Friday, July 16, 2021


by John Harris, Tennessee Firearms Association, July 14, 2021 - A Fourth Circuit federal appeals court issued a ruling on July 13, 2021, in Hirschfield v. BATFE, et al, 4th Cir. No: 19-2250 (linked below) which addressed the issue of when do constitutionally protected rights under the 2nd Amendment attach. That appellate court concluded that the rights attach at age 18 – not age 21 – and struck down a portion of federal law that prohibits transfers by federal firearms dealers of handguns to those under age 21. 

As Tennessee Firearms Association has argued, the court found that those rights attach at a minimum by age 18. The court’s introductory paragraph states: 

 When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

Plaintiffs seek an injunction and a declaratory judgment that several federal laws and regulations that prevent federally licensed gun dealers from selling handguns to any 18-, 19-, or 20-year-old violate the Second Amendment. We first find that 18-year-olds possess Second Amendment rights. They enjoy almost every other constitutional right, and they were required at the time of the Founding to serve in the militia and furnish their own weapons. We then ask, as our precedent requires, whether the government has met its burden to justify its infringement of those rights under the appropriate level of scrutiny. To justify this restriction, Congress used disproportionate crime rates to craft over-inclusive laws that restrict the rights of overwhelmingly law-abiding citizens. And in doing so, Congress focused on purchases from licensed dealers without establishing those dealers as the source of the guns 18- to 20-year-olds use to commit crimes. So we hold that the challenged federal laws and regulations are unconstitutional under the Second Amendment. Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18- to 20-year-olds to a second-class status. Hirschfield, p. 3 

As the court continued to examine the historical question of whether those of at least 18 years of age had the rights to arms as protected by the 2nd Amendment in the early years of our states and nation, it concluded that they did. 
Looking through this historical lens to the text and structure of the Constitution reveals that 18- to 20-year-olds have Second Amendment rights. Virtually every other constitutional right applies whatever the age. And the Second Amendment is no different. The militia laws in force at the time of ratification uniformly required those 18 and older to join the militia and bring their own arms. While some historical restrictions existed, none support finding that 18-year-olds lack rights under the Second Amendment. 

As with any matter of constitutional interpretation, “our inquiry begins with the text of the Constitution.” Altman v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003). Both the text and structure of the Second Amendment, along with its place within the Constitution as a whole, reveal that it protects 18- to 20-year-olds. First, nothing in the text of the Second Amendment limits its application by age. Second, the most analogous rights to the Second Amendment, those in the First and Fourth Amendments, similarly contain no age limits. Third, most other constitutional rights are not age limited. And fourth, the few rights that may not apply to those under 18 or that change by age are not analogous to the Second Amendment, and most of those rights become applicable at age 18, not 21. Hirschfield, p. 24 
As the analysis continues the Court, as did the TFA when advocating for constitutional carry for those 18 and up this year in Tennessee, also considered the historical significance of militia duty and service and concluded that at a minimum those 18 years of age and up were both subject to the militia call and also its requirement to respond with their own arms. 
The historical evidence from the Founding shows that 18- to 20-year-olds are protected by the Second Amendment. Founding-era militia laws provide powerful historical evidence. Near the time of ratification, the federal government and every state required 18-year-old men to be part of the militia and bring their own arms. See Heller, 554 U.S. at 596, 627. This evidences the Founding public’s understanding that the “militia,” and thus the Second Amendment, encompassed 18-year-olds. 

These Founding-era militia laws illuminate the broader individual right enshrined in the Second Amendment. Id. at 600–03. The phrase “[a] well regulated Militia, being necessary to the security of a free State” augments the individual “right of the people” and helps us understand its scope and resolve ambiguities. Id. at 577–78, 595–99. 

… The third purpose of the militia is closely related: to act as a check on a tyrannical government. Many feared that a standing army would be used to disarm and oppress the people. The militia democratized self-defense and gave the people an important check on and voice in government action. In order to serve these purposes, a wide swath of the public had to be armed. Hirschfield, pp. 29-32.
Ultimately, the court struck down as unconstitutional that portion of federal law that restricts the sale by FFLs to those 18-20 of handguns and handgun ammunition. We expect that this is not the end but that the case will be further appealed yet it is the trend in which federal courts, particularly those with conservative, constitutionally focused justices, are headed. 

So, what does this mean here in Tennessee? 

Tennessee allows individuals 18 and up to purchase and possess handguns. The restriction that applies to those 18-20 on purchasing from a licensed dealer is actually a federal prohibition on the dealers that prohibit them from “transferring” handguns and handgun ammo to those under age 21. But both state and federal law is clear that an individual 18-20 can purchase a handgun and ammo in a “casual sale” from another private individual. 

But let’s look specifically at Tennessee’s handgun permitting laws and now the new permitless carry law by Governor Lee. Those laws prohibit 18-20 year olds from obtaining the permits or from qualifying under the permitless carry qualifications (with the “pandering” exception given to those in the military or retired from it). See, TCA 39-17-1307(g), 39-17-1351 and 39-17-1366. 

If the Fourth Circuit’s analysis is correct that those 18 and up have rights that are protected by the 2nd Amendment from government infringement, then isn’t this statutory scheme in Tennessee just another massive infringement on the rights of citizens? Are these laws, to the extent that they infringe those rights, unconstitutional? If they are unconstitutional restrictions on constitutionally protected rights, do they give rise to perhaps federal civil rights claims under 18 USC 1983? The answer is apparently yes.

Tennessee Firearms Association has asserted that real constitutional carry must apply to everyone 18 and up who can legally possess a firearm. Two separate bills were filed in 2021 that would have recognized that right – but both of those bills were opposed by the Governor, apparently opposed by the NRA, and clearly opposed by enough Republican legislators that they never saw a floor vote in either the House or the Senate. TFA, GOA, and NAGR all supported true constitutional carry efforts that would have applied to those 18 and up in 2021. 

As the Fourth Circuit noted in quoting James Madison at p. 34 of the opinion, one of the purposes of the 2nd Amendment, the armed citizens and the unorganized (that it – not under government authority) militia is to form a “barrier” against tyranny in domestic government. That those 18 and up were not just entrusted with that duty but compelled to provide it under risk of criminal prosecution makes clear that the right to arms as protected by the 2nd Amendment exists fully and without restraint in an 18 year just as it does in a 21 or 25 or 30 year old. 

We must be demanding that Tennessee’s law which continues to infringe rights of Tennesseans and other citizens be purged from our laws. We have an obligation as citizens, to the full extent as discussed by James Madison, to compel government to remove these infringements or we have the duty to move forward as that barrier against tyranny of domestic government which duty and function lies at the very core of the type of governments that the Founding Fathers created and that today’s political parties work so hard to dilute.

Rod's Comment:  I cannot disagree with the logic of this article.  It certainly appears that the 2nd amendment applies to 18-year-olds.  If the right to bear arms was not a right, but just a policy preference, I would prefer that 18-year-olds not possess guns.  We prohibit 18-years-olds from purchasing alcohol and tobacco.  That is a policy preference.  One does not have a constitutional right to purchase alcohol or tobacco, however.  A policy preference cannot trump a right.  To impose a policy that violates a right, the right must be abridged.  The way to do that is to amend the constitution.  My view is that we must follow the constitution even if it means policies I may disagree with are permitted. 

For more on the issue of guns, see the following: 

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