The Volokh Conspiracy - The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older):

My right to bear arms article is quite long, so I don’t think I can serialize it on the blog the way I’ve done with some past articles. But I thought I’d blog about a few particularly interesting issues — often ones that are part of the “research agenda” aspect of the article, because my goal is just to identify the some of the key arguments, not to give a definitive answer.

Note that here, as in future posts, I use the scope / burden / reducing danger taxonomy I mention in the Introduction, and discuss at length in Part I of the article. (Short version: Scope arguments for restricting a right, which I think are often quite strong: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, or the background legal principles establishing who is entitled to various rights. Burden arguments for restricting a right, which I also think are often quite strong: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right. Reducing danger arguments for restricting a right, which I find troublesome for reasons I discuss at pp. 20-31: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified. This is where talk of intermediate scrutiny or strict scrutiny would normally fit, though, as Part I.C argues, such labels likely obscure more than they reveal.)

So with this, on to my first excerpt: The right to bear arms in self-defense — both under the Second Amendment and under the 40+ state constitutional provisions that secure such a right, often quite expressly — and young people, both under 18 and 18-to-20. I have omitted most of the footnotes; to see them, please look at the full article.

(Show the excerpt from the article.)

Scope and Burden: Many (but not all) states generally ban gun possession by under-18-year-olds, though they tend to have exceptions for hunting and targetshooting with a parent’s permission. These laws are serious burdens on the ability of under-18-year-olds to defend themselves. Older minors are just as likely to be violently attacked as are younger adults (and much more so than older adults), and 12-to-17-year-old girls are substantially more likely to be raped than young adult women. Moreover, both male and female minors are often home alone without adult protection, or out in public places, including in the car to and from work.

Nonetheless, it is also highly plausible that even older minors are more likely to misuse their guns, chiefly because their capacities for impulse control and thoughtful judgment haven’t fully matured. This avoiding danger argument of course is the justification for age cutoffs for various decisions, whether decisions that may jeopardize the minors’ own safety, or ones (such as about driving or drinking) that may jeopardize third parties. [Footnote: The driving age is generally 16 rather than 18, even though many more 16-and 17-year-olds die in car accidents than in gun accidents, gun suicides, or gun homicides. But this lower driving age is likely a concession to the practical reasons why parents want children to have cars (especially work and school), and not a considered judgment that 16-year-olds are generally mature enough to be entrusted with a wide range of adult responsibility.] And because the drafters of the Second Amendment likely saw this danger, it also seems to me that such bans on gun possession by minors can be justified by a scope argument: Minors generally have, and historically have had, lesser constitutional rights than adults do, [note 1 below] and the same should apply to the right to bear arms....

But what about 18-to-20-year-olds? The Illinois restrictions on all gun ownership by 18-to-20-year-olds surely qualify as a substantial burden. And under Heller, the same should be true for the more common restrictions on handgun ownership and acquisition by 18-to-20-year-olds: The availability of long guns as a self-defense option wouldn’t undo the “sever[ity of the] restriction,” for the same reasons that it didn’t do so in Heller. [Footnote: The South Carolina Supreme Court did hold that a ban on handgun possession by under-21-year-olds didn’t violate the state constitutional right to bear arms, “because persons under the age of 21 have access to other types of guns.” State v. Bolin, 662 S.E.2d 38, 39 (S.C. 2008). (Curiously, the court went on to still strike down the ban, because it violated S.C. Const. Art. XVII, § 14, which provided that “[e]very citizen who is eighteen years of age or older . . . shall be deemed sui juris and endowed with full legal rights and responsibilities.”). But I think Heller has the better view here, for reasons given in Part II.A.4; courts should recognize that handgun bans impose a substantial burden on state constitutional rights to keep and bear arms in self-defense as well as on the federal right.]

Yet regardless of the burden, there is also the scope question: Should constitutional rights be seen as fully vesting at age 18, or at age 21, in keeping with the historical tradition of 21 being the age of majority? (Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Or consider the Nebraska requirement of parental consent for marriage of under-19-year-olds, or the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.) The rule that majority begins at 21 endured until the early 1970s, so most right-to-bear-arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors.

