There are poorly timed judicial rulings — and then there is the ruling last week by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. It struck down California’s ban on semiautomatic rifle sales to anyone under 21, holding that it violates the Second Amendment.
“America would not exist without the heroism of the young adults who fought and died in our revolutionary army,” Judge Ryan D. Nelson opined for the majority, composed of himself and another appointee of President Donald Trump, Judge Kenneth Lee. “Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.”
That was May 11. Three days later, an 18-year-old white supremacist allegedly fatally shot 10 people and injured three in a predominantly Black neighborhood of Buffalo, using a Bushmaster XM-15 semiautomatic weapon, which police say he purchased legally in New York state.
This apparent terrorist act provides a ghastly counterpoint to Nelson’s lofty musings about musket-toting young patriots. This is the 21st century: Must we live with a constitutional doctrine that requires the states to let youths in their late teens buy warlike weaponry?
The question is pertinent because, via a pair of rulings in 2008 and 2010, the Supreme Court held that the Second Amendment guarantees an individual right to “keep and bear” guns, approximately as the First Amendment protects individual free speech.
The rulings did allow for unspecified restrictions, however; and lower federal courts have used that leeway to uphold several state-level gun laws over the past decade. One was the district court in California that ruled in favor of the state’s minimum-age law last year, only to be reversed by the 9th Circuit last week.
The Supreme Court generally left these cases alone, declining to consider appeals from gun-rights advocates.
In its current term, the court, its conservative majority bolstered by three appointees of Trump, has taken up a gun-rights challenge to a century-old New York City law that limits permits to carry a handgun in public to those with “proper cause.”
The decision is due by July. Judging from their past writings and comments at oral argument in the New York City case, conservative justices, parsing the “original meaning” of the Second Amendment, will view contemporary reality through the foggy prism of early American history — just as the 9th Circuit did.
Nelson’s opinion delved into the ancient origins of posse comitatus law but not the more recent history that prompted California to enact its law: the 2019 mass shooting at a San Diego-area synagogue by an antisemite wielding a semiautomatic rifle, which left one dead and three injured.
The closest the panel majority came was in a concurring opinion by Lee, which analogized the harm firearms can cause to the bad conduct we necessarily tolerate in the name of other constitutional rights: “We do not impinge on the First Amendment based on the outlier actions of a few who may abuse that right," wrote Lee, also a Trump appointee.
Fair enough. But California lawmakers were not suggesting anything close to an outright ban; as dissenting Judge Sidney H. Stein, an appointee of President Bill Clinton, noted, the law still allowed those under the age of 21 with hunting licenses to buy rifles for that purpose and to receive semiautomatic rifles as family gifts.
Also, “outlier” abuses of the Second Amendment can cause far more havoc more directly than words or symbols can. California’s modest goal was to reduce the odds of another massacre — albeit marginally. Given adolescent impulsivity and immaturity, barring sales of semiautomatic weapons to individuals under 21 appears to be a reasonable way to advance that policy.
Five other states, including two — Washington and Hawaii — within the 9th Circuit’s jurisdiction and thus subject to its precedents, have similar laws.
Florida prohibited under-21s from purchasing all firearms in 2018. Like California, Florida acted in response to a terrible crime committed by a heavily armed 19-year-old: the slaughter of 17 people at a school in Parkland, Fla. Unlike in California, the legislature that adopted the law was Republican-controlled. Gov. Rick Scott, also a Republican and now one of Florida’s U.S. senators, signed it.
Florida’s law has withstood a challenge by the National Rifle Association in district court, but the NRA’s appeal is being considered by the Atlanta-based U.S. Court of Appeals for the 11th Circuit. Most of the judges on the 11th Circuit were appointed by Republican presidents, which bodes ill for the Florida law, despite its GOP parentage; the 9th Circuit panel ruling could be appealed to the full court, where the majority was appointed by Democratic presidents.
A circuit split, if any, might have to be resolved by the Supreme Court. And the justices, in the New York City case, are about to give their latest indication of how much — or how little — latitude states and localities still have to curb gun violence.