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More on the Right To Bear Arms and Nonlethal Weapons Bans:

Again, for more details, please see the article draft.

Minors: Minors have some constitutional rights, like many aspects of the freedom of speech, and the right to have the criminal charges against them proved beyond a reasonable doubt. But they entirely lack other rights, such as the right to marry, to exercise sexual autonomy, or to access sexually themed publications. And they have weaker versions of other rights, such as the right to abortion.

It seems quite likely — and sensible — that minors would be seen as outside the scope of the right to bear arms where deadly weapons are concerned. While no right-to-bear-arms provision expressly excludes minors, it seems likely that such provisions were enacted with an understanding that minors did not have all the constitutional rights that adults have. This background understanding likely reflected a judgment that minors weren't mature enough to fully appreciate the consequences of their actions, a judgment that could apply to minors' potential dangerousness to others, as well as to themselves. And such a judgment particularly supports limits on minors' rights when the minors' immaturity could mean unnecessary death.

Nonetheless, it's not clear that the same general principle should be applied to minors and nonlethal weapons. A minor's immature misuse of nonlethal weapons is much less dangerous than the minor's immature use of guns. And, as importantly, denying the minor the tools needed for self-defense is much more dangerous to the minor than is delaying the minor's ability to legally have sex, have children, or view pornography. One reason that contraceptive rights and abortion rights — once accepted (however controversially) for adults — were extended to minors is that denying minors such a right risks irreversible and harmful changes to the minors' lives:

The pregnant minor's options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it. A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.

Moreover, the potentially severe detriment facing a pregnant woman is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.... In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.

The same would apply to tools that defend against assault, rape, and murder, as well as to tools that defend against unwanted pregnancy and childbirth. Delaying the right to use such tools until the minor is 18 may equal denying the minor the right when she most needs it, and having likewise "grave and indelible" consequences.

The constitutional rights of minors are a difficult matter, which I've only touched on here. I feel comfortable, as I suggested above, that the majority American view as to stun guns (allow possession at least by 16-year-olds and generally even somewhat younger minors, with parental permission) and the nearly unanimous American view as to irritant sprays (allow possession by minors generally) is sound policy. I'm not as confident that this should be seen as a constitutional principle. Still, the contraceptive and abortion rights cases generally suggest that the rights of minors, especially older minors, to keep and bear nonlethal defensive weapons can't be lightly rejected.

/:
"Well-regulated" means trained and equipped, not stripped. If somebody has proven themselves incapable of handling firearms after being capable of receiving training, then they've done something bad enough to be locked away.

But that hasn't stopped the long-standing tradition of reading the Constitution and thinking the opposite.
4.21.2009 5:55pm
phants (mail):
"It seems quite likely -- and sensible -- that minors would be seen as outside the scope of the right to bear arms where deadly weapons are concerned."

What's wrong with a simple "We don't know" or "we haven't estabilshed..."instead of "seems quite likely..." The matter of being sensible then would not be an automatic premise that pre-establishes a position.

We seem to forget (conveniently?) that in our "early years" the roles and therefore the view of "children" were very different. When families depended upon water carried from the creek, wood split for warmth and cooking, and hunting as well as gardening for food, that "youngsters" did their share of all of this - and then some...

There are many families that survived with what we now consider "children" not only hunting, sometimes with their own firearms, but splitting wood with those axes as well. they were also, to address your comparison, marrying at "children's ages."

Address the issue - not the assumptions..!
4.21.2009 5:59pm
Jon Roland (mail) (www):
The post misses a subtle but important point. The minors have those rights, but the exercise of them is disabled until they pass majority, or have their disabilities of minority removed by court order or statute (such as by marrying with parental consent), or have them extended by a court.

Similarly in times past there were disabilities of coverture, servitude, dependency, or incompetence.

It is not correct to said rights are removed from someone. If they were they couldn't be restored. The correct expression is that rights may be disabled or the disabilities removed.
4.21.2009 6:10pm
LarryA (mail) (www):
A little OT:
While no right-to-bear-arms provision expressly excludes minors, it seems likely that such provisions were enacted with an understanding that minors did not have all the constitutional rights that adults have.
Should an 11-year-old have a CHL? Probably not. But I was 11 the year Santa left me a .22 rifle under the tree. Initially I used it under supervision, but by the time I was 15 or so it was mine.

I once interviewed a gentleman from my father’s generation. During the depression, at age 11, he took his .22 to school, along with a couple of cartridges. His after-school job was to cut through the woods on the way home and, if he could bag a squirrel or rabbit, put meat on the supper table.

Not having a full RKBA is not equal to prohibiting children access to all firearms.

Closer to OT: when I was 8 I joined the Cub Scouts. We wore our uniforms to school on Den Meeting day. Part of that uniform, after we passed our Tote’n Chip, was the Cub Scout pocket knife. It hung on a brass clip from our web belt down into our front pocket. At school it was no big deal, I actually remember teachers asking me to cut string or open cardboard boxes, etc.

Today forgetting a butter knife in the back seat of a car will get high school honor students suspended.