I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors — lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights — involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds would warrant more research.

Reducing danger: The 18-to-20-year-old issue illustrates the importance of figuring out precisely why the less controversial restrictions on the under-18-year-olds and the mentally infirm are constitutional. If the reason for upholding the ban on possession by under-18-year-olds is the historical scope of constitutional rights, then that reason probably will not carry over to other age groups. It certainly wouldn’t carry over to, say, 22-year-olds. (In St. Louis, one can’t carry a gun on a public street until one is 23.) But it wouldn’t even carry over to 18-to-20-year-olds, unless 18-to-20-year-olds were historically not seen as full rightholders for the purposes of most constitutional rights, or of the right to keep and bear arms in particular.

But if the ban on possession by under-18-year-olds is upheld under a reducing danger argument, which is to say based on the plausible but unproven speculation that banning possession by 17-year-olds will diminish crime in a way that somehow outweighs the diminution in legitimate self-defense, then that argument could easily be applied more broadly. Most obviously, the same argument could be made, about as plausibly, about 18-year-olds or even about 22-year-olds. There’s a reason why auto insurance companies charge higher rates all the way up to age 25. And gun death rates remain fairly high into the 20s and late 30s, though the need for self-defense remains high then as well.

Moreover, the reducing danger argument could equally justify similar bans for any demographic group that can plausibly be seen as potentially more dangerous. Presumably race-based restrictions and likely even sex-based restrictions would violate the Equal Protection Clause, though of course violent crime is highly correlated with sex (quite likely partly for biological reasons related to sex, just as the correlation between violence and age is likely partly based on biology), and in considerable measure with race. But similar arguments could also be made about people who live in especially high-crime cities, or who don’t have high school degrees, or who have other possible demographic correlates of gun misuse.

It seems to me that these reducing danger arguments ought to be rejected as a normative matter. At least absent overwhelming statistical evidence, I don’t think that any class of mentally competent adults should be denied constitutional rights based on their demographic characteristics, as opposed to things they have personally done. But in any event, this question, and the relationship between the rights of 17-year-olds, 20-year-olds, and 22-year-olds illustrates the importance of distinguishing restrictions justified by the scope of the right from restrictions justified by a reducing danger rationale.

Note 1: Minors, for instance, generally don’t have the constitutional right to sexual autonomy, to marry, or to beget children, and are limited in their abortion rights. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (sexual autonomy and implicitly the right to beget children); Hodgson v. Minnesota, 497 U.S. 417 (1990) (abortion); Kirkpatrick v. Eighth Judicial Dist. Court ex rel. County of Clark, 64 P.3d 1056, 1060 (Nev. 2003) (marriage); In re R.L.C., 643 S.E.2d 920 (N.C. 2007) (sexual autonomy and implicitly the right to beget children). For a rare decision to the contrary, see B.B. v. State, 659 So.2d 256 (Fla. 1995), holding that 16-year-olds have a constitutional right to have sex with each other, though not with adults.

The law’s support for parental control over their minor children, something that would be a grave interference with liberty as to adults, tracks that. See, e.g., Cal. Welf. & Inst. Code § 601 (West 2008) (threatening a child “who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian” with being adjudged a “ward of the court”); Minn. State. Ann. § 609.06 subdiv. 1(6) (West 2003) (exempting reasonable force used by parents from criminal assault law); id. § 609.255 subdiv. 2 (West 2003) (defining false imprisonment to exclude conventional parental restraint of children); Brekke v. Wills, 23 Cal. Rptr. 3d 609, 613 (Ct. App. 2005) (upholding injunction barring sixteen-year-old girl’s ex-boyfriend, whom mother considered bad influence, from contacting her, partly on grounds that injunction helped protect “[mother’s] exercise of her fundamental right as parent to direct and control her daughter’s activities”); L.M. v. State, 610 So. 2d 1314 (Fla. Dist. Ct. App. 1992) (ordering, as condition of juvenile’s probation, that he obey his mother); Model Penal Code § 3.08 (providing that parents’ use of force is justified when done for “the purpose of safeguarding or promoting the welfare of the minor”).

