In 2008, in Heller v District of Columbia, the U.S. Supreme Court affirmed the right of an individual, though unconnected with militia service, to keep and bear arms in the District of Columbia for traditionally lawful purposes – such as defending a home. In 2010, in McDonald v City of Chicago, the Court determined that the Heller decision applied to the entire union.
This year, in New York Pistol and Rifle Association v Bruen, the Court struck down a 110-year-old New York law which had burdened the citizen with persuading the subjective judgment of local authorities that he or she should be allowed to carry a concealed handgun for protection. Instead, the Court said, state or local authority must cite a specific and established cause why the person should not be licensed to carry a concealed weapon.
Featured within each of these majority opinions, or concurrences, is the following quotation of Justice Antonin Scalia from the Heller decision:
“Like most rights, the right secured by the 2nd Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner and for whatever purpose….Nothing in our opinion should be taken to cast doubt on longstanding prohibitions of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Scalia ended the Heller decision with these words: “Undoubtedly some think that the 2nd Amendment is outmoded in a society where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the 2nd Amendment extinct.”
Something else not debatable is how a very small (infinitesimal within the entire cohort) number of young men, mired in extremely unhappy adolescence, have obtruded their presence into the national consciousness by their use of semi-automatic long rifles, legally obtained, to kill innocent persons – even targeting small children.
Buffalo. Uvalde. Highland Park. As this is written (July 20), the Gun Violence Archive has recorded 356 mass shootings so far this year in our nation. The Archive defines a mass shooting as one in which four or more persons are killed or wounded – not counting the shooter. The Archive does not differentiate the ages of the shooters.
The Federal Uniform Drinking Age Act of 1984 made 21 the legal age to drink alcohol. Parents can include children up to age 26 in their health insurance. Car rental companies do not rent their full line of vehicles to persons under 25. By federal statute, the minimum age to buy a handgun from a licensed dealer is 21. But, also according to federal law, the minimum age to purchase a long rifle, including semi-automatics like AR-15s, from a licensed dealer is 18.
Roe v Wade was overturned by the Supreme Court in no small part because the justices found that legal abortion was not part of the history and tradition of the United States – at least not before 1973. Analogously, semi-automatic rifles were not available to the American public until the 1960s – so in that sense they are not within the history and tradition of the United States either.
I understand, and fully accept, that there are sound reasons to own a semi-automatic rifle that transcend mere sportsmanship – chief among them, I would say, is the desire to protect one’s home and family.
I also understand, and honor, that the preparatory phrase “A well regulated Militia, being necessary to the security of a free State,” as understood by the ratifiers of the 2nd Amendment, implied that eventual bad actors within the State might use the militia for tyrannical purposes – therefore, “the right of the people to keep and bear Arms, shall not be infringed.”
But as policy, I am hard-pressed to find reasons to oppose raising the age to obtain commercially a semi-automatic weapon, handgun or rifle, to age 26. I would support two “carve-outs.” Persons who are serving, or have honorably served, in the military should be exempted from such a prohibition. As should persons under 26 who can demonstrate, besides the regular qualifications, that they are maintaining a residence of their own – evidenced with property tax receipts, rental payments, or utility bills.
I don’t see how such a law would be unconstitutional. It would only apply to commercial sales. Private sales and transfers could still take place. Such a law would not seem enough to many persons, and seem too much to many others. But it is worth considering that a commercial dealer is obligated to sell to anyone who meets the legal requirements. It would remove a veil of anonymity that young would-be killers of innocents, who have acquired no disqualifying record, have hid behind to get their semi-automatic weapon. It would raise the bar against mayhem and death. It is a compromise worth making.
Of course, litigation would inevitably follow. A federal judge somewhere would rule against such a law as a violation of the 2nd Amendment or the privileges and immunities clause of the 14th Amendment. Maybe that judge would eventually be proven right in the
Supreme Court. But, as Justice Scalia suggested, it’s worth finding out.
Hartley is a retired chief engineer in the merchant marine. His 33-year career was on the Great Lakes. Prior to that, he was a steel worker and an officer in the U.S. Coast Guard. He has a bachelor’s degree in English and American literature from Brown University. He is the author of “Christy Mathewson: A Biography,” published by McFarland in 2005. He and his wife Cyd make Corry their home.