The Second Amendment and The Right of Persons 18 to 20 Years Old to Carry a Firearm

Sometimes, a case comes along that seems extremely narrow but, in reality, has sweeping implications. A recent decision by a federal appellate court (the Third Circuit) in Lara v. Commissioner Pennsylvania State Police is such a case. In Lara, the Court: (a) held that persons 18 to 20 years old have a Second Amendment right to carry a firearm, (b) implicitly held that prohibiting the carrying of firearms during a declared state of emergency is unconstitutional under the Second Amendment, (c) strongly suggested that the Second Amendment protects the right of US citizens to “keep and bear arms,” and (d) held that courts should look to the time period surrounding the enactment of the Second Amendment when evaluating Second Amendment claims.

Pennsylvania law prohibits individuals between the ages of 18 and 20 from carrying a concealed firearm. Specifically, to carry a concealed firearm in Pennsylvania, an individual must have a concealed carry permit. Pennsylvania law, however, does not allow persons under the age of 21 to obtain a concealed carry permit. Pennsylvania does allow persons 18 years of age and older to carry a firearm openly. There is an exception to the open carry law: individuals who are 18 to 20 years of age may not openly carry firearms during a declared state of emergency. As a practical matter, under Pennsylvania’s gun laws, during a declared state of emergency, persons 18 to 20 years old may not carry a firearm at all.

This “emergency” limitation on carrying a firearm for 18 to 20 year olds may seem like a minor issue, but for the fact that Pennsylvania was in a declared state of emergency for nearly three years. This multi-year state of emergency existed due to several emergency declarations issued by the Governor of Pennsylvania: the Covid pandemic, “the opioid addiction crisis, and Hurricane Ida.” With a stroke of a pen, the Governor of Pennsylvania was able to prohibit persons 18 to 20 years old from carrying a firearm. The Third Circuit held that this was unconstitutional.

The Second Amendment protects the “right of the people to keep and bear Arms.” The first question the Court had to address was whether persons 18 to 20 years old were “people” as that word is used in the Second Amendment. The Court stated that the word “people” is used in the Constitution several times and generally refers to “all members of the political community, not an unspecified subset.” (Citing the Supreme Court’s decision in Heller). The Court also pointed out that other constitutional rights are not limited to those 21 years and older. Persons 18 to 20 years of age have the “right to vote,” rights under the First Amendment certainly apply to persons 18 to 20 years of age, and “the right against unreasonable government searches and seizures” under the Fourth Amendment. Given the lack of any age restrictions set forth in the text of the Second Amendment, the Court believed that, as a matter of consistency, it could not interpret the word “people” to exclude persons 18 to 20 years old from the scope of the Second Amendment.

This did not end the Second Amendment analysis. Even if the word “people” includes persons 18 to 20 years of age, it is still possible that prohibiting persons 18 to 20 years old from carrying firearms is constitutional. As the Court explained, finding that the word “people” included 18 to 20 year old individuals meant that Pennsylvania could justify its prohibition if it could show that states have historically restricted the ability of persons 18 to 20 years old to carry firearms. Pennsylvania was not able to prove the existence of such a historical tradition.

Mentioning a “historical tradition” test only begs the questions as to what the relevant time frame is for the historical analysis. The historical analysis is intended to determine what the words in the Second Amendment (the “right to keep and bear Arms, shall not be infringed”) actually mean. The historical test does this by looking at laws or court decisions that addressed the regulation of firearms and other weapons during the relevant time period. The regulation of the possession and carrying of firearms during a relevant time period can show the existence of certain limitations to the Second Amendment’s broad language. The historical test, therefore, provides meaning to the very broad language in the Second Amendment by presuming that persons who enacted the Second Amendment incorporated, into the right to keep and bear arms, limitations that were commonly accepted at the time.

The Second Amendment was enacted in 1791, so one possible relevant time period is the late 1700s and early 1800s. A criticism of using this time period is based on the fact that when the Second Amendment was enacted, it only restricted actions taken by the federal government. As a matter of constitutional law, the Second Amendment was made applicable to the states by the Fourteenth Amendment, which was enacted in 1868. As a result, some commentators have argued that the relevant time frame for understanding the Second Amendment as it is applied to the states is a time period surrounding 1868.

Choosing a relevant time frame is not an academic question. At the time the Second Amendment was enacted in 1791, there existed very few gun control laws. There did not exist any laws prohibiting the possession of firearms and many other types of weapons. It was not until the early 1800s that a few states enacted laws prohibiting the concealed carrying of pistols and other weapons. Even in the early 1800s, very few laws existed that we would call gun control laws.

