The anti-gun Left is not happy with the Department of Justice's recent conclusion that the federal prohibition on handgun sales to adults under the age of 21 violates the Constitution. That's not particularly surprising, given their abject animosity towards our right to keep and bear arms.
Still, some gun control fans have gone off the deep end after the DOJ's Office of Legal Counsel issued its advisory opinion on 922(b)(1) last week. That includes Wichita Eagle opinion editor Dion Lefler, who claims the Justice Department's new stance is all part of an underhanded effort on the part of the Trump administration to sell more guns.
"Our laws deem an eighteen-year-old 'mature enough to be drafted, vote, serve as a juror, and be sentenced to death,'" the opinion says.
In the Justice Department's warped logic, that means that they are "members of the political community," and thus entitled to full protection of the 2nd Amendment — so if people over 21 can own handguns, people of voting age but under 21 should be able to, too.
The opinion just sort of breezes past the fact that they can't buy cigarettes, or drink, or gamble in a casino if they're under 21.
Lefler's column just breezes past the fact that none of those are rights protected by the Constitution, unlike our right to keep and bear arms. Of course, he also got the federal statute wrong too. There's no federal prohibition on 18-year-olds owning handguns, just purchasing them at retail.
While it might seem obvious that members of the political community should be fully vested with their enumerated rights, Lefler sees something more nefarious at work.
... the real victims, per Justice Department thinking, are the gun dealers, thwarted by Congress from expanding their business to a younger market.
... How would expanding availability of handguns to the 18-20 crowd make any of us safer?
And please spare me your hand-wringing concern for the poor, downtrodden weapons dealers of America.
Too many young people are already getting wounded and even killed right here in my town, and I couldn't care less about the potential profits of the people who would like to sell them more guns.
The words "gun dealer" appear a whopping 11 times in the OLC opinion, and most of those are references to the federal statute in question, which prohibits dealers from selling handguns to adults under the age of 21. But while Lefler contends that the OLC's approach to 922(b)(1) is all about aiding the firearms industry, the opinion itself argues the opposite.
The fact that section 922(b)(1) penalizes the dealer rather than the buyer does not change our conclusion. The Second Amendment’s operative command confirms the point: The right to bear arms “shall not be infringed.”U.S. Const. amend. II. Dictionaries contemporary to the Amendment’s passage defined “infringe” to encompass hindrance of a right, not merely its outright destruction. A prohibition that operates on sellers so as to close the primary market to a class of buyers hinders those buyers’ rights just as a prohibition addressed to the buyers themselves would. If a flat ban on selling to a subset of “the people” evades the Second Amendment simply because it operates through the regulation of dealers, then “step by step, other limitations on sales could easily displace the right altogether.”
That last quote in the OLC opinion comes from the judge in Reese v. ATF, who concluded long before DOJ did that the ban on handgun sales to under-21s violates the Constitution.
Lefler doesn't even acknowledge that decision in his column, presumably because he didn't want to try to argue that a federal judge is somehow a part of this shadowy conspiracy to sell more guns.
Beyond the Reese decision, several other federal courts have also ruled in favor of young adults trying to access their Second Amendment rights. The Third and Eighth Circuits have held that 18-to-20-year-olds have the right to bear arms in public, and a district court in the Fourth Circuit has concluded that under-21s also have the right to purchase handguns.
The Fourth Circuit as a whole disagrees, but it did not conclude that these young adults were just pawns of the firearm industry. Instead, it looked beyond the historical tradition of gun regulation and concluded that Founding Era common-law rule allowing people under 21 to void contracts sufficed as a historical analogue to the modern prohibition on handgun sales.
The OLC opinion doesn't ignore the Fourth Circuit's argument that the "infancy doctrine" negates a young adult's right to keep and bear arms. Instead, it picks it apart.
Although we do not question the Founding-era economy’s dependency on credit or the voidability rule, we conclude that this rule is not “relevantly similar” to a modern bar on the purchase of firearms. Like the habitual drunkard laws rejected in Hemani, the infancy doctrine “targeted different kinds of people, did so for different purposes, and operated in different ways” than the federal age restrictions at hand here.
The infancy doctrine applied to minors, while 922(b)(1) applies to adults. The modern statute was meant to address “the prevalence of lawlessness and violent crime” by blocking “emotionally immature or thrill-bent juveniles and minors prone to criminal behavior" from purchasing handguns. The infancy doctrine was meant to protect minors from entering into exploitative contracts. The "who," "how," and "why" of the infancy doctrine are all wildly different than the "who," "why," and "how" of 922(b)(1), so it fails to pass muster as an appropriate historical analogue.
Lefler claims that young adults are more likely to commit violent crimes than older Americans, which is statistically true and utterly irrelevant to the discussion.
According to Giffords, adults between the ages of 18 and 29 have the highest number of gun-involved deaths. Should we (or could we) limit gun sales everyone under the age of 30? In fact, even those between the ages of 30 and 49 have a gun-involved homicide rate higher than the national average, so maybe our Second Amendment rights shouldn't kick in until we turn 50.
For all I know Lefler would be on board with that proposal, but there's no way that it would ever hold up in court. And from a common sense perspective, while the gun homicide rate among 18-to-29-year-olds might be almost double the rate between 30-and-49-year-olds, the vast majority of people in every age group will never commit a violent offense with a firearm. The federal prohibition on young adults purchasing the most common firearm for self-defense punishes far more law-abiding citizens than it impacts violent offenders.
Gun control advocates have really leaned in to the "greedy gun CEO" trope in recent years, but there is absolutely no evidence to back up Lefler's claim that the DOJ's new position on handgun sales to adults under the age of 21 is all about putting more money in the pockets of gun industry execs. Instead, the evidence points to the DOJ reversing course because there's a strong likelihood that 922(b)(1) was going down to defeat in the courts, and because an honest inquiry into the history of gun regulations shows no widespread or longstanding prohibitions on adults exercising their Second Amendment rights because of their age.
