That’s begging the question. The Fourth Amendment bans unreasonable searches. So defining a search as reasonable puts it beyond the protection of the Fourth Amendment.
I’m not arguing the validity of the position - just stating it in terms that I understand it to be held. In that regard the inconsistency pointed out by RNTB is mooted. At some point a finder of fact has to determine if the actions being weighed (search in this case) are reasonable or not. If they are reasonable then the 4th amendment is not implicated.
The alternate position that would support the inconsistency criticism is if the pre jail search was deemed unreasonable but SCOTUS gave its blessing anyways. Like DUI stops which I mentioned earlier.
I think we’re in agreement. But my point was that ruling a search is reasonable is not the basis for a decision - it is the decision.
So why is it fine to take away a felon’s second amendment right? Could we also take away their 4th, 5th and 6th amendment rights?
Does the fact that they are so likely to commit gun crimes not a factor in jsutifying this abridgement?
It is possible to survive strict scrutiny:
"Legal scholars, including judges and professors, often say that strict scrutiny is “strict in theory, fatal in fact,” because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases.[2]
Besides, I think the most likely standard of review for second amendment cases is intermediate or heighteneed scrutiny (the standard applied to the first amendment):
“the law furthers an important government interest in a way that is substantially related to that interest”
Which is why an Assault Weapons Ban is (IMHO) unconstitutional. The law may be related to an important government interest but it does not further that interest, it has no effect on gun crime (a ten year of AWB proved that).
When I think of gun regulations I assume it will only affect the behaviour of law abiding citizens. The fact that you have high gun violence among criminals up to the age of 120 wouldn’t make a whit of difference to me in picking an age when a handgun might present a heightened risk. Why can’t we say that the second amendment right is impaired in a certain population if we can say it is eliminated almost entirely in others? I think analysis might support an age as high as 25 for males (it would probably be lower for females, I don’t know how you would make that sort of gender based disinction and this might reveal some sort of weakness in my argument but I can’t figure out what that is).
Sure a blanket ban would be impermissible and any distinction made along impermissible lines (race, religion, gender, or other protected class). Age is not one of those protected classes (at least youth is not (old age might be).
And like I said above, you can have impairment (or infringement of a right without eliminating it altogether.
I think the age restriction would have to be supported by congressional findings findings that law abiding citizens under the age of X commit crimes with handguns at some unacceptable rate.
We execute felons. Abridging their rights is clearly permissible. Their likelihood or lack thereof to commit other future actions has nothing to do with it. It is a punishment.
You should engage in some sports betting with your confidence of prognostication. The only thing I’m confident in saying is that total bans will not survive any level of scrutiny.
I’m not sure why you think certain protected classes are relevant to the discussion of fundamental enumerated rights. They are not. Blanket bans are impermissible. Period. You get this, right?
Heller explicitly rejected interest balancing with respect to total bans which is the sum of your above argument. Congressional findings would have no impact on a total ban on handguns for anyone that enjoys the protections of the 2nd amendment. Your above statement is inconsistent with Heller and is explicitly rejected by SCOTUS. The only open question is whether those ages 18, 19, and 20 enjoy the protections of the 2nd amendment.
SCOTUS denied cert so as of yet we do not know.
Wait. So its a federally prescribed punishment on state crimes? Does that make sense to you?
I just said the most likely. Obviously, rational basis is not the standard because banning handguns are rationally related to the legitimate government interest in reducing handgun crime. I don’t think they will apply strict scrutiny because it would overturn the NFA and I think SCOTUS has already ruled on the constitutionality of the NFA. And that leaves us with intermediate scrutiny, a standard that various courts across the country have adopted as the standard Post Heller.
Yes, I get that and a ban based on age is not a blanket ban. We are talking about a restriction based on age, restrictions based on age are permissible. There is nothing in the constitution that says that we have to use the same age for all restrictions. We could if we wanted to, restrict people under 21 from exercising their first amendment right as a porn star. We use 18 but we don’t have to. Different states use different ages for marriage rights, etc.
You do understand that a partial age restriction is not a total ban right?
That’s right, it wouldn’t make a difference for a total ban but it would make a difference for something less than that if the second amendment was reviewed with intermediate scrutiny, wouldn’t it?
No its not.
