‘No Constitutional Reason' Justifies Not Recognizing 2A Rights of Young Adults

October 22, 2024 By David Codrea

“The Supreme Court … sent a challenge to a Pennsylvania law barring people 18- to 20-years-old from carrying guns back to the lower courts for another look in light of last term’s decision in United States v. Rahimi, in which the justices attempted to provide guidance for courts reviewing Second Amendment challenges to restrictions on gun rights,” SCOTUSBlog reports. “In Paris v. Lara, Pennsylvania had appealed in a challenge to a state law that effectively bars 18- to 20-year-olds from openly carrying a gun when Pennsylvania has declared a state of emergency.”

What better time could there be? And what’s that got to do with the other case?

“In Rahimi, the court upheld a federal law that bans anyone who is the subject of a domestic violence restraining order from possessing a gun,” the report elaborates, citing Chief Justice John Roberts, who “explained that even if the modern regulation being challenged ‘does not precisely match’ laws restricting gun rights in early English or U.S. history, “it may still be analogous enough to pass constitutional muster.”

So, Roberts’ official position is “close enough for government work”? Really?

Why there should be any split among “conservatives” is left unexplained. How can there be any question that the Third Circuit Court of Appeals was correct in its opinion that “The words ‘the people’ in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds, and we are aware of no founding-era law that supports disarming people in that age group.”

What’s left to send back to the lower courts?

Especially considering duly enacted law, 10 U.S.C. § 311 Sec. 311 defining “Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age…”

The only legitimate question is how government can countenance an “unorganized militia” when the Second Amendment declares a “well regulated” one “being necessary to the security of a free State.” Per attorney and constitutional scholar Dr. Edwin Vieira, the term is “an oxymoron” and an example of “malfeasance… beyond the pale. Under no circumstances may Congress leave the Militia unorganized, unarmed, or undisciplined--let alone knowingly and intentionally impose such conditions.”

But they have, haven’t they?

Rahimi with its eight-to-one decision against lone dissenter Clarence Thomas shows the “conservative” justices are having second thoughts about the Bruen decision, the restrictions it places on infringements, and the danger its text, history, and tradition standard puts other undelegated federal powers in (especially considering the Ninth and Tenth Amendments).

Gun owners have known for some time that John Roberts has a propensity for siding with the “liberals,” notably when he sided with Obamacare and when he joined in ruling against the Trump administration including a citizenship question on the 2020 census. “I think it’s personal,” Sen. Ted Cruz reflected. Roberts “despises” Trump.

And this isn’t the first time Justice Alito has raised doubts about his “Machine Gun Sammy” appellation. After voting the right way on bump stocks, he felt compelled to helpfully offer “There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act."

Ditto for Neil Gorsuch (one of three Donald Trump appointees along with Brett Kavanaugh and Amy Coney Barrett) being such a disappointment when siding with Justices Jackson, Sotomayor, and Kagan in favor of illegal aliens who “missed” their removal hearings. “What does that have to do with guns?” some “single issue” 2A types might ask, unwilling to recognize the plot openly admitted by Chuck Schumer and other top Democrats to put the tens of millions of foreign nationals who violated immigration laws on a “pathway (make that ‘superhighway’) to citizenship.”

As for Brett Kavanaugh, his concessions in the Bruen decision opened the door for lower courts to accept all sorts of prior restraints and infringements.

“[S]hall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements,” Kavanaugh asserted. “[T]he Second Amendment ‘is neither a regulatory straightjacket [sic] nor a regulatory blank check.’ Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

Then we come to Barrett.

“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests,” she wrote in a concurring opinion on a copyright case that indicates her sentiments on other areas of law. “But a rule rendering tradition dispositive is itself a judge-made test. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.”

Per ABA Journal, Barrett joined the court majority (with Thomas dissenting) in “turn[ing] down an emergency request to reinstate a Missouri law that barred state officials from helping enforce federal gun laws.” And during oral arguments in the VanDerStok challenge to ATF’s “ghost gun” ruling currently under consideration, she undermined Justice Alito’s analogy of individual ingredients not making an omelet and sided with the government’s attorney.

How that case is decided will be a bellwether of the shape of things to come for “assault weapon” bans and for other ATF rules, including a potential one if the Democrats believe they have the political capital and a court amenable to considering semiautomatic firearms just a modification step away from being classified as NFA weapons. What the Supreme Court will agree to hear, and how it will rule, whether Democrats ultimately succeed in “reforming” it or not, will continue to be uncertain due to systemic roadblocks to vetting nominees in the confirmation process.

Per the Congressional Research Service, “at issue has been whether, or to what extent, questions by committee members should seek out a nominee’s personal views on current legal or constitutional issues or on past Supreme Court decisions that have involved those issues.”

Think of one job you’ve applied for where you’d have gotten it if you decided to play coy with the hiring managers. While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation — for legitimate reasons, including not having studied and evaluated all the particulars, evidence and precedents against the “supreme Law of the Land,” — there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies.

So, back to Paris v. Lara, some Supreme Court legal apologists are arguing for procedure über alles, that it was proper to remand for reconsideration in light of Rahimi, and that stare decisis (deference to precedent) must rule. Uncultured non-lawyers (like me) wonder what’s so damn hard about “shall not be infringed,” about the Declaration’s assertion that “we hold these truths to be self-evident,” and about “a right delayed is a right denied.”

“The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty,” Continental Congress delegate Tench Coxe wrote in The Pennsylvania Gazette, Feb. 20, 1788. “The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.”

Anyone who tells you 18-to-20-year-olds are not fully enfranchised citizens entitled to exercise their rights under the Second Amendment is a liar and an enabler of tyranny. If they wear a robe while doing it, they’ve told you what you need to know.

After it’s all said and done, what will the court’s “conservatives” tell us?

Additional Considerations

Banning young adults from keeping and bearing arms brings up another issue, their serving as law enforcement officers. An Ohio bill to help alleviate the police shortage has been passed by the State Senate, noting “If enacted, Ohio would join at least 14 other states that permit local police departments to hire individuals between ages 18-20, including our neighbors in Pennsylvania, Michigan, and West Virginia. Certain municipalities in Ohio have already elected to appoint 18-year-olds as police officers, under the home rule authority within the Ohio Constitution.”

Allowing young adults to serve invites another discussion on police exemptions, along with challenges to the presumption that they are more trustworthy to keep and bear arms than the general citizenry. That contention opens the door to citing comparative crime and suicide rates between law enforcement personnel and the general public, with a U.S. Department of Justice report highlighting “five key types of police crime: Sex-related… Alcohol-related… Drug-related… Violence-related [and] Profit-motivated,” and other studies claiming “Police At Highest Risk For Suicide Of Any Profession… 13 out of every 100,000 people die by suicide in the general population – that number increases to 17 out of 100,000 for police officers.”

While not addressing young adult LEOs directly, Pennsylvania’s Petition for a Writ of Certiorari that SCOTUS considered argues that “18th-century militia laws actually demonstrate the Founding generation’s view that under-21-year-olds should have access to deadly weapons only under appropriate adult supervision. When state militia laws called on under-21year-olds to serve, parental consent was usually a prerequisite, and parents were often required to furnish their children with arms.”

Police powers extend to acting as individuals. However, it is instructive of them to admit that adults were recognized as entitled to own arms suitable for militia service, that is, “weapons of war,” and were empowered to provide them for their children.