The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach.
BC says:
It’s tremendously difficult to take the opinion seriously in that it cites Saul Cornell’s “scholarship” favorably.
October 6, 2009, 2:46 pmKazinski says:
It’s hard to argue that the States don’t have the power to regulate handgun possession by a juvenile, so I don’t think there is much of a second amendment issue here. But it certainly seems beyond Congress’s Commerce Clause powers to regulate handgun possession in a private home. Otherwise it would seem that the Commerce Clause isn’t an article in the Constitution, but a writ from the Lord God.
October 6, 2009, 3:37 pmzippypinhead says:
Dave, I have a hard time thinking there’s any error in the First Circuit’s holding or reasoning in this case.
First, 18 U.S.C. §922(x) has safe harbors for a juvenile to possess a handgun with the permission of his parent or guardian, for use in legitimate shooting sports or employment, military service, and in defense against intruders in the juvenile’s residence. These provisions, especially §§(x)(3)(D)’s exemption for defense against intruders, would seem to meet the Second Amendment right as defined by Heller, even in the face of a prohibition on juvenile possession in general.
The defendant had a criminal history category of III under the Sentencing Guidelines. As someone with more than passing familiarity applying the Sentencing Guidelines, this suggests to me that probably at least one of his prior juvenile adjudications would have been a felony if committed by an adult (if he stacked up enough separate misdemeanor sentences of incarceration he could also get there, but that would be rare in the juvenile systems I’m familar with). Assuming he probably committed crimes that would be felonies if committed by an adult, Justice Scalia’s dicta in Heller that leaves intact felon-in-possession prohibitions should apply here as well, and could be an independent ground for upholding the conviction against a Second Amendment challenge. Frankly, this defendant is lucky he was only 17 – if this kid had instead been an adult charged under §922(g)(1), with his criminal history he would have gotten a LOT more than 6 months jail time.
While there are interesting arguments one can make about the limited reach of the Commerce Clause (that aren’t supported by current caselaw), in this case the trace of the specific handgun from the point it became a contraband crime gun in Georgia to Maine should provide an adequate interstate commerce hook, even for those with a restrictive view of the Commerce Clause.
At bottom, this case doesn’t trouble me at all (except perhaps for the ill-advised cites to Saul Cornell, as BC already pointed out above).
October 6, 2009, 3:39 pmPersonFromPorlock says:
BC:
On the other hand, how seriously can we take an argument that the interstate commerce power has any limits? That horse is an EX-horse….
October 6, 2009, 3:40 pmtherut says:
How about adults from 18 to 21. Are they allowed or does Clinton and liberals think they are children under the law. If so why can they get abortions and not handguns???
October 6, 2009, 3:49 pmBC says:
True enough. Is, ought, yadda yadda. :/
October 6, 2009, 4:13 pmRenvoi says:
“[B]ecause a handgun ‘must come from somewhere, often out of state,’ Congress could have rationally concluded that the intrastate possession of a handgun by juveniles substantially affects the national handgun market.”
Standard Wickard v. Filburn logic. Here is the 9th Circuit’s reasoning in Michael R.:
Seems more like Congress wanted to regulate an activity it thought was bad rather than having any desire to regulate commerce among the several states.
Also, it doesn’t matter that the specific gun in this case happened to cross state borders, section 922(x)(2)(A) applies to all handguns, not just those that cross state borders. The interstate commerce hook in this case is the Court’s speculation regarding Congress’s possible conclusion about the possible impact on the interstate handgun market, regardless of whether there actually is any noticeable impact. You could attach a stack of studies to your brief showing that juvenile gun possession has zero impact on commerce in the next state and the Court would still defer to Congress’s possible conclusion.
The impact on interstate commerce of juvenile gun possession hardly seems “substantial”; to me it seems pretty attenuated.
October 6, 2009, 4:36 pmSnowflakes in Hell » Blog Archive » Youth Handgun Safety Act Upheld in the 1st Circuit says:
[...] Court of Appeals, which covers the states of Massachusetts, Maine, New Hampshire, and Rhode Island, has upheld the ban on possession of handguns by juveniles. You can read the opinion here. I’m happy the Circuit Court in this case took the time to do [...]
October 6, 2009, 4:42 pmSoronel Haetir says:
I do have much more trouble with the 18-21 age cohort than the under 18.
October 6, 2009, 5:28 pmOren says:
Why can they vote and not drink beer? Why can they drive but not serve as President?
I suggest you read Orin’s post about distinctions from a few weeks back for the answer.
October 6, 2009, 5:58 pmChrisTS says:
I have no idea what Clinton and the liberals does think. What are you thinking?
October 6, 2009, 6:23 pmChrisTS says:
Are there [ggod] arguments for having different age-of-maturity levels for different legal purposes?
There is cog sci evidence that people are not mentally ‘adult’ until about 24/25. That probably sets the bar too high, for many reasons, but why should there be one age for drinking, a different one for voting and military service, and so on? (I see the linkage between voting and military service, of course.)
How about 21 or 20 for all of it?
October 6, 2009, 6:37 pmchris says:
Considering that most reports on gun deaths among children include ages up to 22 as children in their stats, you are right on.
October 6, 2009, 7:41 pmOren says:
At the very minimum, setting 20 as the age of consent for sexual relations would not be taken well on most college campuses. 20 for driving is also not going to fly.
At the very minimum, you need 16 for driving/sex/voting/military and another higher for handguns, booze and serving in Congress or as President.
October 7, 2009, 12:22 pmLarryA says:
Because military recruiting would plummet.
It’s interesting that we can’t trust a “child” of 20 to purchase a handgun, but we can add a uniform to an 18-year-old and issue him an M-16.
This defendant, of course, was 17 at the time. Federal law prohibits purchase of a handgun by anyone under 21, but possession only under 18.
I note that in Texas, and a couple of other states, a person who is at least 18 and is on military service, or who has successfully completed military service, is eligible for a concealed handgun license.
October 7, 2009, 6:13 pmOren says:
Under the continued command of his military superiors yes, of course. The military is more than capable of providing the requisite discipline (and productive outlet).
October 7, 2009, 6:32 pmLarryA says:
Good point.
OTOH when my platoon was out in the jungle in Vietnam the only “military superior” with us who was 21 or older was me, the platoon leader. My platoon sergeant was a 20-year-old NCOIC grad, and my squad leaders were 19 or 20. I was 22, and the senior platoon leader in the company. We had one OCS 2LT platoon leader that was only 20. No one in his platoon was (at the time) old enough to vote.
October 7, 2009, 7:08 pmJoe says:
“with us”
Yes, and in school, students might be immediately in control of a class or something, but ultimately older people provide oversight.
October 8, 2009, 9:50 amPintler says:
In much of the country, oversight of juveniles and guns is performed by people called ‘parents’. For the most part that works pretty well. When we try to draft laws to keep teen gang members from shooting each other, it’s worth remembering they are the anomaly, not the norm.
I think it’s also worth considering the forbidden fruit effect. When I was growing up, anyone who wanted guns could get one. No one had a safe. Upscale people had a glass sided case with hunting scenes engraved in the glass, regular folk had them on nails in the basement or in a closet corner. Any kid who wanted a gun could get one easily – yet no one would have dreamed of bringing one to school to settle a fight. Guns were just another tool, as unremarkable as a baseball bat or axe or the pocketknife we all carried. They just didn’t have any mystical totemic power to make you someone special or powerful or compensate for feelings of inadequacy or whatever.
Making a big deal about them comes with a downside – kids start to think they are a big deal, and they acquire a mystique that makes them attractive for all the wrong reasons.
October 8, 2009, 10:49 am