Cross-posted from Dorf on Law

Dissenting from the denial of certiorari in Silvester v. Becerra last week, Justice Clarence Thomas lamented that the lower courts have been undermining the Second Amendment by saying they are applying intermediate scrutiny to gun regulations but actually applying something more like the low-level scrutiny of the rational basis test. He thought that the US Court of Appeals for the Ninth Circuit committed this sin in its opinion upholding a California law imposing a 10-day waiting period for the purchase of firearms. Justice Thomas also chastised his colleagues for treating the Second Amendment as "a disfavored right."

The idea that the right to possess firearms is "disfavored" anywhere in America would likely be received with puzzlement in most of the world. Indeed, last week's juxtaposition of a Supreme Court justice complaining that firearms are too difficult to obtain with students who survived the shooting at Marjory Stoneman Douglas High School pleading for the grownups to do something to protect them was arresting.

Beyond the symbolism of Justice Thomas's poorly timed Silvester dissent lies a question of law. What would real intermediate scrutiny of firearms regulations look like? I'll try to answer that question by comparing a classic case of such intermediate scrutiny with a hypothetical challenge to the proposal to raise the minimum age for the purchase of assault rifles to 21.

Exsting federal law sets the minimum age for purchase of a handgun from a licensed dealer at 21, but long guns, including so-called assault rifles like the AR-15, may be purchased at age 18. And 18-year-olds can legally purchase handguns in private sales and at gun shows. One of the proposals that has received widespread support, even (for now) from Donald Trump, would raise the minimum age for purchasing all firearms to 21.

Would a minimum purchase-age of 21 for all firearms survive traditional intermediate scrutiny of the sort that Justice Thomas thinks ought (at least) to apply to firearms restrictions? Or for that matter, suppose someone were to challenge the existing law forbidding 18-20-year-olds but not 21-year-olds from purchasing handguns from licensed dealers?

As it happens, the classic case of intermediate scrutiny involved distinctions between 18-20-year-olds and 21-year-olds. An Oklahoma law set the drinking age for most alcoholic products at 21 but permitted young women to purchase low (up to 3.2%) alcohol  beer at 18. The law was challenged as sex discrimination in violation of the Equal Protection Clause. Applying intermediate scrutiny in Craig v. Boren, the Supreme Court invalidated the Oklahoma law. It did so even though statistical evidence showed that 18-20-year-old males were more than ten times as likely to be arrested for drunk driving than females in the same age group: a rate of 2% for males and .18% for females. That did not satisfy the Court, however, because it meant that Oklahoma was using maleness as a proxy for a tendency to abuse alcohol based on a mere two percent correlation between the trait and the behavior.

Now let's apply that logic to a law distinguishing between 18-20-olds and 21-year-olds. The relevant data show that 18-20-year-olds probably commit slightly fewer violent crimes than the next older age cohort. The data here compare 2016 murder rates for 17-19-year-olds with 20-24-year-olds. Normalized by cohort size, the rates are, respectively, 471 per age year for the younger group and 518 for the older group. Let's call that roughly even. There is certainly nothing like the ten-to-one ratio that was itself insufficient to satisfy intermediate scrutiny in Craig.

But is that the right number? Perhaps not. In 1993, at the peak of the now-thankfully-receded crime wave, the arrest rate for weapons offenses for 18-year-old males was about ten times higher than for the rest of the population. That looks more like the ten-to-one ratio in Craig, although it's actually somewhat lower because the higher number here is based on excluding less violent females. In any event, Craig informs us to look at the absolute rate. In Craig, a two percent arrest rate for drunk driving by 18-20-year-old males was insufficient to satisfy intermediate scrutiny. The data just cited show "only" a one percent arrest rate for the group of 18-20-year-old males for weapons offenses at the peak of the crime wave 25 years ago. Based on the Craig logic, that's clearly not enough of a correlation between the trait and the behavior to satisfy intermediate scrutiny.

Might intermediate scrutiny be stricter for gun regulations than for alcohol regulations based on the greater danger posed by guns? Not really. In 2016 there were about 11,000 gun-related homicides in the US. That same year there werealmost as many (10,497) drunk-driving deaths. Even if we treble the gun-death numbers to account for suicides (some of which would likely be accomplished by other means if guns were less available), we still have threats to public safety from guns and alcohol that are roughly the same order of magnitude.

Meanwhile, 18-21-year-olds are more likely to be victims of violent crime than people in any other age group. Thus, the argument can be made--based on the SCOTUS understanding of the Second Amendment as protecting a right to armed self-defense--that 18-21-year-olds have the greatest need for firearms.

Thus, any way you slice it, application of intermediate scrutiny in the way that Justice Thomas wants it applied would invalidate firearms regulations that even Donald Trump has said he could support. And it's worth remembering that Justice Thomas has only said that at least intermediate scrutiny applies to firearms restrictions. He might actually favor strict scrutiny, as might some of his colleagues.

But maybe this whole line of analysis is improper. In Craig, the state didn't need to distinguish between males and females at all, whereas the government must set some minimum age for firearms purchases. Given that any age line will be arbitrary, perhaps drawing the line at 21 is reasonable. After all, if the line were 18, distinguishing between 18-year-olds and 17-year-olds might fail intermediate scrutiny. And likewise with 16-year-olds, 15-year-olds, etc., until, via the Sorites paradox, infants have a constitutional right to carry firearms. Given that reductio, perhaps 21 is as good a line as 18.

