Firearm Age Restrictions and Voting

During a recent oral argument before the en banc Eleventh Circuit in a Second Amendment challenge to Florida’s post-Parkland ban on the purchase of firearms by 18-to-20-year-olds, a number of judges posed questions about the possible relevance of voting age restrictions.  These questions reveal the complex historical treatment of young adult voting and, perhaps, paint the current efforts to overturn age restrictions on gun purchase and possession as part of a recent and ahistorical trend.

The case, originally captioned NRA v. Bondi, involves a challenge to a Florida state law enacted in the wake of the 2018 Parkland shooting that prohibits the sale of firearms to those under the age of 21.[1]  As discussed in a prior post on the case, in March 2023 an Eleventh Circuit panel upheld the law under Bruen primarily by relying on state laws enacted around the time the Fourteenth Amendment was ratified in 1868 that restricted the ability of minors under the age of 21 to purchase and carry firearms.  That decision was vacated for rehearing by the full court, which also stayed the case pending the Supreme Court’s decision in Rahimi.  After supplemental briefing, the en banc argument took place on October 22 and a decision is expected in the coming months.

Much of the en banc argument was devoted to discussion of the Founding-era history—and, specifically, whether the fact that 18-to-20-year-olds were legally considered “infants” for much of American history constitutes an analogous tradition that might support Florida’s restriction.  As Saul Cornell and Megan Walsh explain in a recent article, “their ability to enter contracts was severely restricted, and contractual obligations undertook by minors were not enforceable against them.”  Some judges on the court seemed to be convinced that these contractual roadblocks—coupled with the fact that minors thus would not have been able to buy firearms on credit—constitute an analogous tradition of point-of-sale restrictions.  The focus on Founding-era history suggests the full court may reach the same result as the panel but without relying so heavily on post-ratification laws and practice.  It also could be that the panel rejects the facial challenge because the law does allow 18-to-20-year-olds to possess guns (the court had asked for briefing on this issue in particular).

Here, however, I’d like to focus on comparisons to the treatment of young adults in other contexts.  While liquor and tobacco sales are also limited to those 21 or older, these are not constitutionally protected rights.  The right to vote is, and a number of judges suggested that this makes voting rights an especially apt comparison.  Congress enacted a minimum voting age of 18 for federal elections in the Voting Rights Act of 1965 and, in a set of subsequent amendments, attempted to mandate that age for state and local elections as well.  In 1970, the Supreme Court held in Oregon v. Mitchell that “Congress can fix the age of voters in national elections, such as congressional, senatorial, vice presidential and presidential elections, but cannot set the voting age in state and local elections.”  In other words, the Court upheld the federal minimum age but held that the states must be permitted control over minimum voting age in non-federal elections (absent constitutional amendment).  The response was swift: the 26th Amendment established a national voting age of 18 for state and local elections in 1971 and was ratified by the requisite majority of states in record time, within months of being proposed in Congress. 

By most accounts, the push to lower the voting age in all elections to 18 was closely tied to the decision to lower the minimum age to be drafted into the military that occurred in 1942.  While the draft age was set at 21 at the outbreak of World War II and for almost the first full year of direct American involvement in that conflict, Congress amended the Selective Service Act in November 1942—a time when Allied prospects were especially bleak—to lower the age to 18.  Some of the same congressman who had backed the draft age amendment subsequently proposed legislation lowering the voting age as well, and the movement gradually gained steam in the decades following the war.  As one scholar describes:

The struggle for youth suffrage began in the early 1940s and lasted to the early 1970s. Although calls for lowering the voting age well predate the mid-twentieth century, these thirty years mark a period of consistent advocacy and action.

Before these efforts, 21 was an almost universal voting age across the country.  Georgia became the first state to lower its voting age to 18 in 1943 through a legislatively referred state constitutional amendment.  Supporters of the amendment used the slogan “old enough to fight, old enough to vote”—tying the proposal specifically to the draft age with an argument that would resonate increasingly with the public during the Vietnam War era.  Florida did not lower its voting age until January 1, 1971, to comply with the new federal amendments that were subsequently invalidated in Mitchell.

The broader point is that the push for an 18-year-old voting age is, relatively speaking, very recent and only gained traction due to the decision to lower the draft age during the most trying year of World War II.  And it took a constitutional amendment to lower the age for state and local elections.  Without the 26th Amendment, a voting rights challenge to a 21-year minimum voting age at the state level evaluated under text, history, and tradition would almost certainly fail.  Despite the fact that the right to vote is constitutionally protected, history shows that states could set the age themselves (this is what Mitchell held) and that the line historically was drawn at 21.  The 26th Amendment analogue here would be a change to the Second Amendment so that it read “the right of the people, to include those aged 18 and above…”  Absent such a change, states appear to retain authority to set age minimums within permissible bounds.  Thus, it might be that Florida may restrict the sale of guns to 18-to-20-year-olds, even if the federal government cannot ban the sale of handguns by federally licenses dealers to that same age group in all states.  That’s generally consistent with the pre-26th Amendment approach to voting age, from 1791 all the way through 1971.