Unless we are talking about a TOTAL ban, that sentence is not really that relevant. And we are not talking about a total ban.
No, the question is whether we can partially infringe on the second amendment rights of 18, 19 and 20 year olds if we have a good reason for doing so.
Well, we’re assuming that SCOTUS will be consistent and rational.
I don’t know what you’re saying here. Let me reiterate for clarity: The fact that we execute individuals for certain crimes means that it is necessarily permissible to deny other rights to certain individuals.
The state of the law in question is a total ban for those 18, 19, and 20. Do you disagree with that?
If I am 18 years old in the state of Texas who lives alone, may I exercise my constitutional rights as laid out in Heller to purchase a handgun for self defense within my home? The answer is no. Though this may be temporal, when I am in these age groups I am experiencing a total ban. The harm during this time is irreparable. Saying that someone must wait to exercise their rights violates these rights, should they exist. That is why that is the key question.
An analogue isEzell vs Chicago. Chicago had placed a requirement that all people seeking to purchase a firearm must complete live fire range training, then banned all ranges within the city. The district court upheld this - saying that residents could simply travel outside the city. This was reversed by the 7th circuit. From the opinion (again drawing comparisons to the 1st amendment:
Substitute time to travel with the temporal nature of aging.
Merely being forced to travel outside the city was considered irreparable harm. And for some reason you think having to wait 3 years is okay? Prohibiting ANYONE from purchasing a handgun is a total ban for that person. The only way this ban stands up is if it is determined that 18, 19, and 20 year olds don’t enjoy the 2nd amendment protections.
More from the opinion:
(my bold)
One cannot prohibit a person from exercising the central component of a right without violating that right. Therefore, the only way that it would be permissible to ban 18, 19, and 20 year olds from purchasing handguns would be if they do not enjoy that right. QED.
As an adendum - the reasoning the 5th circuit ruled against the NRA was precisley because they determined that the 2nd amendment doesn’t apply to those between ages 18 to 20. From the opinion (pdf):
Here the circuit court clearly distinguishes the protections of the 2nd amendment of someone over the age of majority and a minor. Essentially they said that because historically those 18-20 were considered minors (even though they no longer are), then the 2nd amendment doesn’t apply to them.
Reiterated in the conclusion - 18-20 year olds do not enjoy 2nd amendment protection, according to the 5th circuit.
The 5th circuit, like me, also found that the key question at issue is whether the 2nd amendment applies to those ages 18-20. They concluded that it does not. I find that conclusion to be unpersuasive but that’s what I was hoping SCOTUS would clear up. It has nothing to do with interest balancing for a particular group of folks who may or may not commit crimes. That reasoning would not withstand judicial review. They do go on to say that those of this age group are irresponsible and prone to commit crimes - this type of rationale would be abhorrent to any other fundamental right.
The dissent to the denial of en banc review obviously disagreed with this notion that the 2nd didn’t apply to this age group:
And here’s where I largely agree with that dissent:
My only quibble with the above is that even though this age group may still possess handguns, the law prohibits them from obtaining them by the most common way available - via purchase from a licensed firearms dealer. That is an infringement if the 2nd applies.
It seemed like you said that revoking the RTKBA was a punishment for committing a felony. Most felonies are state crimes. There is a federal law that revokes a felons RTKBA. So that means you think that the federal government is putting some extra punishment on top of what the state did. I don’t think this is the case at all.
I don’t agree that a ban on a small subset of people from owning a subset of firearms is anything like a total ban on anything. The population may own other firearms and all firearms may be owned by the majority of people.
I disagree. This is not a total handgun ban. The fact that there is a ban with respect to people, between 18 and 20 is not a total ban of handguns. As long as we aren’t picking on people we are not allowed to pick on and we are doing it for good reason, I think we can do it. Heller did not declare handguns sacred.
In dicta, the Heller Court said: “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”
How do you think they arrive at that sort of language without some sort of balancing of interests? WHY would it be OK to forbid firearms in “sensistive places” like places of worship, what is this,the Highlander? I remember you once telling me not to read too much into Heller. Let me return the favor and say that you shouldn’t read too much into what Heller said.
“Irreparable harm” is a term of art that is used in pleas for injunctions. It is saying that mere monetary damages would not make you whole. It doesn’t mean what I think you think it means.
