Federal Appellate Court Recently Holds that 18 to 20 Year Olds Have a Second Amendment Right to Carry a Handgun

In New York State Rifle and Pistol Association v. Bruen, the Supreme Court significantly changed how courts evaluate Second Amendment claims.  Prior to Bruen, federal courts would balance the alleged need for a gun control law against an individual’s right to possess or carry a firearm.  This interest balancing approach allowed judges to turn their policy views into constitutional doctrine.  This typically resulted in lower federal courts upholding gun control laws: courts were extremely unwilling to put the right to keep and bear arms over public safety arguments.  The Supreme Court’s decision in Bruen held that interest balancing was not permitted when analyzing the Second Amendment.  Instead, courts needed to ask two basic questions: (a) did the challenged law impact conduct covered by the clear text of the Second Amendment, and (b) could the government show that there existed a legislative tradition during a relevant time period indicating that the challenged gun control law was consistent with the Second Amendment when it was enacted.

Gun control laws include a wide spectrum of different laws and regulations.  For example, some (a) prohibit or regulate the possession of certain types of firearms, (b) set up licensing requirements for the possession, purchase or carrying of a firearm, (c) limit where someone can carry a firearm, (d) regulate the manner in which a firearm is carried (concealed carry or open carry), and (e) prohibit certain groups from possessing and/or carrying a firearm.  Laws that prohibit certain groups of individuals from possessing or carrying a firearm have come under increasing scrutiny since the Supreme Court’s decision in Bruen.

There are a number of so-called “status laws” that prohibit certain groups of individuals from possessing and/or carrying a firearm.  Some status-based gun control laws are based on an individual’s criminal history.  For example, having committed a felony results in a lifetime ban on possessing a firearm.  Another set of status-based laws focus on an individual’s age.  Many states prohibit persons between 18 and 20 years of age from carrying a handgun.  These laws are largely based on the belief that some 18 to 20 year olds lack the mental maturity to safely carry a firearm.  Persons 18 to 20 years of age (particularly men) may have a statistically higher incidence of engaging in dangerous and even criminal behavior than older groups.  This data, however, certainly does not support a claim that anything other than a small minority of 18 to 20 year olds is involved in dangerous or criminal activity.  Yet, as a group, 18 to 20 year olds are prohibited by some states from carrying a handgun without any particularized evidence showing that the individual is a danger to anyone.

In Worth v. Jacobson, the Eight Circuit struck down a Minnesota law that prohibited 18 to 20 year olds from obtaining a concealed carry license.  Without such a license, 18 to 20 year old individuals were effectively prevented from carrying a firearm outside their homes.  The Eight Circuit held that 18 to 20 year olds were part of the “people” for purposes of the Second Amendment, that the Minnesota law, on its face, infringed upon the right to keep and bear arms, and, finally, that no historical tradition could support Minnesota’s prohibition.

Who Are The “People” Protected By The Second Amendment?

The Second Amendment states that the “right of the people to keep and bear Arms, shall not be infringed.”  Prior to Bruen, courts had used various formulations to limit who the Second Amendment protected.  The most commonly recited limitation was the phrase that only “law-abiding citizens” were covered by the Second Amendment.  There were a number of problems with the “law-abiding citizen” standard.  First, the phrase does not appear in the Second Amendment.  Second, the phrase has no precise meaning and is quite malleable.

There was never a credible argument that 18 to 20 year olds were somehow not law-abiding citizens, and courts needed to use a different rationale to uphold gun control laws that stripped this group of its Second Amendment rights.  Prior to Bruen, courts relied on the argument that because 18 to 20 year olds had a higher incidence of engaging in dangerous or criminal activity, stripping all 18 to 20 year olds of their Second Amendment rights was justified.  Under the interest balancing tests, federal courts were highly deferential to public safety claims made by states.

In Worth v. Jacobson, Minnesota tried several new arguments given the end of interest balancing.  First, Minnesota argued that 18 to 20 year olds did not fall within the word “people” in the Second Amendment.  The Court in Worth rejected this argument.  The court pointed out that 18 to 20 year olds have a constitutional right to vote, which makes them a part of the political community.  As part of the political community, 18 to 20 year olds have the same constitutional rights as persons 21 years and older.