The same is in some measure true for explicitly secured rights, such as free speech rights, at least where it comes to sexually themed expression. See Ginsberg v. New York, 390 U.S. 629, 636–37 (1968). And the law has long allowed children to be adjudged delinquent and basically imprisoned through the juvenile justice system, without the standard constitutional guarantees applicable to criminal proceedings. See McKeiver v. Pennsylvania, 403 U.S. 528, 550–51 (1971). This has been rationalized on the grounds that the proceedings are civil rather than criminal, see, for example, Ex Parte Crouse, 4 Whart. 9 (Pa. 1839), but it was precisely the presumed incapacity of the child that justified such civil proceedings.

On the other hand, when it comes to criminal prosecutions as opposed to juvenile court proceedings, minors have apparently generally had the same constitutional rights as adults. See Edward W. Spencer, A Treatise On The Law Of Domestic Relations § 628, at 549 (1911). And some sorts of constitutional rights, such as the right to have some judicial hearing before any imprisonment, including through the juvenile justice system, have apparently also been long extended to minors. See, e.g., Silas Jones, An Introduction to Legal Science 63 (1842).

(Hide the excerpt.)

	[Eugene Volokh, March 25, 2009 at 1:34pm] Trackbacks The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older): My right to bear arms article is quite long, so I don’t think I can serialize it on the blog the way I’ve done with some past articles. But I thought I’d blog about a few particularly interesting issues — often ones that are part of the “research agenda” aspect of the article, because my goal is just to identify the some of the key arguments, not to give a definitive answer. Note that here, as in future posts, I use the scope / burden / reducing danger taxonomy I mention in the Introduction, and discuss at length in Part I of the article. (Short version: Scope arguments for restricting a right, which I think are often quite strong: A restriction might not be covered by the constitutional text, the original meaning of the text, the traditional understanding of the text’s scope, or the background legal principles establishing who is entitled to various rights. Burden arguments for restricting a right, which I also think are often quite strong: A restriction might only slightly interfere with rightholders’ ability to get the benefits that the right secures, and thus might be a burden that doesn’t rise to the level of unconstitutionally “infring[ing]” the right. Reducing danger arguments for restricting a right, which I find troublesome for reasons I discuss at pp. 20-31: A restriction might reduce various dangers (in the case of arms possession, chiefly the dangers of crime and injury) so much that the court concludes that even a substantial burden is justified. This is where talk of intermediate scrutiny or strict scrutiny would normally fit, though, as Part I.C argues, such labels likely obscure more than they reveal.) So with this, on to my first excerpt: The right to bear arms in self-defense — both under the Second Amendment and under the 40+ state constitutional provisions that secure such a right, often quite expressly — and young people, both under 18 and 18-to-20. I have omitted most of the footnotes; to see them, please look at the full article. (Show the excerpt from the article.) Scope and Burden: Many (but not all) states generally ban gun possession by under-18-year-olds, though they tend to have exceptions for hunting and targetshooting with a parent’s permission. These laws are serious burdens on the ability of under-18-year-olds to defend themselves. Older minors are just as likely to be violently attacked as are younger adults (and much more so than older adults), and 12-to-17-year-old girls are substantially more likely to be raped than young adult women. Moreover, both male and female minors are often home alone without adult protection, or out in public places, including in the car to and from work. Nonetheless, it is also highly plausible that even older minors are more likely to misuse their guns, chiefly because their capacities for impulse control and thoughtful judgment haven’t fully matured. This avoiding danger argument of course is the justification for age cutoffs for various decisions, whether decisions that may jeopardize the minors’ own safety, or ones (such as about driving or drinking) that may jeopardize third parties. [Footnote: The driving age is generally 16 rather than 18, even though many more 16-and 17-year-olds die in car accidents than in gun accidents, gun suicides, or gun homicides. But this lower driving age is likely a concession to the practical reasons why parents want children to have cars (especially work and school), and not a considered judgment that 