR-15 or AK-47!”

            I said, “The Iraqis were doing a pretty good job.”

            He shut up after that.

            If illiterate weekend warrior dirt farmers with Grandpa’s 40 year old AK-47 and fertilizer bombs like the Taliban can beat the United States army, it’s not going to Fair much better against their own people when half of their own soldiers will defect.

          2. All of that is true

            The question I have. Will the civilian control of the military use the same rules of engagement the military is using across the globe right now? The US loses these military engagements because RoE prevent them from unleashing the killing power they have at their disposal.
            Will the civilian control of the military order troops to kill civilians? If ordered, will troops take those shots?

      3. I’m sure the 15-member court the Republicans would create 6 years later would reverse whatever the 13 member supreme Court decided.

  16. “If the Fourth Circuit doesn’t reverse this en banc, it seems very likely that the Supreme Court will agree to hear the case (given the disagreement between the Fourth Circuit and the Fifth Circuit on this question, and given that the Fourth Circuit panel has struck down a federal statute), assuming the federal government asks for Supreme Court review. If the Fourth Circuit does reverse this en banc, the Court may still hear the case (but would be much less likely to, if the Fourth and Fifth Circuits end up on the same side, upholding the federal statute).”

    It may make sense to hear the case. But do the three swing Justices have the stomach to address the subject? They didn’t have it to address the argument that Bush v Gore required that the changes made for voting by members of the state executive and judicial branches were illegitimate. How do they get away with Heller/McDonald increased scrutiny, while calling the broad brush of banning ALL 18-20 year olds from these weapons (unless they are In the military or police) as closely tailored? And how do they overcome the 1795 law requiring 18 year olds to belong to a militia and to possess te weapons necessary for their membership.

    1. They do what all judges do from time to time. Ignore inconvenient data.

  17. I’m certainly not confident the Supreme court would feel obligated to resolve a circuit split on this point. They actually have a track record of ignoring circuit splits regarding this particular amendment, not resolving them.

  18. In a new world where liberals feel harmed and microagressed for merely using words, it’s hard to take “the Second Amendment is exceptional not because it is uniquely oppressed or imperiled, but rather because it is singularly capable of causing harm” seriously.

  19. 18? Should be 13. That’s when boys start having these militia fantasies, which unfortunately many of them never outgrow.

    1. 13? 11 is when people start muting your posts.

    2. So you’re in favor of 13-year-olds being able to buy guns too? Good to know!

      While we’re at it, we should bring back high school rifle teams, and make it legal again for young men to carry guns on the New York subway system (and pretty much everywhere else).

  20. Those over 18 were universally required to be part of the militia near the ratification, proving that they were considered part of “the people” who enjoyed Second Amendment rights,

    Completely true. Also true- from 10 U.S. Code § 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….

    So they’re still members if the militia, along with then 17 year old Kyle Rittenhouse.

  21. Today, my good colleagues in the majority break new ground by invalidating a modest and long-established effort to control gun violence.

    I’m sorry, but I see nowhere in the constitution where it says it’s OK for judges to create laws “modest efforts to control gun violence.”

    But the majority’s decision to grant the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago is not compelled by law.

    The “gun lobby”? Another example of a judge deciding that his bugaboos have more weight than the guiding document of the country’s legal system.

    Nor is it consistent with the proper role of the federal judiciary in our democratic system.

    Ironic statement. It certainly isn’t the proper role of the federal judiciary to decide that a majority holds more sway than actual enumerated rights in the constitution.

    Some of the commenters here call him a nut, but I see where DaivdBehar’s loathing of the legal system comes from. The above is grist for that mill.

  22. Nope. If 18-21 year olds want to have a gun, they cannot pass a background check and buy a gun legally. No way…

    1. under federal law an 18-21 year old cannot buy a handgun from an FFL (except in the 4th circuit, now). A long gun? No problem. A non-FFL purchase of a handgun (where legal)? No problem.

  23. A car in the hands of an 18 year old is a lot more dangerous than a gun.

  24. “gun violence”….yep those darn guns becoming all sentient, walking around, getting drunk and killing folks..

    Oh and Corn Pop…given what the Vietcong and Taliban are doing, semiautomatics can sure beat F15’s, tanks, artillery, and nukes…ha ha

  25. “stand by my observation that it is more likely to be women who are receiving care for a psychological disorder.”

    you may also want to review the ratio of males to females who initiate domestic violence.

    Not suffer or report it, but initiate it.

  26. “to grant the gun lobby a victory” – wow that’s an obnoxious line for judges.

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