On Friday afternoon, Florida’s Republican Gov. Rick Scott signed a measure that prohibits any individual under 21 from purchasing a firearm. That evening, the National Rifle Association filed a lawsuit arguing the law violates the constitutional rights of Floridians age 18–20, who could previously buy rifles, though not handguns, in the state. Then, on Monday morning, President Donald Trump retracted his previous support, expressed in the immediate aftermath of the Parkland school shooting, for raising the federal age limit to 21 for all firearms. In a tweet, Trump declared that he would watch “court cases and rulings before acting” on the issue—a likely reference to the Florida litigation.
The NRA will almost certainly lose its Florida lawsuit within the next few months. But by that point, the legal challenge will have already served its purpose: to create the false impression that laws like the one Scott just signed are constitutionally dubious. The NRA likely hopes that by the time the judiciary has approved this Florida law, momentum for federal gun control legislation will have slowed. And then, having bought all the time it needed, the NRA should be able to coax Trump into abandoning his raise-the-age policy altogether.
In its lawsuit, the NRA depicts Florida’s new age limit as a radical attack on the Second Amendment. It isn’t. Since 1968, federal law has prohibited licensed firearm dealers from selling handguns to anyone under 21. Federal law, though, sets a lower floor for the sale of long guns, allowing anyone 18 or older to purchase these weapons. Long guns include extraordinarily dangerous rifles like the AR-15, mass shooters’ weapon of choice. To plug this gap, a pair of states, Hawaii and Illinois, have raised the long-gun age to 21. D.C. has, too, absent consent from a parent willing to assume liability.
The NRA, which alleges that even slight burdens on the right to bear arms violate the Second Amendment, has not attacked these laws in court. Why not? After all, the Supreme Court ruled in D.C. v. Heller and McDonald v. Chicago that the government cannot impose a total ban on firearms that are used in the home for self-defense. Yet Florida now joins several other jurisdictions in barring adults from the ages of 18 through 20 from buying any firearms. Doesn’t that run afoul of Supreme Court precedent?
In its new suit, the NRA argues that Florida’s ban does, indeed, infringe on the Second Amendment. It also claims, bizarrely, that the law violates the principle of equal protection by unfairly burdening women, who are statistically less likely to commit gun violence. That argument cannot be taken seriously, because laws that disproportionately burden women pass constitutional muster so long as they are not outwardly gender-based or motivated by sexism. The NRA’s primary claim, that 18- to 20-year-old adults must be able to buy some kind of gun, is a closer call. But under Heller and McDonald, it should still fail.
In Heller, the court noted that “nothing in our opinion should be taken to cast doubt” on “laws imposing conditions and qualifications on the commercial sale of arms.” Thus, the Second Amendment allows states to establish a wide range of “presumptively lawful … conditions and qualifications” on gun sales. Does Florida’s new law fall within that range? In McDonald, the court wrote that we should assess the historical record to determine when a contemporary gun restriction violates the Constitution. Justice Clarence Thomas’ decisive concurring opinion added that we must “discern the most likely public understanding” of the Second and 14th Amendments to gauge the legality of any gun control measure. As Thomas explained elsewhere, the Constitution’s “meaning does not alter. … That which it meant when adopted, it means now.”
So, in 1791 (when the Second Amendment was adopted) and 1868 (when it was applied to the states through the 14th Amendment), did the American public understand it to let those under 21 bear arms? The answer is a resounding no. In most states, for most of American history, the age of majority was 21. (Well, technically, it was 21 minus a day, due to a long-forgotten feudal mode of counting; we’ll stick with 21 for simplicity’s sake.) The United States inherited this rule from the English common law, which held 21 as the age of majority for centuries.
For most of American history, states stringently limited the rights of those under 21. Before reaching that age, Americans were generally barred from entering into contracts, inheriting property, or casting a ballot. In some states, minors could serve on militias, much as members of the armed forces today are exempt from certain gun laws. But as a Duke Law repository of historical gun restrictions illustrates, plenty of states have long prohibited minors from purchasing deadly weapons. Most of these laws refer to “minors” or “minors under age,” which would have encompassed individuals under 21. Some laws passed in the 1800s explicitly ban the sale of firearms to anyone under 21.
In light of this historical evidence, “the most likely public understanding” of the Second and 14th Amendments is one that allows states to forbid those younger than 21 from buying firearms. A more progressive mode of constitutional interpretation might account for America’s evolving conception of adulthood, which most (though not all) states now set at 18. But in its gun cases, the Supreme Court has instructed us to look backward. And when the relevant constitutional provisions were ratified, the full rights of adulthood—including, in many states, the right to buy a gun for personal use—did not attach until age 21.
The NRA’s lawsuit has been assigned to Judge Mark Walker, a fair-minded Obama appointee who will probably rule in favor of Florida. If the NRA appeals, it will face the 11th U.S. Circuit Court of Appeals, which does not apply heightened scrutiny to regulations, like this one, that are “presumptively lawful” under Heller. After that, the NRA’s only option is the Supreme Court. The justices haven’t heard a gun case since 2010. Do they really want to wade back into the debate with a law passed in the wake of a school shooting—a law that might’ve saved the students’ lives?
Of course they won’t. The NRA isn’t expecting them to. Instead, the organization is using this lawsuit to cast doubt, at least temporarily, over the possibility of imposing age restrictions on gun sales. This tactic has already given Trump the cover he needs to back away from the idea of imposing a higher federal floor on long-gun sales. Gun safety advocates may celebrate when the courts reject the NRA’s argument and uphold Florida’s law. But the reality is that the NRA’s suit has already served its immediate purpose.
One more thing
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