To the extent that McDonald v. City of Chicago and its progeny allow for firearm ownership within the City of Chicago, the practical argument that parents who have guns within the City limits might also wish to teach gun safety to their children is not without merit. (Although, as I noted in my concurrence in [an earlier phase of this case], “[t]here is no ban on training with a simulator and several realistic simulators are commercially available, complete with guns that mimic the recoil of firearms discharging live ammunition. It is possible that, with simulated training, technology will obviate the need for live‐range training.”) And the legal argument that the outright ban is unconstitutional has merit as well.
I write separately on this point to note the limited rights of minors under the Second Amendment. Importing the concepts from First Amendment jurisprudence into this Second Amendment context, as courts have come to do, it is worth noting that the First Amendment rights of minors are limited — in some contexts far more than others. Although minors do not “‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ … the First Amendment rights of students in the public schools are ‘not automatically coextensive with the rights of adults in other settings.’” And First Amendment rights are particularly limited when the interest balanced on the other side is the health and safety of minors. See Morse v. Frederick, 551 U.S. 393, 407 (2007) (upholding school’s discipline of student who displayed pro‐drug banner noting that deterring drug use by schoolchildren is an “important — indeed, perhaps compelling interest” given the potential severe and permanent damage to the health and well‐being of young people); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975) (“[i]t is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults.”); Ginsberg v. State of N.Y., 390 U.S. 629, 637 (1968) (government can prohibit sale to minors of sexually explicit material that would be available to adults).
Outside of the First Amendment context, it goes without saying that the government may restrict the rights of minors for purposes of protecting their health and welfare. A state’s interest in the welfare of its young citizens justifies a variety of protective measures. Every jurisdiction in the country protects the health, safety, and welfare of minors by prohibiting them from purchasing alcohol and cigarettes, by restricting at what age they may drive and with what limitations, when they may enlist in the military and work, when they may marry, when they may gamble, how long they must attend school, and when they can enter into binding contracts. Some of these regulations, like those surrounding marriage and pregnancy, burden fundamental rights and yet have been upheld regardless of the increased scrutiny given to such laws.
In addition to the general protections noted above, states and municipalities impose laws and regulations that protect the health and safety of children in myriad specific ways, many of which interfere fairly significantly with the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
For example, Illinois law requires adults to secure children under the age of eight in an approved child safety restraint while riding in vehicles. It prohibits children under the age of fourteen from being left without supervision for “an unreasonable period of time without regard for the mental or physical health, safety, or welfare of that minor.” The Illinois Administrative Code even prohibits a day care facility from placing a baby to sleep in any position other than on her back, regardless of the parent’s request.
Sometimes the encroachments can be severe even when the risk is low. Parents have been charged with neglect for allowing their children to walk to a park, or walk to school, or play unsupervised in a back yard. This is true despite the fact that the rate of occurrence of the main concern, stranger abduction, is quite low (approximately 60‐100 per year) and continually declining.
In short, statutes, regulations, law enforcement and social services resources are employed to protect children from harm even where the risk of harm is slight or negligible. And as the majority states, “No one can disagree — and we certainly do not — that firearms in the hands of young children or unsupervised youth are fraught with serious risks to safety.” I would add that firearms even in the hands of older children, even while they are supervised by trained instructors, can have deadly consequences. In one highly publicized incident on an Arizona shooting range, a nine‐year‐old girl accidentally killed her instructor, Charles Vacca, when the Uzi she was firing became too difficult for her to control, jumping out of her hand and firing a bullet into the brain of her instructor. But other recent shootings by and of children on ranges have slipped by without as much attention. In many cases the accidents did not involve high powered weapons or even a child as the shooter. In some incidents, the child at the range was killed by an adult. [Citations omitted. — EV]