The Fourteenth Amendment was enacted in 1868, which potentially pushes the relevant time frame for Second Amendment purposes forward about 80 years. In the late 1800s, more states began passing gun control laws. Some of these laws, for example, were designed to keep recently freed slaves from possessing or carrying firearms. Other laws were responses to crime in large cities and in western states in which the rule of law was not fully established. Using a time frame covering the late 1800s for the historical analysis will reveal more regulations on the possession and carrying of firearms and other weapons than the time period around the enactment of the Second Amendment. This means that the outcome of a Second Amendment case could turn on the relevant time frame.

The Court in Lara rejected using the late 1800s as a relevant time period. The Court held that the relevant time period for the historical analysis was the time period surrounding the enactment of the Second Amendment in 1791: “to maintain consistency in our interpretation of constitutional provisions, we hold that the Second Amendment should be understood according to its public meaning in 1791.”

There are problems using the time period surrounding the enactment of the Fourteenth Amendment. Using this time period implies that either the Second Amendment was modified by the Fourteenth Amendment or that one version of the Second Amendment controls the federal government, and another version controls the states. The suggestion that two different versions of the Second Amendment (one for the federal government and one for the states) exist is not tenable and is inconsistent with the Supreme Court’s interpretation of other constitutional rights. The suggestion that the Second Amendment was modified by the Fourteenth Amendment is not historically sound and would impact how we interpret other constitutional rights contained in the Bill of Rights.

The Supreme Court has not resolved the relevant time period issue. In its Bruen decision, the Supreme Court strongly suggested that the time period surrounding the enactment of the Second Amendment is the relevant time frame for the historical analysis. Despite its strong suggestion, the Supreme Court chose not to definitively resolve the issue.

Using the time frame surrounding the enactment of the Second Amendment, Pennsylvania was unable to show a historical tradition of states limiting the ability of persons 18 to 20 years of age from carrying firearms. Pennsylvania was not able to cite any laws in effect around the time the Second Amendment was enacted that limited the ability of persons 18 to 20 years of age to carry firearms. Nor was Pennsylvania able to cite any laws that were analogous to its prohibition on the carrying of firearms by persons 18 to 20 years of age.

Implicit in the Court’s decision is a holding that a state cannot strip individuals of their Second Amendment rights by declaring a state of emergency. If Pennsylvania cannot strip persons 18 to 20 years of age of their Second Amendment rights by declaring an emergency, it cannot strip away the Second Amendment rights of persons 21 years of age and older.

This is not a theoretical issue. In the aftermath of hurricane Katrina, law enforcement officers confiscated thousands of firearms from the homes of law-abiding citizens. This was done at a time when the need for a firearm to protect yourself and your home was acute. It is hard to imagine a more blatant and significant violation of Second Amendment rights than law enforcement going into people’s houses and taking their firearms.

The decision in Lara rejected Pennsylvania’s claim that it can restrict Second Amendment rights by having the Governor simply declare a state of emergency. While the law was limited to persons 18 to 20 years of age, the substance of the decision protects the Second Amendment rights of persons 21 years of age and older. This decision is, therefore, a good first step in ensuring that state governments cannot confiscate firearms or gut Second Amendment rights through the invocation of emergency powers.

Finally, when the Court addressed the definition of the word “people” in the Second Amendment, it strongly suggested that the word “people” is limited to American citizens. Recently, a federal district court in Illinois held that the Second Amendment protected the right of an illegal alien to possess a firearm, which is unlawful under federal law. Whether the word “people” in the Second Amendment includes non-citizens is an issue that will have to work it’s way through the courts. While this was not an issue in Lara, the Court’s analysis argues against interpreting the word “people” to include illegal aliens. The Court stated that “a strong presumption [exists] that the Second Amendment applies to ‘all Americans.’” (citing Heller). The Court went on to quote from the Supreme Court’s decision in Heller: “the people . . . refers to a class of persons who have otherwise developed sufficient connection with this country to be considered part of that community.” Further, the Supreme Court in Heller stated that the Second Amendment protects “law abiding citizens.” Taken together, the Court’s statements in Lara are not consistent with illegal aliens having Second Amendment rights.

In the heart of our nation’s ongoing discourse on liberty and security, the Second Amendment stands as a testament to the enduring value Americans place on their right to bear arms. At The Law Offices of George M. Sanders P.C., we recognize the complexities and challenges that come with navigating this fundamental right amidst modern legal landscapes. Our extensive experience and steadfast commitment to civil liberties empower us to advocate effectively for those seeking to assert their Second Amendment rights. If you or someone you know requires guidance or representation in matters relating to the Second Amendment, we invite you to reach out for a consultation, where your rights will always be our top priority.