11th Circuit Will Review En Banc Whether Second Amendment Protects 18-to-20-Year-Olds

Yesterday, the Eleventh Circuit granted en banc rehearing on this issue in NRA v. Bondi. For more on the underlying legal issue, see Stephen Halbrook's April post, which mentions the panel opinion (which has now been vacated) as well as some other cases.

Comments

[Dr. Ed 2]

I'd like to see a challenge to the 21-year-old drinking age as well.

Adult is adult....

[ThePublius]

I agree, and for everything, including tobacco. And states and cities can't raise the age, for any reason. Likewise, they shouldn't be allowed to have those under 18 vote.

If someone joins the military at 17 they should be treated as 18 in all aspects.

[Michael P]

What would be the basis for such a challenge? There's no alcohol equivalent to the Second Amendment. Section 2 of the 21st Amendment exploring allows state regulation of the transportation, importation, delivery and use of "intoxicating liquors".

[Mr. Bumble]

Everyone's favorite catch all amendment, the 14th.

[Brett Bellmore]

Right, alcohol regulation is, explicitly, a state matter, the only federal involvement in the topic is that it's actually constitutionally mandated that importation into a state contrary to its laws be federally illegal.

[Brett Bellmore]

"We begin by explaining why historical sources from the Reconstruction Era are more probative of the Second Amendment's scope than those from the Founding Era. In short, because the Fourteenth Amendment is what caused the Second Amendment to apply to the States, the Reconstruction Era understanding of the right to bear arms—that is, the understanding that prevailed when the States adopted the Fourteenth Amendment—is what matters."

I see an interesting problem with this approach.

We want to know what the 2nd amendment was understood to mean at the time. So we look to conduct at the time.

But, when we look to conduct by the states, immediately prior to ratification, we are looking at conduct by states that were not then bound by the 2nd amendment. So that whatever they thought it to mean, they were not then obligated to conform their conduct to that meaning.

Post ratification history, prior to the Slaughterhouse case, might be indicative, because for a short while there the states were officially bound to conform to it. Of course, half those states were resisting its application, and the Court soon closed the door on incorporation for over a century.

In any event, there are two questions here: The extent of the right, and who enjoys it. The present case relates more to that latter.

[MaverickNH]

Interesting point. Would that mean that any evidence suggesting state support of the right to keep a bear arms prior to ratification is not relevant as well?

[Lee Moore]

I think the problem is more fundamental than that.

Article 19 of the Federal Constitution of Ruritania (adopted 1537) provides that the Federal Ruritanian government may not forbid the riding of horses. (But this restriction does not constrain Ruritanian states.)

In 1537, “horses” unambiguously meant animals of the subspecies “equus ferus caballus.” In 1537 camels were known in Ruritania and they were called “camels.”

After 1537, Ruritanian states variously forbade the riding of horses, camels, or both (or neither). The feds did squat. In the 1680s, the Great Ruritanian horse plague struck and within 10 years had wiped out the entire horse population of Ruritania. So people rode camels instead, and several Ruritanian states abolished their restrictions on camel riding.

Over the centuries, the word “camel” became archaic and then entirely obsolete as people started referring to the-animals-formerly-known-as-camels as “horses.” By 2023, the usage was universal. Those bad tempered just about rideable humpy critturs were called “horses.”

And then the federal Article 19 “horse right” was incorporated against the States by a constitutional amendment stating “The constitutional rights secured by Article 11 to 23 shall not be infringed by any State.”

So the question is whether those Ruritanian states which still have prohibitions on riding horses, or riding camels, are in trouble.

And the answer is that they aren’t. Because what we need to construe by reference to the 2023 meaning is “The constitutional rights secured by Article 11 to 23 shall not be infringed by any State.” The word “horse” does not get a mention. We certainly need to worry about the 2023 meaning of the words “constitutional right”, but 2023 meanings tell us nothing about what that right is. For that we need to consult the 1537 meaning of the words in Article 19, and in particular the word “horse.”

And that meant those animals that are now, in 2023, extinct. The fact that other rideable animals are now, in 2023, called “horse” is perfectly irrelevant to what Article 19 meant in 1537.

Thus state statutes that prohibit the riding of camels are constitutional, even after the 2023 amendment, because what the states prohibit is something other than the riding of the animals covered by the 1537 meaning of “horses.” And if they still have statutes forbidding the riding of horses, they may now be formally unconstitutional, but no one is riding (1537 meaning) “horses” these days, because there aren’t any.

So, the 2023 constitutional amendment needs to be read in accordance with its 2023 meaning. But since its meaning says no more than that the 1537 right now applies against the States, we have to go back to our 1537 dictionaries to discover what the right is, by reference to the 1537 meaning of “horse.” The 2023 dictionary meaning of “horse” is irrelevant. The word doesn’t appear in the 2023 amendment.

