Bruen's Historical Tradition Approach and Bans on Gun Possession by 18-to-20-Year-Olds

Yesterday, the United States District Court for the Northern District of Texas issued a ruling on the parties' motions for summary judgment in Firearms Policy Coalition, Inc. v. McCraw. At issue was the constitutionality of Texas's law prohibiting 18-to-20-year-olds from carrying handguns under the Second and Fourteenth Amendments. (I initially learned of this case from Steve Vladek. Jake Charles has some interesting initial analysis of the opinion in a Twitter thread here.)

This case follows on the heels of the Supreme Court's decision in New York Rifle & Pistol Association, Inc. v. Bruen, where the Court overturned New York's handgun licensing scheme and announced a new, "historical tradition" approach to determining the constitutionality of gun restrictions. This approach requires courts to first determine whether restricted activity falls within the scope of the Second Amendment's text. If so, governments may only restrict the activity if it is consistent with a "historical tradition" of analogous restrictions on the activity.

I criticized the Bruen Court's historical tradition approach a couple weeks ago in a blog post, and I go into even greater detail in my criticism in a draft article here. To summarize, the Bruen Court provided virtually no guidance for determining what historical restrictions are analogous to present-day restrictions, or how much historical evidence is sufficient to establish a tradition of analogous restrictions. This allowed the Court to pick and choose what historical evidence it could use, and the Court took advantage of this discretion by applying a restrictive approach to historical evidence and rejecting numerous historic gun restrictions as inapposite. The Court also reached inconsistent conclusion about the number of restrictions necessary to establish a historical tradition--suggesting that three restrictions were insufficient to demonstrate a history of restricting firearm carry, but concluding that two restrictions were likely sufficient to establish a history of restricting guns from "sensitive places."

Bruen's historical tradition approach, while seemingly neutral, allows courts to impose their discretion throughout the analysis by choosing what history is relevant and choosing how much historical evidence is enough to establish a conclusion. We see this discretion on full display in yesterday's Firearms Policy Coalition ruling.

The court begins by determining that the carrying of guns by 18-to-20-year-olds falls within the text of the Second Amendment--concluding that people under the age of 21 fall within "the people," identified in the Second Amendment's, "right of the people to keep and bear arms." I won't go into much detail on this initial part of the analysis, as my focus is on the historical tradition analysis that follows. But the court's analysis appears to support Second Amendment challenges to laws restricting the possession and carrying of firearms by minors. The court notes that constitutional rights "were not generally tied to an age of majority" at the founding, noting that "the First and Fourth Amendments applied to minors at the Founding as they do today." (p. 18, internal quotations omitted). The court concluded that this logic applied to the Second Amendment as well, finding that at the time of the founding "[t]he militia was composed of those that had yet to attain the age of majority." (p. 18). This seems to open the door to constitutional challenges by those under 18 years of age by confirming that they are part of "the people" protected by the Second Amendment. Should other courts follow this logic, governments will need to demonstrate a historical tradition of gun restrictions targeting minors.

As for the historical tradition analysis, the District Court, like the Bruen Court, takes a restrictive approach to Texas's evidence of historical restrictions on the carrying of firearms by 18-to-20-year-olds. The Court rejected examples of founding-era laws that restricted the storage of gun powder, regulated gun use "in the context of militia service," and prohibited the use of firearms "on certain occasions and in certain places." (p. 16 (internal quotes omitted)). These restrictions, the court concluded, were not sufficiently analogous because they did not constitute as absolute of a restriction as the Texas law. The court also rejected historical prohibitions on gun possession by felons and the mentally ill, finding that those restrictions involved individualized determinations that resulted in restrictions on Second Amendment rights.

Most notably, though, the District Court rejected evidence of state laws "at the end of the 19th century" that restricted the purchase or use of firearms by those under the age of 21. (p. 18.) The court noted that the earliest of these restrictions dated back to 1856. The court acknowledged that:

the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to "purchase or use firearms." And by 1923, three more states joined with similar laws. But the record stops short and does not show any "historical analogs" from the Founding Era. (p. 18, internal citations omitted, emphasis added).

The court acknowledged that this raised a question over what history the court should consider. While the Second Amendment was ratified in 1791, the Fourteenth Amendment--the vehicle for incorporating the Second Amendment's protections against the states--was ratified in 1868, well after the first of the under-21 restrictions that the court acknowledges. It therefore seems that if "historical tradition" analysis is to account for the historic context of the Fourteenth Amendment, these 23 restrictions--enacted before, or shortly after the Fourteenth Amendment's ratification--are significant evidence in favor of a historical restriction on gun use or purchase by those under 21 years of age.

The District Court's approach to this issue is mixed. After acknowledging the "ongoing scholarly debate" over whether the Fourteenth Amendment's ratification imbued the Second Amendment with new meaning, the Court quotes language from Bruen (which the Court had quoted from its earlier Heller opinion) suggesting that evidence from the post-Civil War era did not provide insight into the meaning of the Second Amendment. But the language the court quotes is not applicable. To the extent that the Heller Court gave less weight to reconstruction-era evidence, this was because the Heller Court was dealing with a restriction in the District of Columbia, and therefore did not need to consider whether the Fourteenth Amendment incorporated the Second Amendment against the states. The District Court also cited Justice Barrett's concurrence in Bruen, but only to the extent that she stated that the Court had not endorsed "freewheeling reliance on historical practice [from] the mid-to-late 19th century to establish the original meaning of the Bill of Rights." (emphasis added). Again, this quote only bears on interpreting the meaning of the Second Amendment to the extent that it is to be fixed at the time of the founding. While the Bruen Court suggested that the scope of the protection of enumerated rights is fixed at the time of the founding, it explicitly avoided answering this question. 

Perhaps recognizing this uncertainty, the District Court concluded that even if it were to consider Reconstruction-era evidence, Texas still failed to prove a historical tradition of restriction. Here, the Court takes advantage of Bruen's failure to set forth any guidance on how much evidence is sufficient to establish a historical tradition of a restriction on gun rights:

At most, Texas's historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on "the purchase or use of firearms" for those younger than 21. Based on Bruen's guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation's historical tradition of firearm regulation. (p. 19).

First, this framing suggests that the restrictions were enacted later than they actually were. As the court notes earlier, 20 states had enacted restrictions on the purchase or use of firearms by those under 21 between 1856 and 1892. By highlighting 1923 only, the court makes it seem like these laws arose later in time than they actually did. Second, it is a mystery why the court emphasizes the words, "prohibition" and "regulation." It does not argue that the difference in terminology is of any relevance to the constitutional analysis.

Most notably, though, the conclusion that 22 restrictions is not enough to establish a historical tradition is an extremely restrictive approach to the historical evidence. Bruen suggested that three examples were insufficient, but this is a far cry from the 22 examples in the Texas case. The District Court's conclusion that no historical tradition existed despite 22 examples of historic restriction places a near-insurmountable burden on governments seeking to demonstrate traditions.

It is also worth noting the Supreme Court's approach in framing historical evidence of abortion restrictions in its Dobbs opinion, where it concluded that historic restrictions on abortion in some circumstances were not evidence of a right to abortion in other circumstances. There, the Court argued that the lack of evidence of restrictions on particular behavior does not imply a historic understanding that the behavior was protected by the Constitution. That logic may be applied to the Texas case. For those states in the Reconstruction Era that did not enact restrictions on gun purchase and use by those under 21 years of age, they may have believed they could have enacted those restrictions and simply have chosen not to do so.

Firearms Policy Coalition, Inc. v. McCraw illustrates Bruen's lack of guidance for lower courts. This lack of guidance leaves courts with a substantial amount of discretion to pick and choose relevant historical evidence and to determine the sufficiency of evidence necessary for governments to meet their burden in seeking to restrict gun use and possession. The court here took full advantage of that discretion in concluding that 22 historic restrictions were not enough to establish a tradition. If such a restrictive approach survives appeal, this case could be the first of many instances invalidating longstanding restrictions on gun purchases and possession.