The next big Second Amendment case may concern teenagers. Appeals courts are split on whether the government may restrict 18- to 20-year-olds from buying or carrying guns, and the Supreme Court will consider next week whether to hear one of those cases.
You might expect the differing views on the lower courts to divide along predictable lines, with judges appointed by Republicans on one side and those appointed by Democrats on the other. But this is an issue that has created a rift among conservative judges committed to unearthing the original meaning of the Constitution.
Last month, for instance, Judge William H. Pryor Jr. wrote the majority opinion for the U.S. Court of Appeals for the 11th Circuit, in Atlanta, in an 8-to-4 decision upholding a Florida law that prohibits the sale of firearms to people under 21.
No one doubts that 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 conventional wisdom was that Judge Pryor would face a tough confirmation battle — because he was too far to the right.
“Pryor has done more for the cause than anyone else in the country,” a White House official said at the time. “But the politics are really tough.”
Judge Pryor’s supporters said he would not waver or evolve. “He has a real titanium spine in terms of doing the right thing,” an official of the Heritage Foundation, the conservative group, said of the judge in 2017.
That same year, Nikolas Cruz, then 18, legally bought a semiautomatic rifle from a Florida gun store. A year later, he used it to kill 17 people and wound 17 others at Marjory Stoneman Douglas High School in Parkland, Fla.
Florida lawmakers responded by enacting the Marjory Stoneman Douglas High School Public Safety Act, which made it a crime for people under 21 to buy guns.
In the years that followed, the Supreme Court transformed Second Amendment law, introducing a new test to judge the constitutionality of gun control measures. As Justice Clarence Thomas put it in his 2022 majority opinion in New York State Rifle & Pistol Association v. Bruen, such laws must be struck down unless they are “consistent with this nation’s historical tradition of firearm regulation.”
In last month’s opinion, Judge Pryor examined the historical evidence and found that people under 21 were considered to be minors when the Constitution was adopted. He said he drew two lessons from that fact.
“First, minors generally could not purchase firearms because they lacked the judgment and discretion to enter contracts and to receive the wages of their labor,” Judge Pryor wrote. “Second, minors were subject to the power of their parents and depended on their parents’ consent to exercise rights and deal with others in society.”
The 26th Amendment lowered the voting age to 18 in 1971. But that modern move does not illuminate the Constitution’s original meaning, Judge Pryor wrote.
Seven judges joined Judge Pryor’s opinion, two of them appointed by Mr. Trump.
The four dissenters were all appointed by Mr. Trump. Judge Andrew L. Brasher, who had served as a law clerk to Judge Pryor, wrote that the legal age for adulthood when the Second Amendment was adopted was irrelevant. What matters, he wrote, is whether 18-year-olds are considered adults today.
“The founders adopted a Second Amendment that applies across changes in law, society and technology,” he wrote.
Judge Pryor responded that the original meaning of the Second Amendment was fixed at the time it was adopted. Judge Brasher’s dissent, he wrote, “would have us hold that the Second Amendment turns on an evolving standard of adulthood that is divorced from the text of the amendment and from our regulatory tradition.”
The case that the Supreme Court will soon decide whether to hear involves a Minnesota law that makes it a crime for people under 21 to carry guns in public. Last year, the Eighth Circuit struck down the law, ruling that the Second Amendment required letting those as young as 18 be armed.
“The Second Amendment’s plain text does not have an age limit,” wrote Judge Duane Benton, who was appointed by President George W. Bush. He, too, relied on the 26th Amendment, saying that it “unambiguously places 18- to 20-year-olds within the national political community.”
Joseph Blocher, a law professor at Duke and an authority on the Second Amendment, said there were at least two notable things about those dueling opinions, as well as ones addressing similar issues from the Third, Fifth and 10th Circuits.
One is that “these weren’t the Second Amendment cases that people expected to be queued up for Supreme Court review.” Most observers, he said, have been paying more attention to other open questions, like whether felons and drug users can be disarmed and whether states may ban high-powered rifles.
Another, he said, is that the test announced in 2022 in Bruen “is still proving incredibly difficult for judges to apply.”
“Even judges who are devoted to an originalist approach,” he added, “are finding themselves in very different places in terms of the constitutionality of these laws.”