So the Appeal Court has got itself confused (probably deliberately) into imagining that the requirement to construe the meaning of the words in the 14th Amendment by reference to their meaning at the time of the adoption of the 14th Amendment requires them to pretend that the original rights were repealed and reenacted at that time. They weren’t, and so they need to be given their original meanings as at the original adoption.

[hoppy025]

I'm sure they'll find some way to twist Bruen into saying that the 2nd Amendment allows this type of regulation.

Yet, if someone like the Rev Kirkland is told he has to wear a condom to avoid spreading HIV to the boys he grooms, that's an affront to his "liberty."

[Estragon]

Seek help

[tkamenick]

For so long as 18 year-olds can be drafted - or are even permitted in the military - it is wholly irrational to restrict them from guns.

[Mr. Bumble]

Well there is no draft but contrary to the line in Summer Time Blues "I'd like to help you son but you're too young to vote", that is no longer true.
If they're old enough to participate in democracy by voting they should be old enough to do anything other adults are permitted to do.

[hoppy025]

Democrats support them voting at this age because they generally vote for them. They've been brainwashed by the media into thinking that the most important rights are abortion and transgender normalization.

[Bruce Hayden]

Technically though 18 year old cis males are still required to register for the Draft. Not sure whether it covers trans males or females, or even the non-binary. If I were the courts, I would make the law applicable based on the presence of at least one Y chromosome.

[Mr. Bumble]

Given the current gender confusion and claims about sex/gender you raise an interesting point; however, the simple solution is to require every 18 year old to register.

[Davy C]

Or better yet, none. What does registration even do?

[jimc5499]

If I remember correctly the Federal Government forced the States to pass the 21 drinking age by threatening to withhold Federal funds if they didn't comply.

[Michael Ejercito]

South Dakota v. Dole

[BravoCharlieDelta]

Didn't thus sort of arm twisting get tossed with the Sanctuary City cases?

[jimc5499]

Nobody's challenged it for the 21 drinking age.
I'm sick and tire of the whole "responsibility" schtick. It" a bullshit argument that's lost it's appeal. When you have a push to lower the voting age to 16, the ability to decide on an abortion at 13 and the ability to change your "gender" at age 5. It's a moot point. I was a Second Class Petty Officer in the Navy two months before I turned 21 and was responsible for all that position entailed including working with "special weapons" It's a bullshit standard.

[Kazinski]

I’m open to a tradition and history argument from both sides.

Before the civil war 18 year olds did not have full civil rights, couldn’t contract in many states and couldn’t vote.

The fact that they could make good soldiers, under adult supervision, isn’t dispositive. Could an 18 year old own a gun before 21 without his parents permission?

Famously Lincoln’s father took all of his wages until Lincoln was 21. Was that the law or just a family arrangement?

If under tradition or history if an 18 year old couldn’t contract, can they execute a contract to buy a gun now? And buying a gun is more than just a purpose, you are signing forms and attesting to facts.

[Goju]

I the case of the defendant in the Kenosha case, the judge ruled that he could legally possess a firearm that he could not himself purchase. The judge also ruled that it was not illegal for the defendant to have given the money to someone else - who was legally able - to have purchased the gun for the defendant.

[Neugierige]

That was a question of interpreting a state law.

[Goju]

Wouldn't the judge's interpretation have been based on USSC rulings?

[Kazinski]

Probably not. The Supreme Court has only ruled on a handful of 2nd amendment cases in 230 years since ratification of the 2nd.

[Bruce Hayden]

Very definitely a family arrangement. Many males, in their later teens left home to make their way in the world then, and even to this day. Throughout the Midwest, and west, families were typically large, esp on the farms, and very often couldn’t afford all of the boys coming of age, as well as their eventual wives and kids. So, the younger ones, the ones who weren’t going to inherit, were often effectively pushed out.

[hoppy025]

Liberals' idea of a "family" is a transgender "woman" who still has a penis shooting off into a woman's private parts and breeding a leftist monster.

[Bruce Hayden]

My problem is that I grew up, and spent most of my life, in what was, at the time of adoption of the 14th Amdt, the frontier, or beyond. Of course, there, 18 year olds (or even younger) very often had guns, when they left home, which many did. Sure, in the big cities, there may have been some gun control, but not on the farms, ranches, by the mines, in small towns, etc, west of the Appalachians. My wife’s mother was a crack shot by the time she was 18, and the 4 kids my wife raised were good shots by the time they were teenagers, as was she. My next brother has the 410 shotgun my father got as a teenager, for shooting jackrabbits when visiting his uncles in OK. That was before he turned 18, because a year or so after that age, the Army issued him an M1 Carbine, and he rated Expert on several weapons. Very simply, in rural America, most everyone, at least from teenagers, on up, could shoot, and often had a firearm when they left home. It’s still that way in much or rural America.

