The next big second amendment case could be involved with teenagers. The appeals court will split over whether the government could restrict the purchase or carry a child between the ages of 18 and 20 from arriving at guns, and the Supreme Court will consider whether to hear about any of these cases next week.
The different views of the lower court may be expected to be split along a predictable line. A judge is appointed by a Republican on one side, and a judge appointed to the other. But this is a question that created a rift between conservative judges who have committed to unearthing the original meaning of the Constitution.
For example, last month, Judge William H. Pryor Jr. wrote a majority opinion from Atlanta's 11th Circuit Court of Appeals in an 8-4 decision on Florida law prohibiting the sale of firearms to people under the age of 21.
No one doubts Judge Pryor is a conservative. He was on President Trump's short list in 2017 to fill the vacancy created by the death of Justice Antonin Scalia. The traditional wisdom was that Judge Pryor would face a tough confirmation fight.
“Pryor did more for the cause than anyone else in the country,” a White House official said at the time. “But politics is really tough.”
Supporters of Judge Pryor said he would not shake or evolve. “He has a real titanium spine in terms of doing the right thing,” a conservative group of officials at the Heritage Foundation said of the 2017 judge.
That same year, 18-year-old Nicholas Cruz legally purchased a semi-automatic rifle from a Florida gun store. A year later, he used it to kill 17 people and injured 17 at Marjorie Stoneman Douglas High School in Parkland, Florida.
Florida lawmakers responded by enacting the Marjorie Stoneman Douglas High School Public Safety Act, making it a crime for people under the age of 21 to buy guns.
Over the next few years, the Supreme Court transformed the Second Amendment Act and introduced new tests to determine the constitutionality of gun control measures. As Judge Clarence Thomas put it in the 2022 majority opinion in the New York State Rifle & Pistol Association vs. Brune, such laws must be turned down “unless they are consistent with the firearms regulations of the country's historical traditions.”
In opinion last month, Judge Pryor looked into historical evidence and found that people under the age of 21 were considered minors when the constitution was adopted. He said he drew two lessons from that fact.
“Firstly, minors were unable to purchase firearms in general because they lack the determination and discretion to enter into contracts and receive wages for labor,” Judge Pryor wrote. “Secondly, minors were exposed to the power of their parents, relying on their parents' consent to exercise their rights and dealing with others in society.”
The 26th revision lowered the voting age in 1971 to 18. However, that modern movement does not reveal the original meaning of the constitution, Judge Pryor writes.
Seven judges joined Justice Pryor's opinion, two of whom were appointed by Trump.
All four opponents were appointed by Trump. Judge Andrew L. Brasher, who served as Judge Pryor's legal clerk, wrote that the legal age of an adult at the time the Second Amendment was adopted was irrelevant. What matters is whether an 18-year-old is considered an adult today.
“The founders adopted a second amendment that applies to legal, social and technological changes,” he writes.
Judge Pryor replied that the original meaning of the second amendment was amended when it was adopted. An opponent of Judge Brasher wrote, “The Second Amendment would see us turning on the text of the amendment and the evolving standard that divorced from our regulatory tradition.”
The suit, which decides whether the Supreme Court will listen immediately, includes Minnesota law that criminalizes people under the age of 21 carrying guns in public. Last year, the Eighth Circuit broke the law and determined that the Second Amendment would require the 18-year-old to be armed.
“There is no age limit for the plain Second Amendment text,” wrote Judge Duane Benton, appointed by President George W. Bush. He also relied on the 26th revision to say that he would “clearly place 18-20 year olds within the national political community.”
Joseph Brocher, a law professor at Duke and authoritarian of the Second Amendment, said there are at least two notable things about these duel opinions and what addresses similar issues in the third, fifth and tenth circuits.
One is, “These were not the second amendment cases where people were expecting to line up for Supreme Court review.” He said most observers are paying more attention to other unanswered questions, including whether felonies and drug users can be disarmed, and whether the state could ban high-performance rifles.
Another thing, he said, is that the test, published in Brune in 2022, “still proves that it is extremely difficult for judges to apply.”
“Even judges who are dedicated to the Originalist approach are found to be in very different places regarding the constitutionality of these laws,” he added.
