The majority in State v. Sieyes rejects a 17-year-old’s challenge to Washington’s restriction on gun possession by under-18-year-olds; eight Justices take this view. The restriction is basically a ban on under-18-year-olds’ possessing guns, with exceptions for possession at home (for self-defense) or on family property, with a parent’s permission, as well as for certain lawful hunting, target-shooting, training, or military purposes.
The majority opinion, for five of the eight Justices, appears to be based chiefly on the sketchiness of the defendant’s argument (some paragraph breaks added), plus perhaps based on the exceptions in the statute:
We follow Heller in declining to analyze RCW 9.41.040(2)(a)(iii) under any level of scrutiny. Instead we look to the Second Amendment’s original meaning, the traditional under[s]tanding of the right, and the burden imposed on children by upholding the statute. See generally Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1449 (2009).Tellingly Sieyes fails to provide convincing authority supporting an or[i]ginal meaning of the Second Amendment, which would grant all children an unfettered right to bear arms. In fact during oral argument Sieyes’s counsel conceded the opposite. Furthermore Sieyes makes no adequate argument specific to the facts of this case that a 17-year-old’s Second Amendment right to keep and bear arms has been violated by this statute. [Footnote: Sieyes claims anecdotes in Heller should persuade us "the Second Amendment forbids absolute prohibitions on firearm possession by minors." This broadsided argument against absolute prohibitions on gun possession by minors misses the mark because RCW 9.41.040(2)(a)(iii) is not an absolute prohibition (note the nine exceptions in RCW 9.41.042).]
Similarly Sieyes mentions the statute restricting children from possessing firearms violates his right to bear arms under article I, section 24 [of the Washington Constitution], but cites no authority and makes no argument for this proposition. [Footnote: Appellant could have made this argument by analyzing the issue under Gunwall [a state decision discussing how state constitutional rights questions should be argued]. For example he might have provided evidence of a historical tradition in Washington of 17-year-olds possessing or using firearms for defense of themselves or the state, or of background legal principles to that effect.]
Sieyes’s objection may be that he was 17 years old at the time of his arrest, and his right to bear arms should be equal to that of an 18-year-old’s, but his arguments fail to challenge the statutory age limit set by this statute. In sum appellant offers no convincing authority supporting his argument that Washington’s limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day. [Footnote: The argument put forth by the dissent is no substitute for an argument briefed by opposing parties.]
Two more Justices simply say that “Christopher Sieyes offers no analysis of how RCW 9.41.040(2)(a)(iii) violates either article I, section 24 of the Washington State Constitution or the Second Amendment to the United States Constitution — under any level of scrutiny. Instead, his argument rests on the erroneous premise that that statute ‘is an absolute prohibition of firearm possession by minors.’ The majority properly rejects this claim.” One Justice concurs without opinion.
The one-Justice dissent argues that the conviction violated the Second Amendment, arguing that
- minors have long been allowed to serve in the military, from which the opinion seemingly concludes that, a fortiori, minors (presumably at least older minors) should be trusted with guns in civilian life,
- strict scrutiny should be applied to restrictions on the right to keep and bear arms,
- strict scrutiny should be applied to restrictions on constitutional rights even where the rights of minors are involved, though some such restrictions might pass strict scrutiny for minors though not for adults,
- “We should not examine with any less intensity impairment of infringement of the gun rights of youth under the Second Amendment than we do limitations of their right to be free from unwarranted searches under the Fourth Amendment or our more demanding state iteration, article I, section 7.”
I did not see, though, any explanation by the dissent of why the law fails strict scrutiny. The dissent agrees that “it is certainly … constitutional to restrict the right of teenagers to bear arms in limited, prescribed circumstances outside of the military,” which suggests that it’s unconstitutional to restrict that right more broadly — but it doesn’t explain just what the permissible boundaries are, or why this law transgresses them. (I assume that the dissenting opinion does think the law fails strict scrutiny, at least as to this litigant, since otherwise it would have been a concurrence in the judgment, notwithstanding its disagreement with the majority on the merits — that it is a dissent suggests that it disagrees with the bottom line, and not just the reasoning.)
If you want to see the First Circuit decision upholding the federal ban on handgun possession by under-18-year-olds, read United States v. Rene E. If you want to see my tentative thoughts on this general question, see PDF pp. 66-68 of my Implementing the Right to Keep and Bear Arms article. (I will write more about minors and the right to bear arms in the context of almost entirely nonlethal weapons, such as irritant sprays and stun guns, in a forthcoming Arizona State Law Journal article. For my early thoughts on the subject, see here and here.)
Cal Attny says:
@ EV:I agree with your analysis that the court’s decision re application of the 2nd to the statute was based on Sieyes’ failure to present any cogent argument. However, any journeyman attorney would have at least cited the militia statutes in effect when the 2nd was ratified–a cursory googling indicates good support for a 17yo to have the right to bear based on that alone. The dissent makes a decent argument based on military service, but IMO I don’t think exceptions for military service are a good analog.
