Guns In The Hands Of Children

Many would prefer that gun not be allowed in the hands of anyone, but certainly not in the hands of young people between the ages of 18 and 20, a long-standing restriction on the right to purchase firearms. Judge Robert Payne in the Eastern District of Virginia, however, held that such a restriction was unconstitutional.

The rationale, under other circumstances, might well be one that received full-throated support from progressives, holding that 18 to 20-year-olds are “people” as referred to in the Second Amendment. After all, are they not “people” when it comes to voting? Are they not “people” when it comes to free speech, search and seizure and the right to remain silent? Surely, we want them to be “people” under the law when it comes to the plethora of rights protected by the Constitution otherwise. If so, then aren’t they “people” for the Second Amendment as well?

The government argued that 18-to-20-year-old Americans are not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment. When that amendment was ratified in 1791, the Justice Department noted, the age of majority was 21.

Given the Bruen reference to what the state of the law was at the time of enactment, wouldn’t the age of majority in 1791 carry great weight?

The Supreme Court has said “the people” protected by the Second Amendment, like “the people” protected by the First and Fourth Amendments, “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” The government therefore was arguing that 18-to-20-year-olds, who today can vote and are treated as adults in most other respects, are not part of “the political community.”

Since then, “membership in the political community has grown to include numerous groups—women, minorities, and minors—that were denied inclusion at the time of the Founding,” Payne writes. “If the Court were to accept the Government’s position of limiting the definition of ‘the people’ to those understood to fall within it at the time of the Founding, the Second Amendment would exclude protections for vast swaths of the American population who [undoubtedly] are members of the political community today.”

But what of the long-standing restrictions against selling guns to people under the age of 21?

“The historical sources show that, at the time surrounding ratification of the Second Amendment, 16 or 18 was the age of majority for militia service throughout the nation,” Payne writes. “In the decade following the ratification of the Second Amendment,” he adds, “Congress and every state then in the Union passed a militia law requiring almost all able-bodied white men between the ages of 18 and 45 to serve in the militia.”

Notwithstanding the fact that the age of majority was 21, the expectation that an able-bodied person “15 or 18” would be expected to serve in the militia if needed. In other words, gun possession was not, in 1791, was neither connected to the age of majority or subject to age restrictions, and was, in fact, expected for the purpose of being ready to fight.

“The fact that an individual could, or was required to, serve in the militia indicates that society believed that he lawfully could, and should, keep and bear arms,” Payne notes. “Furthermore, because militiamen generally were responsible for providing their own firearms, it is logical to conclude that 18-to-20-year-olds were not prohibited from purchasing them.”

The Eleventh Circuit, in contrast, held that age restrictions that were coming into being at the time of the Fourteenth Amendment’s passage, when the Second Amendment was applied to the states, provided the proper understanding as to age restrictions to be permitted.

But what of the fact that guns in the hands of 18 to 20-year-olds presents a substantial peril for society even their immaturity, developing intellect and cognition and poor decision-making?

But as Payne notes, “the ‘general societal problem’ of teenage impetuousness and rashness far [preceded] the Founding.” Since that is hardly a new phenomenon, he says, “the lack of analogous evidence of Founding-era regulations demonstrates that the statutes and regulations at issue are inconsistent with the Second Amendment.”

The arguments involved are reminiscent of the issues raised back in the 1960s with regard to voting and drinking alcohol. If 18-year-olds were old enough to be handed a rifle and shipped off to their death in Vietnam, they were old enough to participate in our political community and suck down some subs before they hit the jungle.

It’s a sound argument, even if the current reality is that expanding the ability to purchase guns to 18-year-olds opens a new door to the evils that so many consider one of our gravest national problems. Is there an argument to be made that 18 to 20-year-olds are fully people when it comes to most aspects of constitutional protections but not the Second Amendment? Ironically, as some are calling for the vote to be given to people even younger than 18, can the age to be considered “people” in the Second Amendment be distinguished from the other rights conferred on or protected for children?

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