(CNN)A spate of high-profile massacres where the shooters were in their late teens comes as the federal judiciary — yanked to the right by former President Donald Trump — has shown increased hostility to gun control measures aimed at people under 21 years old.
In the last year, two separate federal appellate courts, in opinions both written by Trump appointees, struck down restrictions that limited firearms sales to young adults. The most recent, from the 9th US Circuit Court of Appeals, said that California had violated the Second Amendment with its law prohibiting the sale of semi-automatic weapons to those under 21.
“America would not exist without the heroism of the young adults who fought and died in our revolutionary arm,” wrote Judge Ryan Nelson, who was joined by a fellow Trump appointee, Judge Kenneth Lee, in the May 11 decision. “Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.”
Last July, the 4th US Circuit Court of Appeals had said federal restrictions on the sale of handguns to 18-20 year-olds were unconstitutional. The panel majority — made up of a Trump appointee and judge named to the bench by President George W. Bush — embraced similar logic about teenage participation in militias when it ruled against a 1968 law.
Raising the minimum age for purchasing certain firearms has become a focus of proposed responses to recent mass shootings — one earlier this at grocery store in Buffalo, New York and another at a Texas elementary school this week — where both the suspects were 18 years old.
New York Gov. Kathy Hochul said Wednesday that she’d support raising the minimum age for purchasing a firearm in the state from 18 to 21, and that at the very least, the age limit should be raised for purchasing an AR-15 rifle. California Democratic Sen. Dianne Feinstein has introduced legislation to raise the federal minimum age for purchasing assault-style weapons and high-capacity ammunition magazines from 18 to 21.
Other states already set a 21-year-old mininum age for certain firearms purchases, but those measures risk legal challenge, particularly with a coming Supreme Court ruling in a conceal carry case that could expand the Second Amendment’s protections in a way that make such proposals even more vulnerable to invalidation.
“The idea an 18-year-old can buy weapons of war designed and marketed to kill is, I think, just wrong. It just violates common sense,” President Joe Biden said Wednesday.
Rulings focused on teenagers’ participation in founding-era militias
To assert in recent rulings that gun regulations for 18 to 20-year-olds burden their Second Amendment rights, the appellate courts pointed to a historical record they say showed that teenagers participated militias at the time of the Second Amendment’s adoption.
“Ultimately, the Second Amendment protects the right of the people to keep and bear arms and refers to the militia. Young adults were part of the militia and were expected to have their own arms,” the 9th Circuit said.
That court was reviewing a California law that banned the sales of semiautomatic centerfire rifles to those under 21. The appeals court left standing a separate provision of the law that allowed 18-20 year-olds obtain long guns if they obtained a hunting license — a process that includes gun safety education.
The 4th Circuit was considering a federal law that barred Federal Firearms Licensed dealers from selling handguns to those under 21.
“That 18-year-olds had to be part of the militia and bring their own arms establishes that 18-year-olds were included among ‘the people’ who enjoyed the Second Amendment right to keep and bear arms,” Judge Julius N. Richardson wrote in the July 2021 decision, where he was joined by Judge G. Steven Agee.
(The 4th Circuit appeals court later wiped away its ruling, as the person who was challenging the restriction turned 21, making the case moot, and the federal law remains in effect.)
Both rulings also addressed the evidence that those in the 18 to 20 age group were more likely to commit violent crimes — a dynamic Congress was looking at when it crafted the age restrictions for handguns.
The 9th Circuit said that the evidence — which showed the age group accounted for more than 15% of homicide and manslaughter arrests despite making up less than 5% of the population — did not justify California’s restriction on their purchase of semi-automatic weapons.
That was a sentiment the 4th Circuit, in ruling against the federal handgun restriction, echoed with its opinion, which said “these laws over-inclusively restrict the rights of a large group of law-abiding citizens to target a tiny portion of them.”
Earlier court rulings upholding gun restrictions on older teens.
In a dissent to the 9th Circuit’s ruling, Bill Clinton-appointed Judge Sidney H. Stein took issue with the conclusion that the California regulation amounted to a burden on the young adults’ Second Amendment rights, as the law restricted purchases of only certain kinds of firearms, it left open other ways for older teenagers to obtain semiautomatic weapons, and it didn’t ban 18-20-year-olds from possessing them.
“[T]he semiautomatic rifle regulation is far afield from being a total or even near-total prohibition on the right to defend oneself in the home,” the judge wrote.
James A. Wynn Jr., a Barack Obama appointee, said in a dissent to the federal regulations ruling, that the 4th Circuit majority had broken “new ground” and had granted “the gun lobby a victory in a fight it lost on Capitol Hill more than fifty years ago.”
Indeed, prior to last year, other courts had upheld age-based gun control restrictions, including the federal ban on handgun sales to those under 21.
A 5th Circuit opinion in 2012 that rejected a challenge to that regulation said that historically, minors were understood to be those under the age of 21, not just those under 18.
“The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18,” Judge Edward Pardo wrote, later concluding that the ability of 18-to-20 year-old to purchase handguns from certain federally licensed dealers fell outside the Second Amendment’s protections.
“To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction,” said Pardo, a George W. Bush appointee. “The important point is that there is considerable historical evidence of age- and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns — and the ability of persons under 18 to possess handguns — seem, to us, to be firmly historically.”
That ruling was appealed to the Supreme Court in 2013, which declined to take up the case.
The next year, the 7th Circuit upheld the process Illinois set out for 18-20 year-olds to possess a firearm. That age group must get a parent’s signature when applying for the license Illinois requires for firearm owners, though under the Illinois law, an applicant without that signature can seek an exemption through a hearing with the state police director.
The appellate panel in that case said it didn’t need to decide whether that age group fell under the Second Amendment’s protections, concluding that, even if they did, the regulation was justified.
Citing the evidence of that age group committing a disproportionate amount of violent crime, the court wrote those statistics “reflect important benefits to the public interest in limiting firearm possession by persons in the age group that is the subject of the challenged statute.”
The decision did not ultimately reach the Supreme Court.
New Supreme Court ruling could cause a dramatic shift
Now the justices have before them another gun rights case that gives the conservative majority the opportunity to drastically expand the Second Amendment’s scope.
The case does not concern age-based restrictions, but rather whether certain limits on firearms brought outside of the home are constitutional.
The challenged statute is a New York law, more than a century old, requiring that New York residents obtain a license to carry a concealed pistol or revolver, in a process where they must demonstrate that “proper cause” exists for the permit. An emboldened conservative majority could issue a sweeping ruling redefining the legal landscape around gun rights in ways that will affect all sorts of efforts to restrict access to firearms.
That is a possibility that the defenders of the California restriction on semiautomatic weapon sales have pointed to, as they have asked the 9th Circuit for more time to decide their next steps in the case.
The Supreme Court’s ruling in the New York case “will address potentially related Second Amendment issues,” the defenders of California’s law wrote.