The Obama administration, urging the Supreme Court to bypass a sweeping new gun rights plea by the National Rifle Association, told the Court Wednesday that Congress and state legislatures would not violate the Second Amendment if they denied access to firearms for youths under the age of twenty-one.  The Court does not have to face that issue in this case, the government’s brief suggested, but it made the argument anyway, to answer an NRA claim.

The NRA and some of its members last July filed a Second Amendment challenge to a 1968 federal law that bans licensed gun dealers from selling handguns to any minor.  The petition in NRA v. Bureau of Alcohol, Tobacco, Firearms and Explosives (docket 13-137) made a wide-ranging complaint that lower courts are routinely failing to protect Second Amendment rights.  The administration’s response basically argued that this particular case is narrower than the NRA has tried to make it, and does not deserve review by the Justices.

In upholding the ban, the Fifth Circuit had raised doubts about whether young adults between the ages of eighteen and twenty-one are protected by Second Amendment gun rights.   The NRA has protested that suggestion, contending that gun rights under the Amendment are fundamental in character, so no category of law-abiding individuals should be denied its protection.

In reply, U.S. Solicitor General Donald B. Verrilli, Jr., and other Justice Department lawyers argued that the Fifth Circuit’s decision is less sweeping than the NRA has said.  Even so, the new brief argued, the court of appeals “would have been justified in rejecting [this] Second Amendment challenge based on historical evidence indicating that restrictions on the purchase of firearms by those under 21 have long been viewed as consistent with the Second Amendment” and similar provisions in state constitutions.

To an NRA argument that individuals under the age of twenty-one served in the militia at the time that the Second Amendment was written, indicating that they were capable of handling guns properly, the Justice Department brief said that “around the time of the Revolutionary War, persons under 21 often could not join the military without their parents’ consent…. After the war, the 1792 Miltiary Act gave states discretion to impose age qualifications on service, and several states chose to enroll only persons age 21 or over, or required parental consent for persons under 21.”

But, it added, “the fact that individuals under 21 served in some militias did not reflect any uniform expectation that those individuals would have the ability to procure firearms on their own.  Rather, militia laws often assumed that enrollees under 21 lacked independent access to firearms, and they accordingly either required parents to provide their under-21 sons with guns or exempted those under 21 from having to furnish their own guns.”

The government’s brief said the NRA case should not be reviewed, because there is no conflict among lower courts about the validity of the specific handgun ban at issue.  It also said that the lower courts have agreed that the proper test of the constitutionality of restrictions on Second Amendment gun rights is a middle level of scrutiny, not the rigorous “strict scrutiny” that the NRA is advocating in this case.

The NRA case to which the government responded is one of two pending petitions that lawyers for the NRA have filed.  The other is NRA v. McCraw (docket 13-390), raising similar issues about a series of Texas gun-regulating laws that make it a crime for a minor to carry a handgun outside of the youth’s home.  Texas officials did not respond to that petition by an October 28 deadline, and the Court so far has not asked for a response.  The case is currently scheduled to be considered by the Justices at their November 26 Conference, although the NRA in that case suggested that the Court might want to hold the case until it acted on the other case.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, U.S. argues for broad limit on teens’ gun rights, SCOTUSblog (Nov. 14, 2013, 2:13 PM),