There are, however, even more significant problems with Minnesota’s argument.  First, the Second Amendment does not have any age limitation.  Second, the suggestion that persons under the age of 21 lack constitutional rights is clearly false.  Persons under the age of 21 have rights under the First Amendment, the Fourth Amendment, the Sixth Amendment, the Due Process Clause and other constitutional provisions.  There exists no textural support in the Second Amendment or the Constitution that 18 to 20 year olds have fewer constitutional rights than persons 21 years of age and older.

A deeper problem with Minnesota’s argument is that it is based on a person’s status and not on anything that person has done.  While Minnesota may view 18 to 20 year olds as being more dangerous when it comes to handling firearms than people over the age of 20, the Court in Worth stated that “the Second Amendment does not have a freestanding extratextual dangerousness catchall.”  The Court concluded its analysis by stating that “the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

The “Relevant Timeframe” and The Legislative Tradition Test

The Court then turned to the next phase of a Second Amendment analysis, in which it examined whether a legislative or judicial tradition supported the disarming of 18 to 20 year olds.  This phase of the analysis has two basic parts.  The first step involves determining the relevant timeframe for the legislative and judicial tradition.  The second step specifically looks at whether the gun control law at issue is supported by some type of legislative or judicial tradition during that relevant time frame. In Worth, the Eight Circuit held that the relevant time period for analyzing a Second Amendment claim is the timeframe surrounding the enactment of the Second Amendment in 1791.  The Court rejected the argument that the relevant time period could extend into the late 1800s and early 1900s.

In Worth, Minnesota argued that the relevant time-period runs from the late 1700s to the late 1800s.  The most natural timeframe for analyzing the Second Amendment, however, is the timeframe surrounding its enactment in 1791.  The argument for a timeframe running into the late 1800s or even the early 1900s is based on the fact that the Second Amendment was made applicable to the states by the 14^th Amendment, which was enacted in 1868.  There are a number of problems with using 1868 and the following decades as the relevant timeframe.  First, the Second Amendment has always applied to the federal government.  If the 14^th Amendment changed the meaning of the Second Amendment when it was applied to the states, we are left with one Second Amendment for the federal government and a different Second Amendment for the states.  The courts have routinely rejected the suggestion that one Second Amendment exists for the federal government and one for the states.

A more fundamental problem is that the 14^th Amendment’s text does not contain a revised Second Amendment.  Instead, the Second Amendment, like the First Amendment and others, was made applicable to the states by the Due Process Clause of the 14^th Amendment.  An important purpose for the 14^th Amendment was to ensure that Congress had the power to pass the laws necessary to protect the civil rights of the freed slaves.  The argument for using the later timeframe for the Second Amendment rests on the unstated suggestion that the meaning of the Second Amendment had somehow changed and that the drafters of the 14^th Amendment chose to use a new understanding of the Second Amendment.  There is no evidence, however, to support this.  There is certainly no suggestion in the text of the 14^th Amendment that the Second Amendment would have a new meaning and scope.

Further, the argument that the Second Amendment had a new meaning in 1868 is inconsistent with the established view that constitutional rights retain their original meaning.  If the Second Amendment retained its original meaning between 1791 and 1868, the 14th Amendment simply applied to the states the Second Amendment’s original meaning.

A further problem with interpreting the Second Amendment by looking at laws enacted after the Civil War is that many of the gun control laws enacted during that period of time were designed to disarm disfavored groups.  Many southern states, for example, enacted gun control laws after the Civil War to prevent freed slaves from possessing or carrying firearms for their protection.  One of the initial civil rights laws passed by Congress after the Civil War was designed to protect the Second Amendment rights of freed slaves from repressive and racially motivated state laws.  One of the ways, and there were many ways, the federal government failed the freed slaves in the south after the Civil War was allowing the southern states to disarm the freed slaves.  It is much more plausible that many gun control laws enacted shortly after the Civil War were done in defiance of the Second Amendment.

