Scholarship Highlight: Historical Age Restrictions, Legislative Silences, and Judicial Role Morality

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new paper in the Rutgers University Law Review Commentaries, Robert Spitzer chronicles the history of states imposing firearm-related restrictions based on age or minor status.  Spitzer conducts a “survey of old weapons laws in America as they relate to minors (i.e., those who have not reached the age of majority) [that he argues] reveals that the[se laws] were numerous and prolific, dating from the 1700s through the early 1900s.”  He also ties the appearance and proliferation of these laws to changing societal circumstances in mid-1800s because, before that time, “minors mostly lived with their parents in circumstances where minors did not possess the means, ability, inclination, or right to obtain firearms on their own.”  Spitzer identifies college and university rules restricting gun possession and use in the 1800s and earlier and asserts that “college rules from this early period are a microcosm of societal attitudes concerning the rights (or lack of rights) pertaining to young people.”

In an essay that will be published in the NYU Law Review Online, Frederick Vars criticizes Bruen’s reliance on past legislative inaction (which he labels “the dog that didn’t bark").  Vars argues that the Court should correct this error in Rahimi by recognizing that the relevant portions of Bruen are dicta and that “legislative inaction can be relevant only if there was a good reason for the legislature to act.”  As to domestic violence, Vars asserts, there was no such reason because the use of guns in domestic assaults was simply not an issue of concern at the Founding.

Finally, Center faculty co-director Darrell Miller has a new piece in the Duke Law Journal Online that considers whether and how Bruen’s historical-analogical test threatens the role morality of judges and their ability to offer publicly intelligible reasons for the decisions they reach.  Miller offers three major suggestions for courts seeking to apply Bruen while also meeting their reason-giving expectations:

First, the analogy must be understood at a sufficient level of generality to operate as law; second, the rule of relevance that the court adopts must comport with public intuitions about what makes things alike or unalike in the context of arms; third, the level of generality of the rule of relevance must work at a commensurate level across the rights/regulation equation.

Robert J. Spitzer, Historical Weapons Restrictions on Minors, 76 Rutgers L. Rev. Commentaries (Spring 2024)

Abstract: 

Since the Supreme Court’s ruling in 2022 that recast the basis for judging the constitutionality of contemporary gun laws according to the existence of historical analogs, all manner of laws have been subject to court challenge, including those that restrict gun access to those under the age of twenty-one. To date, federal courts have split on this question. Given this new, history-based standard for judging the constitutionality of current weapons laws, this Article examines the historical record pertaining to how the age of majority was defined in our past and how that pertains to the history of laws that restricted minors’ access to firearms and other weapons. This Article offers the most extensive assessment of state laws and local ordinances from the eighteenth and nineteenth centuries to be found to date. In addition, it includes a new and extensive excavation of a wide range of college and university codes in the eighteenth and nineteenth centuries that limited or barred students from having weapons during that time period, the nature and extent to which has not been identified or reported before. All of this information supports the conclusion that the broadly accepted age of majority during this time period was twenty-one.

Frederick E. Vars, The Dog That Didn't Bark is Rewriting the Second Amendment, N.Y.U. L. Rev. Online (forthcoming)

Abstract:

The Supreme Court’s Second Amendment test is based on nothing. By “nothing,” I mean the absence of something. The Court in Bruen suggested that a modern gun regulation could be constitutional only if there was an analogous historical regulation. Thus, legislative inaction defines the scope of the Second Amendment. This form of argument is often called “the dog that didn’t bark,” after a famous Sherlock Holmes story. The Court has expressly rejected this form of argument in the past. The problem is not with the form of the argument, but rather with the Court’s clumsy misapplication of it. Thankfully, the Court has a chance in the pending Rahimi case to put the dog back on the leash.

Darrell A.H. Miller, Historical Analogy and the Role Morality of Reason-Giving, Duke L.J. Online (2024)

Abstract:

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of Bruen and more focused on the ethical implications of this type of reasoning. In sum, if the Supreme Court is going to decide constitutional cases through historical analogies, it should do so in a way that is functional as law and is intelligible to the three hundred million people for whom it rules.

After outlining the role morality of reason-giving by judicial officers in our system of judicial review, this Essay provides an overview of the psychology of reasoning by analogy by both lawyers and lay persons and the role of generality, systematicity, and rules of relevance in constructing such analogies. It then identifies three hazards confronting courts attempting to apply Bruen’s analogical method: reliance on surface rather than structural similarities; analogs that lack any stable or discernable rule of relevance; and finally, use of analogs so unmoored from public intuition and experience that they appear unreasonable or contrived.

Using Second Amendment litigation as an example, the Essay concludes by showing how the Court can articulate a system of analogical reasoning from history and tradition that avoids these pitfalls and is consonant with the role morality of judicial officers who must offer intelligible legal reasons for their decisions.