Posted by Eugene Volokh:
The Right To Bear Arms, Minors, and 18-to-20-Year-Olds (and Maybe Even Older):
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238002485
My [1]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 [2]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 [3]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 [4]the full
article.
([5]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).
([6]Hide the excerpt.)
References
1. http://www.law.ucla.edu/volokh/2am.pdf
2. http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238001528
3. http://www.law.ucla.edu/volokh/2am.pdf
4. http://www.law.ucla.edu/volokh/2am.pdf
5. file://localhost/var/www/powerblogs/volokh/posts/1238002485.html
6. file://localhost/var/www/powerblogs/volokh/posts/1238002485.html
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