Illinois ‘note from your parents’ requirement for gun possession by 18-to-20-year-olds upheld by district court

Different jurisdictions have different rules for gun possession by 18-to-20-year-olds:

  1. Under the law of many states, gun possession without in-person adult supervision is allowed starting at age 18 (in some, even earlier).
  2. Under the law of many other states, long-gun possession is allowed starting at age 18, but handgun possession is restricted for under-21-year-olds.
  3. Under federal law, long-gun possession is allowed starting at age 18, and handgun possession is, too, but professional dealers cannot sell or deliver handguns to under-21-year-olds.
  4. In New York City, all gun possession is generally barred for under-21-year-olds.
  5. In Illinois, all gun possession is generally barred for under-21-year-olds, unless they get written consent from “his or her parent or legal guardian” (or appeal to the Director of State Police or even to a court, which can apparently bypass this requirement if it finds that “substantial justice has not been done”).

Moreover, under Illinois law, the parental consent option won’t let an 18-to-20-year-old possess a gun

  • if both parents are themselves disqualified from owning guns (e.g., are felons, nonimmigrant aliens, or mental patients) or
  • if both parents are dead (since, to my knowledge, a mentally competent 18-to-20-year-old in Illinois can’t acquire a guardian).

And Illinois law provides that parents who do consent will be “liable for any damages resulting from the applicant’s use of firearms or firearm ammunition” — even though (to my knowledge) the relationship between a parent and an over-18-year-old child does not impose tort liability on the parent for any other action by the child. (Such liability might be based on parents’ negligently entrusting adult children — or any other person — with their own guns, or their own cars, knives, or anything else. But that is quite different from the specific liability imposed by this Illinois law, which is strict liability, not negligence liability, and applies solely by virtue of the parent-adult-child relationship.)

So this is quite an unusual scheme, and one that’s very much at odds with modern American law. Adults, even young adults, are generally not legally required to have their parents’ permission to do various things — especially when those things would, for most adults, be seen as constitutional rights. A few states do make the official age of majority 19 (Alabama and Nebraska) or 21 (Mississippi and Pennsylvania), and one of them (Alabama) does require parental consent to marry until 19. But while a 21 age of majority was common in the United States until the early 1970s, it has now overwhelmingly shifted to 18, and is indeed 18 in Illinois.

And it’s a scheme that is in significant ways more burdensome than the federal rule (see bullet 2 above) approved — by an 8-to-7 en banc vote — by NRA v. BATFE (5th Cir. 2012). (See here for the dissent from denial of rehearing en banc.) The Fifth Circuit panel’s decision rested partly on the judgment that, under the federal law, “18-to-20-year-olds may possess and use handguns for self-defense, hunting, or any other lawful purpose” and “they may possess, use, and purchase long-guns. Accordingly, the scheme is sufficiently bounded to avoid strict scrutiny.” Under the Illinois law, 18-to-20-year-old orphans, children of felons and other forbidden purchasers, or children who are on bad terms with their parents can’t possess either handguns or long-guns (or indeed even stun guns); they are completely barred from possessing firearms altogether.

The court decision that upheld the scheme — Horsley v. Trame (S.D. Ill. July 28, 2014) — offered three main arguments for its position, but I don’t think they are on balance persuasive:

1. D.C. v. Heller concluded that the Second Amendment doesn’t invalidate “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,” and limits on under-21-year-olds’ owning guns are such “longstanding prohibitions.” But I think that the 5th Circuit dissent has the better historical argument than the 5th Circuit panel opinion; and in any event the 1800s cases cited by the panel opinion largely involved limits on handguns, not on all guns.

And more broadly, though historically the age of majority has indeed been 21, the pre-1970s cases that I’ve seen involving lesser constitutional rights for minors — lesser free speech rights, lesser religious freedom rights, and lesser criminal procedure rights — involved age cutoffs of 18 or less. Whatever setting the age of majority at 21 might have meant for purposes such as contracting, parental authority, and the like, it seems not to have affected those other constitutional protections.

2. NRA v. BATFE upheld the federal restriction. But, as I’ve said, this restriction is much more burdensome on those 18-to-20-year-olds who can’t get parental permission (whether because the parents are dead, are ineligible, or don’t get along with the child). And the possibility of a difficult, time-consuming, and uncertain petition to the court under the “substantial justice” standard — or of an appeal to the Director of State Police, with no statutory standard that I can see — doesn’t sufficiently reduce that burden, it seems to me.

3. “Defendant has presented a plethora of statistical analysis relating minors under age 21 to violent and gun related crimes. Indeed, logic and data both support the legitimate concern of ‘emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior.’ The FOID Card Act’s restrictions substantially relate to the government’s stated goals.” But while the crime rate among 18-to-20-year-olds is indeed higher than among older adults, I can’t see how this sort of statistical generalization — driven by the danger posed by a small minority of the 18-to-20-year-old population — can justify a restriction on a constitutional right.

That the government may disarm adults based on crimes they’ve committed, or even based on medically ascertained mental infirmities, doesn’t mean that it may disarm them simply because they belong to a demographic category that happens to be higher risk. Even setting aside constitutionally suspect or quasi-suspect categories such as race or sex, there seems to me to be no stronger justification for restricting gun ownership by 18-to-20-year-olds than by (for instance) people who live in parts of town where some inhabitants commit crimes at a much higher rate than in society at large.

In any event, this is an interesting and important Second Amendment issue that keeps coming up (and will presumably come up again in New York City, as well as in some states outside the 5th Circuit that ban handgun possession or acquisition by under-21-year-olds). It will be interesting to see what the 7th Circuit does, when the case is appealed (as I expect it will be).

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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David Bernstein · August 1