16-year-olds are generally mature enough to be entrusted with a wide range of adult responsibility.] And because the drafters of the Second Amendment likely saw this danger, it also seems to me that such bans on gun possession by minors can be justified by a scope argument: Minors generally have, and historically have had, lesser constitutional rights than adults do, [note 1 below] and the same should apply to the right to bear arms.... But what about 18-to-20-year-olds? The Illinois restrictions on all gun ownership by 18-to-20-year-olds surely qualify as a substantial burden. And under Heller, the same should be true for the more common restrictions on handgun ownership and acquisition by 18-to-20-year-olds: The availability of long guns as a self-defense option wouldn’t undo the “sever[ity of the] restriction,” for the same reasons that it didn’t do so in Heller. [Footnote: The South Carolina Supreme Court did hold that a ban on handgun possession by under-21-year-olds didn’t violate the state constitutional right to bear arms, “because persons under the age of 21 have access to other types of guns.” State v. Bolin, 662 S.E.2d 38, 39 (S.C. 2008). (Curiously, the court went on to still strike down the ban, because it violated S.C. Const. Art. XVII, § 14, which provided that “[e]very citizen who is eighteen years of age or older . . . shall be deemed sui juris and endowed with full legal rights and responsibilities.”). But I think Heller has the better view here, for reasons given in Part II.A.4; courts should recognize that handgun bans impose a substantial burden on state constitutional rights to keep and bear arms in self-defense as well as on the federal right.] Yet regardless of the burden, there is also the scope question: Should constitutional rights be seen as fully vesting at age 18, or at age 21, in keeping with the historical tradition of 21 being the age of majority? (Consider, in the First Amendment context, a recent proposal to set 21 as the age of consent for being filmed or photographed naked or in sexual contexts, and the possibility that this is already the law in Mississippi and as to under-19-year-olds in Nebraska. Or consider the Nebraska requirement of parental consent for marriage of under-19-year-olds, or the Alaska law barring possession of marijuana by under-19-year-olds even though the Alaska Supreme Court has interpreted the Alaska Constitution’s right to privacy as securing adults’ right to possess small quantities of marijuana at home.) The rule that majority begins at 21 endured until the early 1970s, so most right-to-bear-arms provisions were thus enacted while 18-to-20-year-olds were technically treated as minors. I’m skeptical about this argument, because the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors — lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights — involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections. At the same time, for much of our nation’s history, the right to contract was seen as an important constitutional guarantee, and that right was not fully secured to 18-to-20-year-olds. The matter of the historical constitutional rights of 18-to-20-year-olds would warrant more research. Reducing danger: The 18-to-20-year-old issue illustrates the importance of figuring out precisely why the less controversial restrictions on the under-18-year-olds and the mentally infirm are constitutional. If the reason for upholding the ban on possession by under-18-year-olds is the historical scope of constitutional rights, then that reason probably will not carry over to other age groups. It certainly wouldn’t carry over to, say, 22-year-olds. (In St. Louis, one can’t carry a gun on a public street until one is 23.) But it wouldn’t even carry over to 18-to-20-year-olds, unless 18-to-20-year-olds were historically not seen as full rightholders for the purposes of most constitutional rights, or of the right to keep and bear arms in particular. But if the ban on possession by under-18-year-olds is upheld under a reducing danger argument, which is to say based on the plausible but unproven speculation that banning possession by 17-year-olds will diminish crime in a way that somehow outweighs the diminution in legitimate self-defense, then that argument could easily be applied more broadly. Most obviously, the same argument could be made, about as plausibly, about 18-year-olds or even about 22-year-olds. There’s a reason why auto insurance companies charge higher rates all the way up to age 25. And gun death rates remain fairly high into the 20s and late 30s, though the need for self-defense remains high then as well. Moreover, the reducing danger argument could equally justify similar bans for any demographic group that can plausibly be seen as potentially more dangerous. Presumably race-based restrictions and likely even