We knew it wouldn't be long before gun control advocates would try to get around the Supreme Court's dicta in the Wolford case, and one of the first instances comes from the Connecticut Attorney General's office.
The state of Connecticut and the federal government are being sued by the Second Amendment Foundation, Connecticut Citizens Defense League, and several individual plaintiffs over the state and federal laws that prohibit adults under the age of the 21 from legally purchasing handguns at retail. Connecticut goes even further, forbidding adults younger than 21 from obtaining a carry license as well.
After the Wolford decision was handed down by the Supreme Court last week, the judge in Succow v. Bondi asked for additional briefing from both the plaintiffs and defendants on what impact the decision might have on the issues at hand. According to the state of Connecticut, the answer is "none at all."
The state argues that "Wolford does not help Plaintiffs... evidenced by the fact that, after issuing Wolford, the Supreme Court denied certiorari in two cases upholding age-based restrictions rather than vacating the judgments and remanding them for reconsideration (“GVR”) in light of Wolford."
That's true enough, but given that there's a circuit court split on the issue of Second Amendment rights for young adults, the Court's decision to simply deny cert in these cases can hardly be seen as evidence that SCOTUS accepts the premise that our right to keep and bear arms doesn't kick in until we turn 21.
Connecticut then claims that the historical analogues they've provided are more than enough to prove that the state law in question is constitutional.
The undisputed record before the Court includes more than 100 historical restrictions on minors’ ability to access and use firearms. From 1763 through 1859, laws that restricted minors’ ability to access and use firearms were enacted in ten states. From there, restrictions on minors’ possession and use of weapons proliferated, with over 100 laws restricting minors’ access to firearms enacted between 1861 and 1933, across 46 states. That is more than enough to meet the government’s burden on Bruen’s step two.
And if this case was about the Second Amendment rights of minors, the state might have a point. We are talking, however, about adults being deprived of their right to keep and bear arms. Connecticut's argument that 18-to-20-year-olds were considered minors back in the day should be irrelevant. The appropriate analogue would be widespread and longstanding laws that prohibited young adults from purchasing or possessing a handgun, but Connecticut can't point to those statutes because they weren't any in or around 1791 or 1868.
As bad as Tong's argument is, it's still better than the one presented by Patrick Daley, the police chief in Norwich, Connecticut and another named defendant. In his response to the court's request, the chief's attorney Michael Driscoll ignores everything but the finding that Hawaii's "vampire rule" violates the Second Amendment, and claims "Wolford does not bear on Connecticut statutes" in any way, even in determining whether or not they're constitutional.
I think Wolford is instructive in how the State must rationalize its law, but the Hemani decision should also come into play. The first question that the court must address is whether or not the state and federal law implicate the plain text of the Constitution. That's easy enough, or at least it should be. We're talking about the right to acquire, keep, and bear arms commonly owned in self-defense, after all. The next question is whether adults under the age of 21 part of 'the people" who possess a right to keep and bear arms. "The people" has generally been seen by the Court as members of the political community; a definition which would have excluded that age group at the time of the Founding, but not today.
To suggest that a 19-year-old can be prohibited from carrying a handgun today because he was seen as a minor 200 years ago is silly. There are statutes from that same time period depriving Native Americans and Catholics from possessing firearms. That doesn't mean they would be upheld today if they were still on the books.
Young adults are unquestionably a part of "the people." As SCOTUS held in Hemani, "The Second Amendment protects the right of 'all Americans' to keep and bear firearms for self-defense." Section 922(g)(3), which was the federal statute at issue, prohibits an entire class of people from exercising their Second Amendment rights: unlawful drug users. SCOTUS found that was too broad a brush, noting that "[a]ffording the government 'broad power to designate any group as dangerous and thereby disqualify its members from having a gun”'would risk allowing it to 'quickly swallow' the Second Amendment" (quoting then-Judge Amy Coney Barrett's dissent in Kanter v. Barr).
The Court suggested that there needs to be evidence of some particularized danger posed by members of that class in order for 922(g)(3) to be constitutionally applied (as well as historical analogues that show the prohibition fits within the national tradition of gun ownership). There's no way for an outright ban on under-21s purchasing and possessing handguns to pass that test. Even if members of that demographic are more likely to commit violent crime than a 45-year-old, the vast majority of 18-to-20-year-olds will never commit a violent crime of any kind.
I wish the Court had granted cert to the age-based cases, or at least GVRed them. Their failure to do so, though, by no means is an endorsement of the idea that young adults can be deprived of the individual liberties. If the district court follows what SCOTUS had to say when explaining how it reached the Hemani and Wolford decisions, I don't think the judge has any option to but to rule with the plaintiffs and against Connecticut and the DOJ.
