The First Circuit Court of Appeals, which covers the states of Massachusetts, Maine, New Hampshire, and Rhode Island, has upheld the ban on possession of handguns by juveniles. You can read the opinion here. I’m happy the Circuit Court in this case took the time to do a careful analysis and lay out its reasoning for upholding the law against the Second Amendment claim.
The Circuit Court basically took a two pronged argument, showing that there are many longstanding state analogues to the federal law that go back to the post-Civil War era, and also hypothesizing that the founders would have intended juvenile possession to be outside the protections of the Second Amendment, using state laws that exempted children from militia service as evidence of their unsuitability to bear arms. Never mind those statutes also exempted women and the elderly. I’m also not pleased to see the Circuit Court adopt Saul Cornell’s “civic right” characterization of the Second Amendment. But it is at least treating the subject seriously, not just pulling some dicta from Heller that seems to support the position and being done with it.
The Circuit Court also points out the claim made by the appellant in this case that the YHSA is identical to the prohibition in DC is incorrect, considering the YHSA contains exceptions for possession for self-defense in the home, and for supervised possession for other lawful purposes, which the DC law did not. An interesting argument would be what if the YHSA had not done this, but simply banned handgun possession by minors in its entirety? Surely juveniles have to retain some right to keep and bear arms, even if that right is more limited than that of an adult.
What’s more disappointing is the failure of the commerce clause arguments. I guess it’s time to admit that Lopez only means Congress needs to be more careful drafting laws, rather than actually preserving any semblance of federalism. Juvenile possession is not properly regulated the federal level. Many states, including Pennsylvania, allow juvenile possession under limited circumstances, but less limited than the federal standard. For example, the federal statute covers handgun ammunition, but there’s so such provision in Pennsylvania’s Uniform Firearms Act, which only restricts possession of handguns to minors, which exceptions. The federal statute also requires written consent, which the UFA also does not require. This potentially opens up the possibility of a juvenile being in legal possession in his state, but still subject to federal prosecution because his parents did not fulfill one of the federal requirements, or fell out of one of the federal exceptions.
Actually, when we decided that the age of majority was 18 and not 21 (as it was in the Founders’ time), we opened ourselves up to all sorts of issues, namely, “Well, at 18 they’re old enough to be trusted to do THIS but not THAT” — e.g. driving, drinking liquor, voting, owning handguns, to name just four contradictory permissions/prohibitions.
Far better to repeal Amendment XXVI and make driving the ONLY exception to majority age 21.
That is already the case with felons in the state of Texas. State law provides that felons may possess a firearm five years after they complete their probation, parole or prison term. Federal law differs of course.
Wow, I thought I was the only person who wanted Amendment XXVI repealed…