Do 18 Year Olds Have a Constitutional Right to Guns? Dissenting from the denial of certiorari in Silvester v. Becerra last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like sex with 18 year olds low-level scrutiny of the rational basis test. The idea that the right to possess firearms is “disfavored” anywhere in America would likely be received with puzzlement in most of the world.
Indeed, last week’s juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas High School pleading for the grownups to do something to protect them was arresting. Beyond the symbolism of Justice Thomas’s poorly timed Silvester dissent lies a question of law. What would real intermediate scrutiny of firearms regulations look like? I’ll try to answer that question by comparing a classic case of such intermediate scrutiny with a hypothetical challenge to the proposal to raise the minimum age for the purchase of assault rifles to 21. Exsting federal law sets the minimum age for purchase of a handgun from a licensed dealer at 21, but long guns, including so-called assault rifles like the AR-15, may be purchased at age 18. And 18-year-olds can legally purchase handguns in private sales and at gun shows. Or for that matter, suppose someone were to challenge the existing law forbidding 18-20-year-olds but not 21-year-olds from purchasing handguns from licensed dealers?
As it happens, the classic case of intermediate scrutiny involved distinctions between 18-20-year-olds and 21-year-olds. The law was challenged as sex discrimination in violation of the Equal Protection Clause. Now let’s apply that logic to a law distinguishing between 18-20-olds and 21-year-olds. The relevant data show that 18-20-year-olds probably commit slightly fewer violent crimes than the next older age cohort. The data here compare 2016 murder rates for 17-19-year-olds with 20-24-year-olds.
But is that the right number? In 1993, at the peak of the now-thankfully-receded crime wave, the arrest rate for weapons offenses for 18-year-old males was about ten times higher than for the rest of the population. That looks more like the ten-to-one ratio in Craig, although it’s actually somewhat lower because the higher number here is based on excluding less violent females. Might intermediate scrutiny be stricter for gun regulations than for alcohol regulations based on the greater danger posed by guns? In 2016 there were about 11,000 gun-related homicides in the US. Meanwhile, 18-21-year-olds are more likely to be victims of violent crime than people in any other age group. Thus, the argument can be made–based on the SCOTUS understanding of the Second Amendment as protecting a right to armed self-defense–that 18-21-year-olds have the greatest need for firearms.