Age Restrictions and the Right to Keep and Bear Arms, 1791–1868
By MEGAN WALSH AND SAUL CORNELL. Full Text.
The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history.
While minimum age gun laws routinely survived constitutional challenges before the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, the majority of courts applying Bruen have struck down firearms restrictions based on age. Bruen fundamentally altered the way courts evaluate the constitutionality of firearms regulations, requiring them to judge modern gun laws based on history, text, and tradition. As Bruen requires, courts have turned to history to adjudicate these challenges. Unfortunately, many courts have discounted the relevant history and tradition.
At the time of the Founding, individuals under the age of twenty-one were viewed as lacking sufficient judgment to make responsible decisions. These individuals, categorized as “infants” at the time, were unquestionably not full members of the political community. Their ability to contract was limited, which prevented them from obtaining arms without the assistance of parents or guardians. Although those under the age of twenty-one served in the militia, statutes mandating militia service do not demonstrate a right to keep and bear arms outside of militia service. Instead, these statutes demonstrate the government’s power over eighteen-to-twenty-year-olds, and represent the obligation of minors to serve, not an independent right to possess firearms.
The nation’s tradition of regulating firearms based on age expanded after the Founding. By the time of the adoption of the Fourteenth Amendment, such regulations were commonplace and widely viewed as a core exercise of state and local police power. Bruen’s directive that modern-day firearms regulation must be guided by history supports limits on minors’ access to deadly weapons.
Anglo-American law has always countenanced restrictions based on age, and recent developments in neuroscience have vindicated historical wisdom on this matter. Brain development of eighteen-to-twenty-year-olds is incomplete, a fact that limits their ability to evaluate risk and heightens their inclination to make reckless decisions. Indeed, while our understanding of the place of women and minorities in society and the political community has rightfully transformed since the time of the Founding, the view of teenagers’ limited capacity to make responsible decisions has not changed, but, instead, has been bolstered by scientific development. Applying Bruen’s analytical framework to these facts leads to the conclusion that modern-day firearm regulations based on age are justified by history, text, and tradition.