That's not a bad objection, and if it were the only one available to sustain an age limit of 21 for purchasing a firearm, I would hope the courts would accept it.  However, I'm not confident that a Court enamored of heightened scrutiny for firearms regulations would buy it

Consider abortion rights, to which Justice Thomas compares Second Amendment rights in his Silvester dissent. The case law permits restrictions on abortion access by minors that would not be permitted for adults, but does not appear to permit a state to define the age of majority for abortion at over 18. I say "appear" because I'm not aware of any state that has attempted to raise the age of majority for abortion. Yet given how aggressive states with pro-life legislatures are with respect to other sorts of abortion restrictions, one would assume that if it were possible to raise the age of majority for abortion and get away with it, some state would have tried to do so.

The approach to abortion appears to reflect a more general assumption within constitutional law that 18 is the age of majority. That explains why the Court, even while recognizing that distinguishing between 18-year-olds and 17-year-olds is not much less arbitrary than distinguishing between 19-year-olds and 18-year-olds, drew the line at 18 in invalidating the death penalty for juveniles in Roper v. Simmons, in which the respondent-defendant was 17 when he committed his crime.

To be sure, the law sometimes draws cutoffs at a higher age, most notably the 21-year-old drinking age. But there is no constitutional right to purchase alcohol, so that age restrictions on drinking that are not otherwise invidious (by using a line such as sex, as in Craig) do not count as invidious. The presumptive age of majority for constitutional rights appears to be 18.

That looks to be especially true for a right to carry firearms. By making the Second Amendment the textual basis for that right, the Court connects it to to militia/militia service, even though Justice Scalia's majority opinion in the Heller case says that the militia purpose of the Second Amendment doesn't limit the right. Traditionally, militia/military service was a political right/duty of citizenship, along with jury service and voting. And the 26th Amendment fixes the minimum voting age at 18, thereby providing a textual basis for fixing the minimum age of political rights at 18. That is also the minimum age for entering the US military without parental consent. (17-year-olds can enter with parental consent).

The key argument that led to the 26th Amendment seems appropriate here too. During the Vietnam War, 18-year-olds and their champions said that if someone is old enough to kill and die for the US, he or she ought to be old enough to vote for the officials who decide whether the country engages in military conflict. Likewise here, one can expect an argument that a person who is old enough to carry a firearm (without parental consent) to defend the US against foreign attackers ought to be old enough to carry a firearm to defend herself, her family members, and her community from domestic attackers.

Lest I be taken to be arguing that age restrictions on firearms should be held unconstitutional, I hasten to add that I set forth the data and arguments above to illustrate how misguided Justice Thomas's view is and to warn those who favor tighter restrictions on guns that the Supreme Court really is a problem. It has become common lately for gun control proponents to say that the chief obstacle isn't the Second Amendment as construed by the Supreme Court but our politics. As I discussed last week, that contention overlooks the symbolic value of the Court's opinions beyond their technical details. Still, I concede and am glad that Heller renders various categories of firearms restrictions permissible as a consequence of Justice Scalia's ipse dixit.

What I mean to show here is that outside of Justice Scalia's stated exceptions, the application of traditional intermediate scrutiny as exemplified by a case like Craig would be a serious constraint on the sorts of firearms regulations that even some Republicans now appear to favor. The problem isn't only Justice Thomas. He's right that a majority of the Court in Heller rejected rational basis scrutiny in favor of something roughly like intermediate scrutiny.

In the short run, the best hope for the SCOTUS permitting what are sometimes called common-sense gun regulations is that the other justices continue to lack the courage of their convictions. In the long run, one must work to elect politicians who will not only enact sensible firearms regulations but will nominate and confirm to future SCOTUS vacancies jurists who see the Court's Second Amendment jurisprudence for the threat to public safety that it is.

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Postscript.  I am aware that, despite my disclaimers, the arguments set forth above could be used by lawyers promoting gun rights to attack regulations I actually favor. Let me offer three quick responses:

1) As a scholar, I call them as I see them. If others use my work for purposes I disapprove, that's just an occupational hazard.

2) I don't flatter myself that I'm so very clever to have articulated arguments that smart lawyers for gun rights wouldn't themselves come upon.

3) If asked how I might respond to my own arguments were I in court, I would say that the SCOTUS hasn't yet settled on intermediate scrutiny for firearms regulation, but even if it were to do so, there are versions of intermediate scrutiny that are actually much more deferential to regulation than the Craig test. In Heller and McDonald v. Chicago, the Court repeatedly compares the Second Amendment to the First Amendment, so it would make sense to import the First Amendment version of intermediate scrutiny into Second Amendment jurisprudence rather than the tougher Craig test. As UC Davis Law Professor Ash Bhagwat has explained, intermediate scrutiny is quite common in First Amendment cases, and the lower courts--with Supreme Court acquiescence--tend to apply it in a way that mostly sustains challenged regulations. Although Prof. Bhagwat offers normative criticisms of the First Amendment cases, his descriptive analysis (which is still largely accurate eleven years since its publication) provides a strong basis in current case law for resisting Justice Thomas's claim that the lower courts have been misapplying intermediate scrutiny under the Second Amendment; they have been treating the Second Amendment more or less like the First Amendment, which is, after all, what Heller and McDonald appear to demand.

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