Under-18-Year-Olds and the Right to Keep and Bear Arms

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

  1. 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,
  2. strict scrutiny should be applied to restrictions on the right to keep and bear arms,
  3. 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,
  4. “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.)