I think you can you can prohibit individuals from exercising a central component of a right without violating that right. I don’t think you can ban the exercise of that right altogether. I realize that handguns are special but i don’t think they are sacred.
Slight Hijack: There is a reason why Gura started with total bans in places like DC and probably why he didn’t have anything to do with these cases. He has another case going that picks at the requirement that interstate sales of guns must be conducted through an FFL in each state. the only basis that I can think of for this is interstate commerce and I can’t think of why interstate commerce should infringe on a constitutional right without much more jsutification, why can’t a DC resident buy a gun directly from an FFL in Virginia, why must they go to that guy in the basement of the DC Police headquarters? I suppose it might put some sort of burden on the Virginia FFL to comply with DC laws but I imagine any FFL is free to deny service to out of state customers because of this factor.
I think we are still exploring the contours of this right and I think they got their law wrong and their conclusion right.
And this is why I think they got it wrong.
Yes, it is an infringement but I think it is a permissible infringement. If it turns out that I am wrong and handguns are in fact sacred, then the whole landscape changes. Why does the right of self defense depend on attaining any age at all? Is a 14 year old any less entitled to the right of self defense (from which the individual second amendment right apparently arises, and this was a bit of a shock to everyone) than an 18 year old? Are 14 years old too much of a danger to themselves and others if they have a gun? Are we allowed to take these sort of factors into consideration in extending the second amendment right in part or in whole.
Your argument seems to be that a partial ban on the RKBA is a total ban if the partial ban is on handguns. I disagree.
I’m pro-gun but I don’t see the reason why a state cannot set an age of majority as it reasonably sees fit. If this case had succeeded, one may wonder why 15, 16, or 17 year olds (or even 10 year olds) wouldn’t have the same argument. But for state laws in the early 1970s, 21 would still be the age of majority for all purposes and this wouldn’t even be a debate. Is the argument that because states chose to become less restrictive in the age of majority that they must constitutionally always and forever retain that lower age for all purposes?
It wouldn’t be the interest-balancing prohibited by Heller, but the reasonableness of a state regulation setting an age of majority. As states set age 21 as a minimum for a variety of other age-related limits, 21 for gun possession would likewise be reasonable.
Of course the next question would be, could a city like Chicago set an age of majority of 50 for guns? I think clearly not. In that case guns would have been singled out as the only thing that people who are clearly adults are not allowed to do. Likewise the age 35 because that is the minimum qualification for President fails as well. Being POTUS is clearly a special qualification to hold an important office that an extremely small number of people will ever hold. It’s not a common activity like voting, drinking, tobacco use, or driving that the vast majority of us will face.
Handguns are not permissable to be banned per Heller. They are deemed the quintacential self defense weapon and the most popular form of self defense firearm.
The reason why it is okay to restrict 14 year olds from
purchasing is because they are children. Children do not enjoy all of the rights afforded in the constitution. This argument can not be made for an 18 year old because that person is an adult.
I emphasized the term irreparable harm because these are civil actions. An award at some later date will never go far enough to correct the rights violation and immediate injunction of enforcement was necessitated.
I think ultimately our disagreement stems from the fact that you believe you can restrict the purchase of handguns and not construe that as a total ban. From the perspective of the 18 year old it is no different than a total ban. I believe the cert petition and the end blanc denial dissent are a much more persuasive, compelling, and accurate argument than the actual decision. Read all three of those and tell me which you think gets it right.
@jtgain - the key question here is when do constitutional rights accrue to the individual. Comparisons to drinking or driving are not apropos since those are not in the same sphere as the 2nd amendment. If you posit that the age of majority could be set lower and the 15, 16, and 17 year olds would have the same argument as the NRA here I agree with you. I would support all rights accruing to the individual upon attainment of the age of majority - whatever that is.
Could voting be limited to those that are 21 or over when the age of majority is 18?
Under your rationale there is no limiting principle that prevents Illinois from setting the age of majority for handguns to 22. Or 25. Or 35 or whatever they want. Is there ?
First, the 26th amendment prohibits a state voting age higher than 18 so that is a non-starter.
My basic question is why do you believe it is unconstitutional for a state to set the age of majority at 18 for some purposes, and 21 for others? I understand that your belief and opinion is that it should be the same for all purposes, but why can’t a state disagree and have different ages?
