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McGraw, the Age of Majority, and the Enduring Relevance of the Second Amendment’s Prefatory Clause

By on September 1, 2022 Categories: , ,

Jake recently covered the Northern District of Texas decision in Firearms Policy Coalition v. McGraw, which struck down Texas’ ban on the public carry of handguns by those under 21 years old.  In McGraw, the court reasons that the Second Amendment’s reference to a “well regulated militia” means that the amendment must necessarily protect the people who might have served in the militia in the Founding Era:

[L]ogic demands that if an individual was (or is) a member of the “militia,” the Second Amendment’s protections extend at least to those who constitute the militia. That is, although the Second Amendment is not limited to only those in the militia, it must protect at least the pool of individuals from whom the militia would be drawn.

And Heller held that “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”  The argument seems to go as follows:  if the Second Amendment protects anything, it is the right of those who would have been eligible to serve in the militia to keep and carry the modern equivalent of the types of weapons they would have used in militia service.

While Heller observed “that modern developments have limited the degree of fit between the prefatory clause and the protected right,” courts continue to focus on militia service in evaluating Second Amendment challenges—especially those dealing with restrictions on gun possession and public carry of guns by specific age groups.  In Hirschfield v. ATF, for example, the Fourth Circuit looked to militia laws to strike down federal regulations restricting the sale of handguns to 18-20-year-olds.  The court observed that “[t]hose who were obligated to serve in the militia and bring their own arms fall unambiguously within the original public meaning of ‘the people’ who had a right ‘to keep and bear Arms.’”

In the Founding Era, however, the legal age of majority was 21.  As Saul Cornell has explained, the idea that being required to serve in the militia represented an entryway to “young adulthood” at the time of the Founding is dubious at best, because an 18 to 20-year-old militia member had essentially no independent legal rights:

Consider the following hypothetical. Imagine the situation of an eighteen-year-old who would have been required by law to serve in the Massachusetts militia. The young man in question has a religious awakening and decides that he wishes to abandon his family and join one of the pacifist religious sects that flourished in the Founding Era, the Shakers or Sandemanians. Now imagine that his father, master, or other guardian forbids him to take such action. He insists on asserting his right of conscience and free exercise. His father rejects his claim, administers corporal punishment to his child, and orders him to report to muster. Although repellant, odious, and arguably criminal by today’s standards, a minor living in the Founding era would have no legal recourse to challenge the decisions made by a father or guardian regarding religious practices. The patriarchal authority of fathers or other legal guardians would have been absolute in this sphere. A minor facing this desperate situation would have been forced to follow the decisions made by his father or legal guardian. Moreover, if the father wished to enforce this decision with the administration of corporal punishment, that would also have been perfectly legal under the common law rules governing domestic relations.

The opinion in McGraw spends little time on the age-of-majority issue, finding only that the age of majority in the abstract is not probative (without reference to the particular right at issue), that other constitutional provisions protect minors, and that Texas failed to point to any analogous law based on the age of majority.  As an initial matter, the fact that certain constitutional rights extend to minors isn’t all that persuasive.  As Eugene Volokh has observed, minors certainly possess the right to freedom of speech, for example, “[b]ut they entirely lack other rights, such as the rights to marry, to exercise sexual autonomy, and to access highly sexually themed publications.”  To the final point, the Court observed that Texas’ purported inability to identify analogues “is relatively expected: The militia was composed of those that had yet to attain the age of majority.” 

What does the fact that those below the age of majority served in the militia really tell us about the historical scope of the right to keep and bear arms?  Returning to Professor Cornell’s piece, militia service by an 18-20-year-old “w[as] not undertaken by isolated individuals but . . . in a situation in which adults supervised minors.”  And the common-law age of majority was, in fact, closely tied to physical strength and military training.  Scholars have posited that the age of majority rose to 21 around the time of the signing of the Magna Carta in 1215, both because of technological developments that made weapons heavier and more cumbersome to carry and because “the added skill required in combat . . . g[a]ve rise to the need for the more thorough training of the young potential warrior.”  Going even further back, “Roman law placed free males who were technically ‘of full years and rights’ under the temporary guardianship of adults known as Curatores” until age 25, thought to “coincide with young males’ attainment of full intellectual maturity.” 

To the extent that American colonies and states adopted the English age of majority, then, it seems that the age-21 cutoff was tied directly to concerns about arms-bearing.  And it is also not surprising that, despite the age of majority, minors were required to serve in state militias (although, in certain states, only with the approval of their father and with guns paid for by the father).  Indeed, the militia was where those minors could expect to receive the training and instruction in weaponry that would enable them to effectively and safely operate heavy, notoriously-finicky colonial-era firearms.

What is strange—and almost certainly ahistorical—is the idea that there is a historical tradition of allowing minors to obtain and carry guns in public without receiving any training on how to safely use those weapons.  A driving force of the increase in the age of majority was the concern that technological developments in weaponry and warfare meant that it took longer for an individual to be trained to the necessary level of skill.  It would be odd to disregard entirely the training aspect of the Founding-era militia when interpreting the Second Amendment.  If the amendment protects those who constitute the militia, it presumably protects them in a similar way to how they would have been protected around the time of the Founding, when their right to keep and bear arms was contingent on actually serving in the militia and being trained by older adults and was entirely subject to parental whims.

Texas is a permitless carry state and, barring a successful appeal in McGraw, an 18-year-old not subject to the few disqualifying factors under state and federal law (such as a felony conviction) will be able to purchase and carry a handgun without any training on how to use the weapon.  When one considers the importance of proper training in the historical record, it seems unfathomable that a statutory scheme authorizing 18-year-olds to carry guns in this manner is consistent with the American tradition of firearms—as opposed to, say, a statutory scheme that couples enhanced training requirements for 18-20-year-olds with an extreme risk protection (or similar provision) authorizing parental involvement to remove weapons if a parent is concerned about harm to self or others.