After setting the relevant timeframe, the Eight Circuit held that there did not exist a legislative tradition or history that would support Minnesota’s status-based restriction on the ability of 18 to 20 year olds to obtain a carry permit.  None of the laws Minnesota cited supported the carry prohibition.  For example, it is true that some states during the colonial period had enacted laws that prohibited the sale of firearms to American Indians.  The problem with relying on these laws is that American Indians belonged to what were considered foreign nations.

Slave states had also enacted laws that prohibited the possession of firearms by slaves.  These laws were designed to prevent slaves from rebelling against their enslavement, and it is ironic for any state at this point to rely on such laws.  Further, slaves were not considered part of the “people,” in slave states.  Slaves were considered personal property belonging to their owner, and they did not possess any civil rights or political rights.  It took a civil war and the enactment of the 13^th and 14^th Amendments to stop this disgrace in American history.  These laws do not show a legislative tradition that would support the stripping the Second Amendment rights of 18 to 20 year old American citizens.

A third category of laws involved loyalty oaths.  Many states around the time of the revolution stripped individuals of their right to possess firearms if they refused to swear an oath of loyalty to their state.  The concern addressed by these laws was that persons who refused to take the loyalty oath might actively fight for the British against the colonists in the war for independence.  These loyalty laws differ from Minnesota’s prohibition on 18 to 20 year olds carrying handguns in a number of important ways.  First, a person would lose their right to possess a firearm under a loyalty oath law because they refused to take the required oath.  These laws did not apply to people because of some immutable characteristic.  Second, the prohibition on possessing a firearm triggered by refusing to take the loyalty oath was not a permanent ban.  An individual would regain their right to possess a firearm once they took the loyalty oath.  Finally, while refusing to make a loyalty oath did provide some indication that you might pose a danger to the state during the war of independence, this determination was based on conduct not on your age or other immutable characteristic.

Minnesota then made the novel argument that the court should draw an inverse inference from the 1792 Milita Law that required individuals who were 18 to 20 years old to acquire a firearm for their militia duty.  There are a number of problems with Minnesota’s relying on this law.  First, and most obviously, the law seeks to arm 18 to 20 year olds; the law did not order the disarmament of persons 18 to 20 years old.  Second, a law requiring 18 to 20 year olds to purchase a firearm for militia duty does not naturally or even logically imply that this age group was otherwise prohibited from possessing or carrying firearms under state law.  Finally, it is much more plausible that the law was designed to ensure that 18 to 20 year olds actually had a proper firearm to fulfill their militia duties.  Traditionally, male citizens were not provided firearms to perform their duties in the militia.  The militia was not a standing army, and its members included all male citizens within a certain age (provided they did not have an exemption).  The members of the militia would periodically meet for training close to where they lived.  The militia in the late 1700s was not like today’s modern Army or the National Guard which provides its soldiers with their weapons.  A law designed to ensure that militia members had the necessary firearms does not logically support a law that bans certain individuals from carrying a firearm.

Closing Thoughts

Laws that strip individuals of their Second Amendment rights because of their age or some other “status” raise significant constitutional issues in light of the Supreme Court’s decision in Bruen.  In Rahimi, for example, the Supreme Court recently held that an individual subject to a domestic restraining order can be stripped of their Second Amendment rights for the duration of the restraining order.  The Supreme Court, however, pointed out that the restriction was limited in its duration and was only triggered by a judicial finding that the individual was, in fact, dangerous and posed a threat to their domestic partner.  While Rahimi upheld the federal law prohibiting the possession of firearms by persons subject to a domestic restraining order, it suggested that permanent bans based on a presumption that someone is potentially dangerous may not be constitutional.

The right to bear arms remains a cornerstone of our constitutional freedoms.  At The Law Offices of George M. Sanders, P.C., we are steadfast in our commitment to defending this essential liberty.  We understand the complexities involved in safeguarding your rights and stand ready to offer our insight to ensure your voice is heard and your freedoms are protected.  If you find yourself in need of legal guidance or believe your rights are being challenged, do not hesitate to reach out to us.