U.S.A. –-(AmmoLand.com)- On 13 July, 2021, in the United States Court of Appeals for the Fourth Circuit, a three-judge panel issued an opinion that held 18-20-Year-Old people have Second Amendment rights. To people who have studied the Second Amendment and the supporting documents at the Founding, this is an unsurprising conclusion. From the decision, p. 24:
As with any matter of constitutional interpretation, “our inquiry begins with the text of the Constitution.” Altman v. City of High Point,330 F.3d 194, 200 (4th Cir. 2003). Both the text and structure of the Second Amendment, along with its place within the Constitution as a whole, reveal that it protects 18- to 20-year-olds. First, nothing in the text of the Second Amendment limits its application by age. Second, the most analogous rights to the Second Amendment, those in the First and Fourth Amendments, similarly contain no age limits. Third, most other constitutional rights are not age limited. And fourth, the few rights that may not apply to those under 18 or that change by age are not analogous to the Second Amendment, and most of those rights become applicable at age 18, not 21.
On page 29:
There are many things that minors and even those under 21 cannot do. See Ent. Merchs. Ass’n, 564 U.S. at 836–37 (Thomas, J., dissenting) (explaining that minors cannot drive for hire or drive a school bus, buy tobacco, play bingo for money, or execute a will). But none of those restrictions implicate constitutional rights, so states have great leeway to regulate those activities under their general police powers. And while the Court has “recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” that does not mean that children necessarily have different rights than adults. Danforth, 428 U.S. at 74. Often they have the same rights as adults, but the states’ interests are stronger with regard to minors so restrictions may more easily pass constitutional scrutiny. Ent. Merchs. Ass’n, 564 U.S. at 794–95. So it is hard to conclude that 18- to 20-year-olds have no Second Amendment rights when almost every other constitutional right affords them protection. This conclusion becomes inescapable when we consider the history.
The opinion makes clear members of the militia included 18-Year-Old people on up, and often, 16-Year-Old on up, but particularly 18 and up from 1791 and later.
There was considerable evidence 18-Year-Olds were expected to bring their own arms. One of the reasons given that children had to have their own arms, was fear the federal government would take issued arms away in a crisis. From the decision:
Generally firearms were owned privately and kept by the members of the militia in their homes as the government did not provide or keep the guns unless the citizen was too poor to afford one.29 That 18-year-olds had to be part of the militia and bring their own arms establishes that 18-year-olds were included among “the people” who enjoyed the Second Amendment right to keep and bear arms. See Heller, 554 U.S. at 580.
No regulations at the Founding restricting minor’s ability to possess or purchase weapons until two states adopted such laws in 1856.
The historical record cited in the opinion shows gradual infringements of the right being applied to those under age 21 as time went on. The age is not consistent, with the laws varying from 12 to 21. Laws after the Civil war especially suspect:
It would also be strange to rely on two southern laws restricting gun rights that were enacted before the Civil War given Congress’s grave concerns about southern states disarming freed Blacks during this period. Amar, supra,at 176; McDonald, 561 U.S. at 770–78. State laws passed decades after the ratification restricting gun ownership—at a time when state laws were used to disarm disfavored groups—is weak evidence of the original scope of the Second Amendment.
This reporter disagrees with the opinion at the following wording. To use the Orwellian term “gun violence” is to assume violence with guns is especially evil, more evil than the same violence without guns, perhaps with other weapons. This is irrational.
To begin, the government’s interests in preventing crime, enhancing public safety, and reducing gun violence are “not only substantial, but compelling.”
The opinion states age is a poor proxy to use as a measure of risk because very few of any age group commit violent crimes.
Disproportionate rates cannot justify vastly over-inclusive group restrictions
The opinion rejects laws based on group characteristics as unconstitutional:
For reducing gun violence and crime, restricting a whole group that is almost entirely law-abiding is the definition of an unduly tenuous fit.
The opinion eviscerates the heart of the gun control argument:
It is not enough to target guns generally and argue that less access to guns means less crime, as this would justify almost any restriction and eviscerate the Second Amendment.
The opinion categorically destroys IRS Commissioner Cohen’s expertise when giving testimony to Congress on the subject in 1965. It is a beautiful thing.
To begin, while the IRS regulated licensed dealers, this information seems beyond Commissioner Cohen’s experience. He was not in law enforcement, did not know from experience where guns used in crimes come from, and presented no studies or expertise from law enforcement to support his contention.
The conclusion of the opinion sums up the arguments exceedingly well:
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. Craig, 429 U.S. at 202.
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.
The dissent is long, and well argued. It does not talk much about rights. It talks about how Congress has the power to regulate (infringe on) the Second Amendment.
Essentially the argument in the dissent is: guns are bad. Therefore, the more we can restrict Second Amendment rights, the better. It is the typical Progressive argument the Constitution must be ignored in order to allow the government to regulate. It relies on numerous arguments from the circuits which have been undermining and dismissing Second Amendment rights as second class rights since the Heller decision.
Here is an example of the reasoning in the dissent, on page 140:
Fourth, courts should be especially hesitant to hold gun control measures unconstitutional due to their perceived infectiveness, because doing so will place the nation and its lawmakers in a formidable catch-22: pass too onerous a regulation and see it struck down for violating the Second Amendment; pass too permissive a measure and suffer the same result. This heads-I-win, tails-you-lose approach is a recipe for national inaction on gun violence. While the people are free to choose that course, it ought not be imposed from on high by us.3
In other words, courts should not uphold Second Amendment rights, because it would prevent the legislature from violating Second Amendment rights.
The argument includes a rare typo. “Infectiveness” is almost certainly meant to be “ineffectiveness”. It is extremely rare to catch a typo in a federal court opinion!
Given the makeup of the United States Court of Appeals for the Fourth Circuit, this correspondent expects this opinion to be appealed the Court en banc. The en banc Court will reverse the decision; it will then be appealed to the Supreme Court which may or may not decide to hear it.
The arguments are similar. Essentially they are: is the fundamental, Constitutional right protected by the Second Amendment to be respected, or is it to be eviscerated by the Courts as it has been by several legislatures?
The Federal Courts have been dominated by Progressive ideology at least since 1937. A classic example of Progressive “reasoning” on the Second Amendment comes from Cases v United States, in 1942 as detailed in an AmmoLand article:
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
The Progressive judges in Cases v United States, all appointed by Franklin Delano Roosevelt, dismiss the right to military arms, not by analysis of the Constitution, but because they wish to do so.
To Progressive ideologists, the Constitution has always been an obstacle to work around, rather than a founding document to respect and maintain.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.