I exercised more personal responsibility in the third grade than we today allow high school seniors, and I’ve heard the anti “weapon” philosophy (pocket knives) is spreading to the college level.

Sad. Really sad.
4.21.2009 6:10pm
jviss (mail):

"it seems likely that such provisions were enacted with an understanding that minors did not have all the constitutional rights that adults have. This background understanding likely reflected a judgment that minors weren’t mature enough to fully appreciate the consequences of their actions, a judgment that could apply to minors’ potential dangerousness to others, as well as to themselves. And such a judgment particularly supports limits on minors’ rights when the minors’ immaturity could mean unnecessary death"


I disagree with this, and must remark that it is loaded with fallacy. The agreement as sensible with the premise taken out of thin air that is likely; that minors are necessarily immature; and so on.

Personally, I prefer a society where we hold young people accountable, and teach them responsibility at an early age, and not coddle them, and treat them as infants well into their teens (and beyond). Young people can responsibly own, keep, and use firearms, perhaps as young as 12 (depending on the kid); and certainly did in colonial times.

I assert that it seems quite likely that minors were in scope when the 2nd Amendment was written.
4.21.2009 6:23pm
zippypinhead:
Professor Volokh, Jim Roland is technically correct, the rights of minors and felons are "disabled," not removed or extinguished. In both cases the rights can be restored (leaving aside the permanent Congressional defunding of BATFE relief from disabilities activities under 18 U.S.C. §925(c), of course). It would be best to correct the terminology in this article before publication.

At least in my state, minors do have some rights to possess firearms, albeit with parental permission and supervision. Federal law prohibits transfer of firearms to minors by a FFL, but I am free to "give" my child a firearm, provided I assume the burden of supervising him, retain legal ownership, and am willing to assume the liability if the firearm is misused (not unlike the legally operative effect of giving my teenager my car keys).

Incidentally, LarryA - I, too, remember wearing a pocket knife on my Cub Scout uniform at school after earning my Whittlin' Chip patch (not Totin' Chip - that's for Boy Scouts, and includes other woods tools like axes and bowsaws). Unfortunately, my third grade teacher confiscated my pocket knife, not because she was concerned about it being a dangerous weapon on school property, but because she (correctly) perceived that 9-year old boys simply can't resist carving their initials into their desks. Funny thing is, my parents seemed to be on her side... clearly an Evil Adult Conspiracy!
4.21.2009 6:36pm
zippypinhead:
On the felon-in-possession point (the hidden part of this post unless you click the expansion link):

One piece of legal trivia that is (IMHO) fascinating but largely overlooked, is that not ALL felons lose their firearms possession rights under 18 U.S.C. §922(g)(1). In fact, §921(a)(20)(A) specifically exempts "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices..."

Given that criminal violations of the Sherman Act, 15 U.S.C. §1, can be punishable by up to 10 years imprisonment and a $1 million fine, it would seem to be a significant concession that at least this subset of non-violent felons has been deemed non-dangerous enough to be able to retain Second Amendment rights. And since your garden-variety bid-rigging conspiracy under the Sherman Act is fundamentally fraudulent conduct that almost always also meets the elements for mail or wire fraud, there are some interesting questions raised by in effect permitting a prosecutor to control whether a defendant faces a Constitutional rights disability, based solely on which statute is charged.
4.21.2009 6:53pm
pintler:

any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices...


That has always seemed a little unseemly. The difference between Ken Lay and someone who passes a bad check large enough to be a felony is ... he stole a lot more money.
4.21.2009 7:45pm
Kirk:
pintler,

Indeed, at first glance I don't see where the person passing bad checks is inherently likely to be at risk for committing violent crime.
4.21.2009 8:31pm
Bill Poser (mail) (www):
A friend of mine here in Northern British Columbia is a Carrier Indian. He trapped with his father for some time, then, when he was 14, his father sent him out alone for the entire winter. That meant staying at best in a cabin on the trapline, often camping out, alone the entire time, cooking his own meals, hunting for most of his food, and of course tending the trapline and skinning the animals he caught.He didn't see his father at all, but about once a month his father would leave him a little flour, sugar, and tea along the trail. Of course he had a rifle, for hunting, self-defense, and killing any trapped animals that were still alive. Different cultures have different ideas about maturity.
4.21.2009 9:46pm
comatus (mail):
Look, I won't bore you with war stories from 40 years ago. Suffice it that experience has shown that a minor, otherwise peaceable and law-abiding, may nevertheless end up in situations where the presence (or the threat) of a firearm may be the only defense against deadly assault. You don't have enough police or teachers to patrol the lives of teenagers, no matter how they try to avoid danger. It is possible for police and teachers to be part of the problem. No town or school, however lily-white and reputation-proud, is free of the passions and politics that can make a young person a target. To totally and categorically deny self-defense to the young is, in the rare and regrettable case, a death sentence. Rare death is just as dead.

"Encumber" and "disable" this right as seems reasonable to you. But you may not write the young out of the constitution because they are young. I am here today, at advanced age, to tell this, because.I.had.a.gun.
4.22.2009 12:20am

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