February 18, 2010, 1:35 pmChris Travers says:
Cal Attny:
Heck my first thought was that the federal militia statutes place 17-year-olds in the unorganized militia…..
February 18, 2010, 2:33 pmJohn says:
The dissent does say, at the very end, that “the statute cannot survive” strict scrutiny. But there’s no analysis explaining why that is so. “Strict in theory, fatal in fact,” I guess.
February 18, 2010, 2:36 pmDennis N says:
I think a pretty strong empirical and intellectual argument can be made that minors, even older minors, are enough different from adults, that it can be reasonable to restrict their rights.
But I don’t know that there is any history of significant problems caused by otherwise law abiding kids with guns.
When I grew up in Massachusetts, a kid could buy and carry a long gun at 15 if he had passed a hunter’s safety course, and 16 otherwise. Pistols required an age of 21 and a police issued permit. I don’t know of any problems with kids shooting up the place. We used our BB guns for that.
They passed a law requiring you to be 21 to purchase a BB gun or BBs. I recall an incident, when I was 16. We were all going out shooting, and stopped at the sporting goods store for ammunition.
“Let’s see, we need 500 rounds of .22, a box of 12 gauge No 6s, a box of 16 gauge No 6s, a box of .30-06, a box of 8mm, a box of .303, and a box of 7.7 Jap.” Between us, we had a good representation of weapons from all the major armies of WW-II. “Oh, and five tubes of BBs.”
“Are you guys 21?”
Customers and stoorkeeper all looked at the small mountain of ammunition on the counter and cracked up.
“What can I say, it’s the law.”
To give the devil his due, kids were shooting stuff up with BB guns, but not with their .22s. That would have been dangerous.
February 18, 2010, 2:38 pmPhatty says:
Once the dissenting judge determined that strict scrutiny applied, he didn’t have to argue why the law fails strict scrutiny; it is the government’s burden to prove why the law satisfies strict scrutiny and presumably the government did not satisfy that burden in this case.
February 18, 2010, 2:56 pmPintler says:
DennisN: I too was raised in a place and time where lots of 14 year olds were turned loose with 22 rifles to no great harm. Unfortunately, in King County, WA, today, a 17 year old with a 380 in a car is somewhat like less likely to be squirrel hunting than in those bygone days :-(. I don’t know what that says about the constitutionality of the law, but they are different places and times.
As an aside, I take my hat off to Willie Johnston and comrades. From the partial dissent:
February 18, 2010, 2:56 pmChris Travers says:
Sure. But what good is it to declare that all 17-yo males are part of the unorganized militia but they can’t own firearms?
February 18, 2010, 3:10 pmFederale says:
It shows the hypocracy of the left when at the same time they say minors of any age can get an abortion and engage in sex without the permission of their parents.
February 18, 2010, 3:11 pmDennis N says:
I would argue that the law can fairly distinguish between long gun possession and handgun possession. The latter is probably pegged at 21 by other legislation, anyway.
Oh, I agree with you. I was merely addressing the broader principle. You zoomed in on a more detailed issue.
February 18, 2010, 3:29 pmlosantiville says:
Eugene,
Your article didn’t cite any colonial era age restrictions on gun ownership. Have you found any?
Since older restrictions on the right to marry applied to much younger children than today, I wouldn’t think the Drafters of the 2nd would have intended significant age restrictions. Hunting and plinking by young children seems common.
I guess children were better behaved in those days and less likely to indulge in random killings. Religious training and corporal punishment perhaps?
To dodge the restriction form a corporation owned by your children and have the corporation own the guns.
February 18, 2010, 5:27 pmUnder-18-Year-Olds and the Right to Keep and Bear Arms | Liberal Whoppers says:
[...] the original: Under-18-Year-Olds and the Right to Keep and Bear Arms [...]
February 18, 2010, 5:37 pmDennis N says:
Even easier, the parents. I think the issue is more over possession.
I used to sling my rifle and carry it down the main drag, past the shopping center, past The Project where all the bad kids lived, to the disused gravel pit where we used to shoot.
Today, there would have been helicopters overhead and armored vehicles responding. I only ever had one “incident.” A project kid came up to me, squatted down to get a better look at my rifle, and proclaimed it better than his. He had the class not to ask to handle it.
February 18, 2010, 6:21 pmEcon_Scott says:
In the 70′s we had firearms freedom I think. We used to pheasant hunt and duck hunt from just before sunup until High School first period Gym. On good days we’d skip gym. And Usually we had to race to school in my buddy’s jeep from the fields to make class.
Since there was a fair amount of break ins in the HS parking lot, and his jeep didn’t have a trunk, we’d simply walk in the back entrance to the Locker Room put our field jackets, ammo and Shotguns in our football lockers, and our pheasants and ducks in the refrigerator in the coaches office.