So lets say a state sets an age of majority for guns at 25. I would strike that down as unconstitutional because the totality of the circumstances would show that it is not a permissible age of majority measure, but a prohibited gun control measure. When 24 year olds can do absolutely every other ordinary activity in the state but the state says that they are too young for guns, then it seems fairly obvious that the state recognizes these people as adults and are only denying them a fundamental right to own guns.
When a state says that 19 and 20 year olds can’t own guns, that is consistent with other policies that the state has enacted saying that for certain purposes people these ages are not “full adults.” For example drinking, applying for certain professional licenses, gambling, supervising a driver holding a learners permit and the like. Although those aren’t constitutional rights as you correctly mentioned, they are evidence that the age limit is reflective of a general state policy that persons of age 19 or 20 do not enjoy all of the rights or privileges of adulthood.
In your view, could a state raise the age of majority to 21, but simply “allow” 18 year olds to enter into contracts, marry, and the other things they do today, but keep the gun laws at 21?
Apparently a state can. At least in the 5th circuit. I’ve laid out my reasoning for why there should be only one age of majority. I believe it’s the only way to be consistent both with our other constitutional rights as well as internally consistent. An adult who can engage in contracts, vote, enlist, and be held accountable as an adult for their actions should be treated as such. If that age is 18, then so be it. If it is 15, so be it. If it is 25, so be it. At least be consistent.
No. If the age of majority is 21, then beneath that age a person is considered a child. A child can not enter contracts, or do any of the other things children are restricted from doing.
I think reasonableness is a rather critical term in your formulation. It is very difficult to find any reasonable basis under which a 20-year-old can drive a tank (or carry a gun) as a soldier, or carry a gun as a sworn peace officer, but not carry one for his own use (at least so long as any idiot over 21 can do it.)
I am also pro-gun (at least by the standards of this board) and I think that both you and Bone are misreading the the Heller court’s comments on interest balancing. At no point in time do they say that you cannot employ traditional bases of analyzing the constitutionality of a law, this requires a balancing of interests but not in the same sense that it is meant in Heller. When you employ strict scrutiny/intermediate scrutiny/rational basis analysis you are supposed to consider the state interest in having a particular rule. And if that rule discriminates against a subset of the population, this may be OK as long as that subset is not a suspect class and it meets the appropriate standard of review.
In short, I think Bone’s position rests on two definitional errors. I think he is misinterpreting what is meant by a “total ban” or “complete prohibition” and what is meant by “interest balancing”
I think they both get part of it right and part of it wrong.
The Cert peitition is over 200 pages so I just read their executive summary at the top. I find this passage notable:
“Congress’ factually unsupported
“predictive judgment” that they are too “irresponsible”
to be entrusted with them”
Doesn’t this imply that things might be different if Congress had a of facts? I asked upthread if you think things would be different if Congress findings found that there was an unacceptably high level of law abiding citizens between the ages of 18 and 21 (or more likely 25) committing gun crimes. Lets say this is supported by the fact that folks 21 to 25 are disproportionately likely to be legal gun owners committing gun crimes? The Cert petition leaves open the notion that this might be permissible.
There is a reason we needed the 26th amendment. There were plenty of states that had an age of majority of 18 for purposes of entering into legal contracts, get drafted and fight in wars, be tried as an adult, etc. but the legal voting age in the majority of states was 21. I can think of no more basic right in a constitutional democracy than the right to vote and yet we did not give it to people who were adults for almost all other purposes. So we can indeed truncate constitutional rights based on age without being consistent with the general age of adulthood. We can also give limited right to those under that age.
But if you changed the law, children would not be restricted from doing it.
They can, they just can’t buy it from an FFL.
If you want to require a reasonable basis why we would restrict some right to civilians that we extend to members of the military and police, I think that is a loser for the pro-gun side. The police power is one of the core state powers.
Hence the part about “so long as any idiot over 21 can do it.”
(my bold)
First, the only way that ‘suspect class’ comes into play is if there is an equal protection argument/claim. The discussion at hand thus far has not raised this issue. It was raised by the NRA in their arguments, however that was just one prong. The stronger argument was the 2nd amendment claim to which I believe is persuasive by itself. I put forth no opinion on the matter of equal protection and as such the discussion along those lines is irrelevant.
