History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People

43 Southern Illinois Law Journal (2018)

U Denver Legal Studies Research Paper No. 18-30

30 Pages Posted: 24 Aug 2018 Last revised: 20 Sep 2018

See all articles by David B. Kopel

David B. Kopel

Independence Institute; Denver University - Sturm College of Law

Joseph Greenlee

Millennial Policy Center

Date Written: September 18, 2018

Abstract

This Article surveys nineteenth century laws and cases that restricted arms ownership based on age. We analyze the nineteenth century statutes and cases through the lens of five federal Circuit Court of Appeals cases involving restrictions on the Second Amendment rights of young people. Part II examines Rene E., a First Circuit case. Because Rene E. relied on nineteenth century cases, Part II analyzes those cases. Part III is the Fifth Circuit’s NRA v. BATF, which cited nineteenth century statutes, some of which had led to the cases that Rene E. cited. So Part III reviews the statutes. Parts IV, V, and VI each have shorter discussions of the other leading Circuit cases: NRA v. McCraw (5th Cir.) (carry permits); Horsely v. Trame (7th Cir.) (parental permission for gun license), and Ezell v. Chicago (7th Cir., “Ezell II”) (ban on persons under 18 using firing ranges). Reviewing these cases and their citied authorities, we find that there are no Founding Era sources that support restrictions on arms acquisition by young people. The first age restrictions appear in the South shortly before the Civil War. By the end of the nineteenth century, thirteen of the forty-six states had restricted handgun sales to minors; and five more required parental permission for such sales. Five states went so far as to prohibit handgun loans to minors. No state had restrictions on long gun sales or loans; a Kansas decision applying a vague statutory term to long guns was swiftly overturned. Modern policy arguments attempting to justify prohibitions on young adults 18-to-20 are thinly reasoned and rely on the unsupportable theory that law-abiding young adults are legally similar to convicted felons, illegal drug users, or wartime traitors.

Keywords: Second Amendment, young adults, 18-year-olds, nineteenth century, federal circuit courts of appeal

JEL Classification: H79, K39

Suggested Citation

Kopel, David B. and Greenlee, Joseph, History and Tradition in Modern Circuit Cases on the Second Amendment Rights of Young People (September 18, 2018). 43 Southern Illinois Law Journal (2018); U Denver Legal Studies Research Paper No. 18-30. Available at SSRN: https://ssrn.com/abstract=3231468

David B. Kopel (Contact Author)

Independence Institute ( email )

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Denver, CO 80203
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HOME PAGE: http://www.davekopel.org

Denver University - Sturm College of Law

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Denver, CO 80208
United States

HOME PAGE: http://www.davekopel.org

Joseph Greenlee

Millennial Policy Center ( email )

3443 S. Galena St., #120
Denver, CO 80231

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