[Goju]

Back in the early 60s, the brother of a friend bought a .22 revolver from Sears. He was 14 IIRC. Sent them a check from his own bank account, and Sears sent him the gun.

[Armchair Lawyer]

There are very significant concerns with age-restricting Constitutional rights for people who have hit their majority. Because that's what this is.

On the simple level, it can be argued that if you're legally an adult, and you can vote and be drafted, you should have the rest of your constitutional rights as well. Seems dumb to say "well, we can draft you, but you can't own a gun"

On a more complicated level, there are major questions about age-restrictions beyond simple adulthood on Constitutional rights. Let's pretend the courts find it valid to restrict firearm ownership by those between 18 and 21, for whatever reason. Why stop there though? Should people over the age of 80 really have the capability to own a firearm? Shouldn't that be restricted too? Constitutionally, there's no real difference between banning firearm ownership by a 20 year old versus an 85 year old.

And where one Constitutional right goes, others follow. Minors don't have the right to vote. Perhaps those over 80 should have their right to vote removed as well.

[Jason Cavanaugh]

"Constitutionally, there’s no real difference between banning firearm ownership by a 20 year old versus an 85 year old."

One of those examples has reached the age of majority, and the other, under the law, has not.

[Armchair Lawyer]

According to which country's laws?

In the vast majority of the US, the 20 year old has hit their age of majority.

[Jason Cavanaugh]

According to the law which brought about the lawsuit you're talking about....

Where in the Constitution is an age of majority stated? If it is not, then why would such a determination not be within the State's power?

[Kazinski]

You are overthinking it, the text is plain, and there is no tradition or history of restricting the rights of adults absent a showing of incompetence.

There is a lot of history about restricting 18-21 year olds from full adulthood.

[Brett Bellmore]

The actual argument would be that there was no tradition of restricting the rights of adults absent a showing of incompetence, and 18 year olds, having been constitutionally guaranteed the right to vote, are now "adults".

[Kazinski]

They have a constitutional right to drink now too?

Congress knows how to say right to vote, and right to keep and bear arms, they said one not the other.

[Brett Bellmore]

Drinking is a constitutional right, now? When did that happen?

[Armchair Lawyer]

"There is a lot of history about restricting 18-21 year olds from full adulthood."

There is, but in the US currently, the vast majority of the US puts full adulthood at 18 years of age. Historically, that has been at a different age.

If you want to change the age of majority...including voting rights...that's a different topic.

But picking and choosing which constitutional rights are done by age just leads to a patchwork nonsense.

[Alpheus W Drinkwater]

I like this argument. Do you also endorse not following the new "history and tradition" jurisprudence in other areas, like abortion?

[Kazinski]

History and tradition can be hard.

In Duncan V Bonta the CA magazine limit case that was GVR’d back to the district court after Bruen, Judge Benitez ordered the AG to provide what he thought was THE best historical analog to a limiting magazines to 10 rounds:

The AG’s response: “Among the analogues the Attorney General has identified, New York’s 1784 gunpowder storage law [12]2 is one among the laws that are particularly analogous to “a limit on an amount of ammunition” that may be kept in a firearm magazine, Dkt. 140.3 In addition to gunpowder storage laws, historical restrictions on the carrying of certain concealable weapons—such as New Jersey’s 1686 law [6]”.

“In 1784, the New York Legislature enacted a prohibition on any “persons whatsoever” from “keep[ing] any quantity of gun powder exceeding twenty-eight pounds weight, in any one place” in New York City, except for a designated “public magazine,” and that any gunpowder lawfully possessed “shall be separated [sic] into four stone jugs or tine[sic] canisters, which shall not contain more than seven pounds each.”

Each musket shot could use up to .9 ounces. So when storing black powder, each container of tin or a stone jar was limited to 124 rounds of gunpowder, and no more than 4 containers were allowed to be stored in one place, or 500 rounds.

That’s their best analogy for a “magazine” limit.
https://www.courtlistener.com/docket/6082773/duncan-v-becerra/

[The Margrave of Azilia]

I presume that these laws were less about "stopping gun violence," and more about "not having huge explosions from improperly-stored gunpowder."

[ObviouslyNotSpam]

Was the AG genuinely confused about those two meanings of the word, "magazine"?

[Brett Bellmore]

Maybe, many gun controllers are aggressively ignorant about guns as a matter of pride, or maybe moral conviction; A lot of them think knowing the details about guns is morally suspect.

But it probably was the best he had, too.

[grb]

Hell, I was in the Army National Guard for six years, proved an above average shot with an M-16, qualified expert on an M-203 grenade launcher, and had a pleasant time strafing pickup truck shells on the M-60 machine gun range. I didn’t get to throw a live grenade though; I had KP that day.