sex-based restrictions would violate the Equal Protection Clause, though of course violent crime is highly correlated with sex (quite likely partly for biological reasons related to sex, just as the correlation between violence and age is likely partly based on biology), and in considerable measure with race. But similar arguments could also be made about people who live in especially high-crime cities, or who don’t have high school degrees, or who have other possible demographic correlates of gun misuse. It seems to me that these reducing danger arguments ought to be rejected as a normative matter. At least absent overwhelming statistical evidence, I don’t think that any class of mentally competent adults should be denied constitutional rights based on their demographic characteristics, as opposed to things they have personally done. But in any event, this question, and the relationship between the rights of 17-year-olds, 20-year-olds, and 22-year-olds illustrates the importance of distinguishing restrictions justified by the scope of the right from restrictions justified by a reducing danger rationale. Note 1: Minors, for instance, generally don’t have the constitutional right to sexual autonomy, to marry, or to beget children, and are limited in their abortion rights. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (sexual autonomy and implicitly the right to beget children); Hodgson v. Minnesota, 497 U.S. 417 (1990) (abortion); Kirkpatrick v. Eighth Judicial Dist. Court ex rel. County of Clark, 64 P.3d 1056, 1060 (Nev. 2003) (marriage); In re R.L.C., 643 S.E.2d 920 (N.C. 2007) (sexual autonomy and implicitly the right to beget children). For a rare decision to the contrary, see B.B. v. State, 659 So.2d 256 (Fla. 1995), holding that 16-year-olds have a constitutional right to have sex with each other, though not with adults. The law’s support for parental control over their minor children, something that would be a grave interference with liberty as to adults, tracks that. See, e.g., Cal. Welf. & Inst. Code § 601 (West 2008) (threatening a child “who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian” with being adjudged a “ward of the court”); Minn. State. Ann. § 609.06 subdiv. 1(6) (West 2003) (exempting reasonable force used by parents from criminal assault law); id. § 609.255 subdiv. 2 (West 2003) (defining false imprisonment to exclude conventional parental restraint of children); Brekke v. Wills, 23 Cal. Rptr. 3d 609, 613 (Ct. App. 2005) (upholding injunction barring sixteen-year-old girl’s ex-boyfriend, whom mother considered bad influence, from contacting her, partly on grounds that injunction helped protect “[mother’s] exercise of her fundamental right as parent to direct and control her daughter’s activities”); L.M. v. State, 610 So. 2d 1314 (Fla. Dist. Ct. App. 1992) (ordering, as condition of juvenile’s probation, that he obey his mother); Model Penal Code § 3.08 (providing that parents’ use of force is justified when done for “the purpose of safeguarding or promoting the welfare of the minor”). The same is in some measure true for explicitly secured rights, such as free speech rights, at least where it comes to sexually themed expression. See Ginsberg v. New York, 390 U.S. 629, 636–37 (1968). And the law has long allowed children to be adjudged delinquent and basically imprisoned through the juvenile justice system, without the standard constitutional guarantees applicable to criminal proceedings. See McKeiver v. Pennsylvania, 403 U.S. 528, 550–51 (1971). This has been rationalized on the grounds that the proceedings are civil rather than criminal, see, for example, Ex Parte Crouse, 4 Whart. 9 (Pa. 1839), but it was precisely the presumed incapacity of the child that justified such civil proceedings. On the other hand, when it comes to criminal prosecutions as opposed to juvenile court proceedings, minors have apparently generally had the same constitutional rights as adults. See Edward W. Spencer, A Treatise On The Law Of Domestic Relations § 628, at 549 (1911). And some sorts of constitutional rights, such as the right to have some judicial hearing before any imprisonment, including through the juvenile justice system, have apparently also been long extended to minors. See, e.g., Silas Jones, An Introduction to Legal Science 63 (1842). (Hide the excerpt.) Related Posts (on one page): The Right To Keep and Bear Arms in Self-Defense and Government Tracking Regulations: The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or Regulations That Indirectly Raise Gun or Ammunition Prices: The Right To Keep and Bear Arms in Self-Defense and Waiting Periods: The Right To Keep and Bear Arms in Self-Defense and Bans on Carrying Guns Outside the Home: The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older): Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda: