You'll Grow Into It: How Federal and State Courts Have Erred in Excluding Persons Under Twenty-One from 'the people' Protected by the Second Amendment

Abstract

After more than two centuries of jurisprudential stillness, the United States Supreme Court undertook the task of discerning the Second Amendment’s meaning in District of Columbia v. Heller, holding that the Second Amendment protects the individual right to self-defense. Since Heller, the lower courts have grappled with determining the scope of the Second Amendment. One question of scope—the subject of this piece—is at what age does a person come within the scope of the Second Amendment’s protections? Some federal and state courts have suggested, and in some cases held, that persons under twenty-one do not enjoy Second Amendment rights. However, colonial and founding era history, as well as the Court’s jurisprudence regarding other individual, constitutional rights, suggests otherwise. Research reveals that during the colonial and founding eras, persons as young as sixteen often were required to bear arms not only for militia purposes, but generally and irrespective of military service or purpose. Additionally, the Court’s long-standing First Amendment, Fourth Amendment, and privacy-abortion jurisprudence is clear: Constitutional rights do not vest only when a person attains a particular age. Instead, individual, constitutional rights protect persons of all ages, although the rights of minors under eighteen—while meaningful—are often less robust than their adult counterparts. In light of this history and jurisprudence, courts should begin recognizing that persons eighteen and older enjoy full Second Amendment rights, while minors under eighteen maintain truncated—albeit meaningful—Second Amendment rights.