No big deal.
You know where all this comes from don’t you ? The most popular book among 11 and 12 year old boys promoted in the public schools for over 6 decades.
“Johnny Tremain”; Promoting the notion that a dying 15 year old rilfeman can transfer the ownership of his rifle to another 15 year old … without permission or paperwork !
http://www.amazon.com/exec/obidos/ASIN/0440442508/thevolocons0d-20/
For this very reason, I’m sure the Brady Campaign considers “Johnny Tremain” one of the most dangerous books in America.
February 18, 2010, 7:18 pmLarryA says:
As late as 1966 virtually every high school in New York City had a rifle team. Students carried their rifles to and from school on the subway, and got about as much attention as the band kid with his trombone. There were city championships where students competed for college scholarships.
February 18, 2010, 8:45 pmJosh says:
As a 2L intern with a public defense office in Seattle, I am shocked that the lawyer didn’t do the Gunwall analysis. I’ve seen decision after decision in the caselaw where lawyers are just lazy asserting a State Constitutional Right that is quickly slapped down by Gunwall. How can you not do the Gunwall analysis? Yes, its extra work, but it gives you another bite at the apple to win. Either do the Gunwall analysis or don’t mention the state constitution you’re only losing credibility with the judge.
February 18, 2010, 10:24 pmlatinist says:
I’m no lawyer, and don’t know a ton about the subject, but the dissent’s number 1 (or is he summarizing a previous opinion? again, I’m not a lawyer) sounds like an awfully sketchy a fortiori to me. It doesn’t seem obvious to me that granting some minors the right to serve in the military is a greater concession than presuming that all minors should be trusted with guns in civilian life.
February 18, 2010, 10:43 pmJ. Aldridge says:
Interesting how so-called “rights” can have so many hidden “exceptions.”
February 18, 2010, 11:52 pmValentino Rossi says:
As a 17 year old in Illinois (before FOID became mandatory for firearms ownership), I bought a .308 Remington ADL without any parental note or signature. I didn’t try buying a pistol, but I don’t think that that would have been illegal.
February 19, 2010, 12:31 amMatthew Carberry says:
Didn’t the Federal “must be 21 to purchase a handgun from a licensed dealer” come in ’68?
Under current Alaska law, you are legal to possess a handgun at 16 (can’t buy private purchase until 18 but it can be gifted). Also under current law you are legal to carry a lawfully possessed firearm openly without a permit with no age restriction (concealed carry is at 21).
Thus, you can now lawfully open carry a lawfully possessed loaded handgun at 16 in Alaska.
Cleaning the blood that splashes up off the streets off my car is a pain though…
February 19, 2010, 3:53 amSayUncle » Minors and the right to arms says:
[...] Eugene Volokh looks at the Washington court’s decision. [...]
February 19, 2010, 9:11 amLarryA says:
Yup. The Omnibus Crime Control and Safe Streets Act prohibited interstate trade in handguns and increased the minimum age to 21 for buying handguns. Also in 1968 the Gun Control Act was signed into law, requiring serial numbers, limiting interstate firearm sales, denying ownership by felons and others, and limiting importation of “non-sporting” guns.
Before that it was pretty much “can you see over the counter.” I got my first .22 at age 11, in California.
February 19, 2010, 11:45 amih8tofly says:
With regards to firearms and military service for under 18 year-olds, yes, they may still enlist and possess firearms in furtherance of their military duties. However, they are no longer allowed to serve in combat until reaching the age of 18. I believe this changed around 2000-2001 with the signing of the Optional Protocol to the Convention on the Rights of the Child.
February 19, 2010, 3:07 pmChristopher Sieyes Got 10,000 Spoons When All He Needed Was a Knife « Countenance Blog says:
[...] Sieyes Got 10,000 Spoons When All He Needed Was a Knife 19 02 2010 Washington State’s Supremes rule that the application of a state felony law of unlawful possession of a firearm against one [...]
February 19, 2010, 4:25 pmDennis N says:
It was never a serious issue. By the time you get in, get through basic training and AIT, get into a unit and actually get deployed to a combat zone, the number of sub-18s must have been vanishingly small.
If we ever got stretched to the point of deploying 17 year olds, the rules would go out the window.
February 21, 2010, 2:34 pmAlbertE. says:
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard
From U.S. Code Ten.
Since this youth is at least seventeen years old, he is a member of the militia and entitled to 2nd Amendment rights.
February 27, 2010, 11:57 pmelectronic display says:
In fact during oral argument Sieyes’s counsel conceded the opposite. Furthermore Sieyes makes no adequate argument specific to the facts of this case that a 17-year-old’s Second Amendment right to keep and bear arms has been violated by this statute.
June 14, 2010, 2:13 am