The Second Amendment and the Parkland Shooting

I gave my Constitutional Law Exam yesterday. Here was one of the questions:

In March 2018, Florida enacted a law that (among other things) raised the minimum age for purchasing a firearm from 18 to 21. The National Rifle Association (NRA) filed a federal lawsuit in response alleging that prohibiting people between 18 and 21 from buying any gun violates the Second Amendment right recognized in Hellerand extended to the states by McDonald. The complaint also alleges that the age restriction as applied to women violates the Equal Protection Clause “[b]ecause females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting such as the one that occurred at Marjory Stoneman Douglas High School, or, for that matter, a violent crime of any kind.” Please assess the likelihood of success of these claims.

The equal protection claim is rather weak. Not long after the NRA filed this suit, a woman did perpetrate a mass shooting at You Tube headquarters. The fact that men are far more likely to engage in gun violence does not, to my mind, mean that the state lacks the power to restrict firearms for similarly situated women.

The Heller claim, though, strikes me as strong. A law barring everyone under 21 from owning any type of gun is hard to square with the Second Amendment right recognized by the Supreme Court. With the exception of alcohol sales, the age of majority in the United States is 18. The Twenty-Sixth Amendment recognizes this as the relevant age for assessing the right to vote. In part, that is because the military draft applies at 18. And there are other cases, such as when capital punishment can be imposed, that recognize 18 as the baseline.

Perhaps there is some history or tradition of restricting gun sales to people under the age of 21. If so, then that could be used to uphold the Florida statute given that Heller emphasized that traditional restrictions on gun ownership were still valid. Of course, you might say that such a history just reflects the fact that the age of majority used to be 21 and thus is not terribly relevant to modern conditions.

Anyway, I’ll be curious to see what arguments Florida puts forward as the litigation moves forward.


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15 Responses

  1. Brett Bellmore says:

    The equal protection argument is extremely weak, not the least because the ERA we’ve been discussing never did get ratified, so discrimination on the basis of sex actually isn’t constitutionally prohibited. And, at some point, that has to mean something. It might have some relevance if you were doing rational basis analysis, if rational basis were actually about rationality. (Rather than being more of a “Not gibbering insanity” basis in practice.)

    You would think it this law would be doomed by the Heller claim, but the lower courts are not exactly reliable in applying it. I might be wrong, but I believe the 11th circuit is currently subjecting 2nd amendment cases to a very low level of scrutiny, something akin to rational basis.

  2. Brett Bellmore says:

    By the way, far from there being a tradition of restricting gun purchases by those under 21, for most of our nation’s history, even children could buy guns, if they had the money. Mail order, even.

    As a child, I could have bought things which I can’t legally buy as an adult anymore.

    People tend not to realize that the modern gun control laws they take for granted are mostly of recent origin.

  3. Joe says:

    “The equal protection argument is extremely weak, not the least because the ERA we’ve been discussing never did get ratified, so discrimination on the basis of sex actually isn’t constitutionally prohibited.”

    An amendment that was not ratified in 1982 is a weak determinant on what something passed in 1868 means. If there is an attempt to clearly say “The right of the people to individually own firearm for personal self defense” per an amendment fails in let’s say 2021, does that mean there isn’t an individual right in that sense?

    As to gun regulations, there were gun regulations of various types from the beginning. Specific types might be new but as noted in Patrick Charles’ recent book, e.g., there were a myriad of 19th Century regulations. To be fair here, the assumptions made on what is and is not legitimate assumed away in Heller is fairly thin gruel in some ways.

  4. Joe says:

    Citing a single case of a woman shooting is not enough to address a general argument. The 18-21 age group also was the issue in Craig v. Boren, involving different rules for men/women as to beer. A few cases was not enough to justify that regulation. I don’t think a general regulation can be divided in that fashion at any rate. Women don’t commit certain types of crimes generally as much as men but the laws still are valid. They use women see unlike age, sex, is put to heightened scrutiny.

    I do find this sort of regulation dubious (and the 26A does seem relevant) under Heller but looking into it did find a Fifth Circuit that cited history to uphold a regulation that draws the line at 21:

  5. Rick's Morty says:

    Isn’t there history or tradition in America letting 19 year-olds drink? In fact, can’t 19-year-olds drink in EVERY OTHER NATION ON EARTH AND EVERY OTHER PLANET except the United States?