Yet even I am proudly ignorant on this whole “magazine” brouhaha. Its not like I couldn’t learn – that’s what the internet is for, right? – but it’s too much fun watching gun nutters bristle and preen over ownership of their precious terms.

[Toranth]

Grb is proud of his ignorance, when commenting on an argument based entirely on the definitions of certain specific terms.

What is it, exactly, you say you are doing here?

[grb]

Yep. I had my popcorn out and was waiting for a nutter to sputter, bristle and preen over his precious gun definitions......

[Toranth]

Your participation in this thread is simply to be a troll?
You have nothing better to do than provoke people and be a general, all-round asshole?

How sad.

[Brett Bellmore]

The brouhaha is about using historical restrictions on powder magazines, which is to say, buildings in which large amounts of explosives are stored, as a historical basis for magazine capacity limits, which is to say, firearms accessories that hold ammo to feed it into the gun.

On the basis of them both using the word “magazine”, of course.

This is a lot more serious than the usual mocking people for confusing "clips" and "magazines", which is just pendantic.

[Kazinski]

No, they aren't THAT stupid, they do note that magazines "which at the founding were storehouses used for storing gunpowder."

But they say pretty stupid things like: "It should be noted that New York’s law actually imposed a greater burden than Section 32310 because it took significantly more time to reload founding-era muskets".

No, the NY law if anything increased reloading time, because if your powder horn was empty it was easier to go grab a 7lbs tin of powder to refill your powder horn than a 50lb keg of powder. But really it was irrelevant in any other scenario than a battle.

The NY law could really only be analogized to warehouse regulations for storing hazardous materials.

[The Margrave of Azilia]

If at all possible, I’d like to see an interpretation which doesn’t require rummaging through old archives and newspapers in search of enlightenment.

At the same time, I’d like to see an interpretation which doesn’t involve bypassing the Article V amendment process – why have such a process if the courts can just say “screw it, the Constitution’s evolved”?

So I’d look at the whole 2nd amendment, including the militia clause. For the meaning of “well-regulated militia,” I wouldn’t blow the dust off of old Congressional debates, but look to the militia clauses in the main body of the Constitution. There we see a militia run cooperatively by the states and feds – including arming and training them and sending them off “to execute the Laws of the Union, suppress Insurrections and repel Invasions” (I’d presume that “Laws of the Union” include declarations of war against foreign states, which are listed among Congress’ legislative powers).

But from the 2nd Amendment, we can figure out that postponing someone’s firearms experience until he has militia training would not be good for the national security. Sure, get them standard militia firearms, but don’t use prohibitory laws to make this their first time using guns.

Traditionally women couldn’t be in the militia, but if that’s ever been used as an excuse to disarm women I haven’t heard of it – not even during the bad old days when women were so woefully oppressed.

And if you can’t disarm women simply because they can’t serve in the militia, by analogy you can’t disarm minors, either.

You have a community whose members know how to handle guns, and you summon those of them who are subject to militia service, hoping they’ve benefited from the community’s existing knowledge of firearms.

And it says arming the militia, not disarming them.

As far as abuses of the right to bear arms, I suppose that would mean things like murder, assault with a deadly weapon, going armed to the terror of the public, and the like.

If you run around threatening to use your gun against someone, the old peace bond used to be the way to deal with them, if they had yet to commit an overt act. I don't know if that would work today, or if its analogous processes would work, but I'm just throwing it out there.

[Sarcastr0]

Self-titled originalists arguing with each other about method, their own bits of history they like, etc. should tell them something.

But it won't.

[Kazinski]

We aren't arguing about method, the supreme court settled that.

[ReaderY]

If constitutional rights normally associated with “the people” as distinct from “persons” apply to 18-20 year olds by the structure of the constitution or some such things, why was there a completely superfluous, totally unnecessary, completely ignorable, nonsense amendment that falsely proported to give them to them?

How can the written text of the constitution contain such a fraud?

[ReaderY]

The 26th Amendment, ratified in 1971, gave voting rights to 18 year olds. Voting rights only, nothing else.

[ReaderY]

Also, if the framers of the Constitution really intended to make a right to keep and bear arms a fundamental right applicable to all persons, why did they make it a right of “the people, “ which is a limited class of persons?

Those below the age of majority have not generally been thought part of “the people.” And there’s no historical consensus for an age of majority at 18. If history has any relevance to the 2nd Amendment, wnd Bruin says it does, the age of majority was 21 for nearly all purposes until well into the 20th century.

One follows history when it expands gun rights, but flatly ignores it whenever it narrows them? That’s hardly a defensible jurisprudence.

[Brett Bellmore]

Because prior to the Court saying of the 14th amendment, "Just kidding!", the states and lower courts were actually falling into line?