Second, if I am 18 years old and have no living relatives, there is a total ban on the purchase of handguns. Banning the purchase via the most common method is not permissible simply because other methods are available. This doesn’t work with the 1st amendment, and should not work with the 2nd. This would not be permissible for people who are over the age of 21 so the only way this is permissible for those between 18 and 20 is if they don’t have the same protections of the 2nd.
Third, interest balancing has a place when you are talking about levels of scrutiny. Heller clearly dismissed rational basis, and went on to say that DC’s scheme would fail any level of scrutiny. They chided the dissent’s attempt at interest balancing saying that it wasn’t appropriate because DC was imposing a complete ban. Interest balancing with respect to the 2nd amendment is off the table when it comes to a total ban. Do you agree with that?
This was one prong in their petition for cert. In these petitions I think it’s common to lay out all the potential ways that a favorable ruling could be achieved.
The consensus when it comes to 2nd amendment analysis is a two prong test. The first is whether the 2nd amendment is implicated. The 2nd is the degree of that implication to determine the level of scrutiny. The 5th circuit court stated that the law at hand did not implicate the 2nd amendment so the argument failed at the first prong. It went on to do analysis under the 2nd prong in the interest of completeness. Their conclusion in both cases, that the 2nd amendment wasn’t implicated because those individuals ages 18-20 don’t enjoy the protections of the 2nd amendment, and that the restriction on purchase for this age group did not burden the rights of these folks even if the first prong was met, were both in error IMO.
The cert petition arguing both aspects of the analysis is not dispositive.
For you, it seems you’ve done the two prong analysis:
[ol]
[li]Is the 2nd implicated?[/li][li]What is the nature of the implication and what level of scrutiny is required?[/li][/ol]
And come to the following conclusions:
[ol]
[li]Yes.[/li][li]Age based and permissible as it meets a compelling state interest in reducing crime.[/li][/ol]
Is that a fair summary?
The fifth circuit on the other hand came to these conclusions:
[ol]
[li]No.[/li][li]Age based and permissible as it meets a compelling state interest in reducing crime.[/li][/ol]
My position would be:
[ol]
[li]Yes.[/li][li]This is not an outright ban on the age group’s access to guns, or even handguns, but it is a serious impediment to their participating in the lawful market and, for 18-to 20-year olds not living at home, it may effectively ban lawful possession of handguns. Denying access to handguns in this manner must be viewed as coming close to banning their legal possession by the age group in question, contrary to the rights they possessed at the founding. This is an impermissible ban.[/li][/ol]
Essentially you are saying that if Dick Heller were 20 years old at the time of his suit, all other things being equal, you would approve of that ruling going the other way since you believe it to be permissible to ban 20 year olds from purchasing handguns. I disagree but then I think we are at an impasse.
So the hypothetical has ventured into the territory where we allow children to enlist in the military, enter contracts, vote, and be financially responsible. I think that is too far fetched to respond as the ramifications are too sweeping.
I was just pointing out that you can have facially discriminatory laws that truncate the rights of a subset without running afoul of the constitution.
Can you buy one from me in a parking lot or from one of your 21+ year old friends? Nevermind, lets just assume that this is in fact a total ban on the ability of an 18 year old to purchase a handgun.
You seem to be saying that you cannot do to the part what you cannot do to the whole. Therefore either the second amendment rights are impaired even before they passed a law restricting their access to handguns OR the restriction is unconstitutional. I disagree.
A total ban? Yes I agree.
I agree that the second amendment is implicated and I agree that the restriction burdened the right.
Yes. Not necessarily a compelling state interest but at least an important state interest meeting the requirements of intermediate scrutiny.
I disagree with the first and I also disagree with how they get to the second conclusion.
I don’t get how you jump from, this is a ban to this is an impermissible ban.
The case could not go the other way. If Dick Heller were 20 years old, he wouldn’t have standing unless he also litigated the age restriction. He would be the wrong plaintiff for such a case.
I don’t know if this is a fruitful line of analysis for this case but I think a state could decide that 17 year olds can enter into and be held accountable for contracts. I think that if the state said the legal age for second amendment rights is 21 and that we are going to permit a PRIVILEGE to those under 21 but older than 18 to purchase long guns, I think that would be permissible.