On May 11,  a federal court in Richmond, Virginia ruled that 18 year old’s have a right to own firearms regardless of state and federal laws limiting that right because the right to possess firearms is guaranteed by the 2nd Amendment of the Bill of Rights. The case is called Fraser v. Bureau of Alcohol, Tobacco and Firearms. This is the latest chapter in a series of cases that began with New York State Rifle Associations, Inc. v. Bruen, decided by the U.S. Supreme Court in June 2022.

            In May 2022 Corey Fraser, age 18, decided he wanted to purchase a Glock 19 from a licensed dealer of such weapons. Under federal law, federally licensed dealers may not sell to persons age 18-20. Fraser and several other plaintiffs in that age bracket challenged the constitutionality of the federal law and asked it be voided. In the end the court ruled they were entitled to purchase these weapons as the federal law was unconstitutional. The 71 page decision is appended to this article.

            This is not a firearms blog. But a lot of children ages 18-20 live at home and some are still attending secondary school. Under Pennsylvania law, they are entitled to support until they attain age 18 or complete high school. We like to think that given such an entitlement, they are under the “control” of their parents. But we also know that parents don’t always agree about issues affecting children and that the Columbine massacre told us that kids can get guns even when the law says they can’t.

            The 2nd Amendment was adopted in late 1791. The most recent decisions of the U.S. Supreme Court suggest that when we interpret these amendments we should be guided by the law of that time.

            The problem remains that the law of that time bears little relation to today’s reality especially in terms of parent-child relations. When the 2nd Amendment was adopted “childhood” as a place in time was just evolving. An 18th century father essentially “owned” his child and many would add that an 18th century husband “owned” his wife. As Claire Lyons wrote in her 2006 study of gender and power in the 18th century, a father had the responsibility to support a child to age 7 but at that age he was entitled to bind the child out to be the apprentice of a tradesman or merchant. That apprenticeship could last as much as seven years during which “control” of the child was assigned to the master. Only those parents who chose and could afford private school could educate their child. At age fourteen a child was effectively an adult even though legal rights such as the right to vote or form contracts was deferred to age 21. 1 Blackstone, Commentaries on the Laws of England 449 (1758). Beginning at 14 a child could indenture himself to another for employment and contract for necessities. A 14 year old could contract to marry. Otherwise rights were largely deferred to age 21.

            Until the recent U.S. Supreme Court decisions the trend was toward giving children rights at an earlier age. Thus, children at age 14 in Pennsylvania have the right to confidentiality when they converse with a therapist. Our last article noted that children at 14 can arrange for in patient treatment. The right to vote was reduced to 18 in response to protests during the Vietnam War complaining that humans old enough to serve in combat should be eligible to vote in elections. This produced other laws which accelerated adult rights from age 21 to 18.

            Now, back to the guns. Your child wants one and, unlike an 18th century child, he or she has the resources to buy it. Until today’s ruling, a parent had the protection of a federal law preventing licensed dealers from selling to people under 21. Today the parent’s only power is to threaten the child with eviction; a remedy almost no parent wants to invoke. This now becomes a parenting pivot point where one parent says the gun is welcome at home while the other parent objects. What is a judge to do in a world where the law seems to say that the child is entitled to the gun?  Moreover, why doesn’t a 16 year old have 2nd Amendment rights; or any child? That seems absurd except that the highest court in the land has decided the language about a “well regulated militia” has been deemed legally insignificant. After all, an eight year old in Pennsylvania is eligible for what is termed a “mentored hunting permit.” Footnote 18 to the opinion tries to draw a line at age 18 discussing the fact that people under that age are not part of the ”political community.” But the same opinion is replete with citations to District of Columbia v. Heller, 554 U.S. 570, 635 (2008) which references this right as one of “self defense.” Do those under 18 have no such right? After all the first, fourth, fifteen, eighth and fourteenth amendments apply to “all” Americans regardless of age.  (Opinion at p. 38). The opinion further notes that during the American Revolution sixteen year olds were commonly admitted to the militia. (Id. p.44)

            This is a challenge. Guns now exceed motor vehicles as the leading cause of death among children. We are averaging 30 school shootings a year since 2018. This year we seem to be tracking toward 50 school shootings, a number on par with 2022. Yet, our reverence for the 2nd Amendment and penchant to view 1791 as the “good old days” when interpreting constitutional law seems to be on a collision course with the welfare of our children. And today, if a parent asks a court to forbid his or her child to have such a weapon, it does not seem clear that any judge has the right to grant such relief.

Fraser v. BATF can be read at: https://storage.courtlistener.com/recap/gov.uscourts.vaed.524643/gov.uscourts.vaed.524643.47.0.pdf