  6. Henry Cohen says:

    Isn’t the issue the reasonableness of the particular restriction? In other words, is the risk of people 18 to 21 purchasing firearms significantly greater than the risk of people 21 and older purchasing them? I don’t see the relevance of the age of majority in other situations.

    • Brett Bellmore says:

      That would be the issue if we weren’t talking about a basic, enumerated civil liberty. But that’s the problem here: A lot of the lower courts still don’t want to treat gun ownership as a real civil right, an the Supreme Court is doing nothing to stop them.

  7. John says:

    I believe that it is necessary to abolish the free use of weapons, or to tighten the controversy for those who are given permission to own weapons, and rather the more reasonable will be the second option. Because a person will always find what he needs, especially in our country. The best example of this is drugs, they were always banned, but they were always easy to get. A weapon, in our country is necessary, I believe. My friend from had a case when two bandits attacked him and his girlfriend and if they had no weapons with them they would have been beaten and taken all the money.

    • Henry Cohen says:

      No doubt there are occasions when a weapon is necessary to shoot a bad guy. The question is whether there are more occasions when a weapon is fired accidentally, used by a small child, stolen by a criminal, used in a suicide, used in anger by one spouse against another–in other words, does the free availability of weapons do more harm than good?

      • Brett Bellmore says:

        This would be an interesting question, were we debating adding a right to keep and bear arms to the Constitution, or repealing it.

        But, it’s already in there, and whether or not to enforce it implicates issues larger than the effects of the clause in question, such as the rule of law, and how, once you’ve decided valid parts of the Constitution won’t be enforced, you limit this to only ‘harmful’ parts.

        However, playing the game, there’s a well established problem with firearms prohibitions that needs to be taken into account: They are most effective at disarming those least likely to cause harm, and least effective at disarming those most likely to cause harm.

        So, even if you might theoretically see some gain if you could magically disarm everybody, in practice the costs far exceed the gains, because first you disarm the law abiding, leaving them vulnerable, and only by strenuous effort even partially disarm the criminals.

        And, in the process, render many formerly law abiding people criminals…

        • Henry Cohen says:

          If, in fact, the availability of guns to law-abiding people causes them more harm (for the reasons I listed and others) than good (from being able to shoot criminals), then disarming them leaves them, overall, not more vulnerable, but safer. Your argument, therefore, begs the question by assuming the conclusion it seeks to prove.

          Also, disarming is only one issue. Prohibiting currently legal sales is another, and that can be as effective in preventing sales to bad guys as good guys.

          • Brett Bellmore says:

            I apologize: I failed to fully engage with your comment.

            To be clear, the evidence that the availability of guns to law abiding people doesn’t cause them more harm than good is extensive. It’s a well established point in criminology, which is why when the gun control movement crafts ‘studies’ to claim the opposite, they generally find someplace other than journals of criminology to publish them, as they need a totally credulous review to get published.

            So I’d assumed you were talking about harm caused by criminals, in as much as it’s virtually all of the harm.

            The accidental death rate from firearms is low. Really low; You’re talking about 500 or so deaths each year in a country of well over 300 million people. There’s no age category in which several times as many people don’t, for instance, drown in swimming pools or even bathtubs, as die of an accidental shooting. Plastic bags are far more likely to cause accidental deaths.

            Suicide is a special case, because the evidence demonstrates that, while a lot of people use guns to commit suicide, they still kill themselves if you somehow deny them a gun. Most of the correlation between guns and suicide appears to be due to people who decide to commit suicide, and then go out and buy a gun. The correlation vanishes a few months after a person’s first gun is purchased.

            So, while the guns can be a means to commit suicide, they aren’t a cause of it.

            Again, criminology demonstrates that almost all violent crime is committed by a tiny minority of the population. So guns do not enhance the chance of violence by normal people.

            And it is also well established that guns are used in self defense many tens, even hundreds, of thousands of times a year. So the countering benefits are large, even if you totally ignore recreational uses.

            Really, it’s all about the criminals, and they are the last people you’d succeed in disarming.

  8. Phil says:

    @ john
    Drugs were not always banned. That is a ridiculous assertion. The original recipe for Coca-Cola contained cocaine. The federal government taxed marijuana sales long before it claimed it was a banned narcotic.