Louisiana restriction on handgun possession by under-17-year-olds passes “strict scrutiny”

So held the Louisiana Supreme Court in State ex rel. J.M. (La. Jan. 28, 2014). In 2012, Louisiana voters strengthened the Louisiana Constitution’s right to bear arms provision, so it now reads:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.

This is now likely the strongest of the 44 state constitutional provisions that protect the right to bear arms, at least on its face. (Remember that state constitutions can provide broader protection against state laws than the federal constitution provides.) But of course the key question is what “strict scrutiny” means. The legal definition of the term is that a law passes strict scrutiny if it is “narrowly tailored to a compelling state interest,” but that doesn’t tell us much by itself, especially since “narrowly tailored” and “compelling state interest” have never been precisely defined.

In some areas, such as content-based speech restrictions, race discrimination against nonwhites, and religious discrimination, “strict scrutiny” has been applied in a very demanding way that is almost certain to invalidate the law (“strict in theory, fatal in fact“). But in other areas, such as religious exemption claims back when the Supreme Court purported to apply “strict scrutiny” to such claims, it has been applied in a less demanding way (“strict in theory, feeble in fact“). And in still other areas, such as race preferences for nonwhites, as well as the freedom of association, it has been applied at some in-between level, or perhaps it has been applied in a very demanding ways in some cases and not in others (to coin a phrase, “strict in theory, floating in fact”).

The Louisiana Supreme Court didn’t specifically define what these terms mean, but it did cite Grutter v. Bollinger, the 2003 “floating in fact” case in which the Supreme Court upheld certain kinds of race preferences in university admissions (though the Court in Grutter, also stated that other kinds of such race preferences would be unconstitutional). And the Louisiana court held that

  1. even “a total ban on a juvenile’s possession of a handgun” would pass strict scrutiny (and therefore the more limited, though still broad, restriction in this statute) does the same, and
  2. the state ban on unlicensed concealed carry of weapons also passes strict scrutiny, at least as applied to juveniles (who aren’t entitled to get licenses).

In the process, the court relied on two main arguments:

1. Tradition: Such restrictions were seen as “the type of long-standing limitation on the right to keep and bear arms with which voters were familiar.”

2. Immaturity of minors: Because “[c]ommon sense, science and social science agree that juveniles exhibit a sometimes transient lack of maturity, impetuosity, suggestibility and vulnerability which would make the possession of a handgun by a juvenile a danger for the public and the juveniles themselves,” such restrictions are “narrowly tailored” to the “compelling state interest” in preventing crime. The more limited (though still quite broad) restriction in this statute, the court said, is even more clearly narrowly tailored.

An unsurprising, and likely correct, result, but it leaves much unanswered for future cases. Here’s one particular question: Louisiana law also generally forbids concealed carry in public by 18-to-20-year-olds, because concealed carry licenses are available only to people age 21 and above. Would this be constitutional, too, on the theory that even 18-to-20-year-olds “exhibit a sometimes transient lack of maturity, impetuosity, suggestibility and vulnerability”? Or would the rule be different for people who today, and for the last 40 years, have been viewed as full-fledged adults?

For more on the indeterminacy of formulations such as “strict scrutiny” in right-to-bear-arms cases, see pp. 1464-73 of this article; for more on other cases dealing with restrictions on gun possession by minors, see this post.

UPDATE: I originally wrote “under-16-year-olds” when I meant “16 years old or under”; I corrected it to “under-17-year-olds.”

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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