Thanks to the Supreme Court’s game-changing Second Amendment ruling from last summer, NYSRPA v. Bruen, gun laws of every type seem up for grabs. In addition to expanding Second Amendment rights to public spaces, Bruen also recast the basis for determining the constitutionality of current gun laws by asking whether they are “consistent with this Nation’s historical tradition of firearm regulation.” Old gun laws need not be “dead ringers” for current laws, but they should be similar or “analogous,” said Justice Clarence Thomas in his majority opinion.
Leaving aside the wisdom of this history-based standard, it is one that is not applied to other constitutional rights. As Pepperdine law professor Jacob Charles recently noted, “This kind of history-only test is not used for nearly any other constitutional right.”
Yet here we are.
Among the many types of gun laws now under challenge are those restricting gun access to those between 18 and 21 — the category of persons most liable to commit crimes. Here, as in a growing number of cases, courts are arriving at opposing decisions based on their own interpretations of gun law history. For example, last September a federal judge in Texas struck down a state law barring concealed gun carrying to those under 21 in a ruling that, according to the judge, was “informed by Founding-Era history and tradition.” (In December, the state decided to halt its defense of the law after earlier vowing to appeal.)
In early March, a federal appeals court in Florida upheld that state’s law barring the sale of long guns to those under 21, a law enacted after the 2018 Parkland high school mass shooting. After its review of relevant gun law history, the court found that the Florida measure was “consistent with this nation’s historical tradition of firearm regulation.”
A California law that prohibits firearms dealers from selling firearms to anyone under 21 is under challenge in federal court.
My own research on historical gun laws pertaining to minors indeed reveals many such laws. The oldest was a New York City law from 1763 that singled out any children or youths who discharged any firearm or fireworks within the city as subject to penalty. From then up to 1860, a total of at least seven states enacted twelve state and municipal laws to keep weapons out of the hands of minors. After the Civil War, as the population transitioned from rural to urban, accompanied by the explosive growth of urban centers, such laws proliferated. From 1861-1900, 31 states enacted nearly 60 laws to keep mostly handguns (though sometimes any kind of gun) and other dangerous weapons from minors, with some laws making exceptions if parents consented or supervised. In the early 1900s, another six states enacted such laws. In all, at least 44 states enacted over 100 laws to keep guns from minors.
One other category of age-based gun restrictions — one that has received contemporary attention, but almost none historically — is dangerous weapons on college campuses. The young adult population that is most heavily represented on campuses today (roughly ages 18-22), closely parallels the age range of college students in centuries gone by.
Political pressures in the last two decades have led 12 states, as of 2022, to adopt laws allowing some kind of concealed gun carrying on state-operated campuses, even though these measures have been uniformly opposed by administrators, faculty, and most students. And collegiate sports programs, along with the NCAA, are struggling with how to balance the changing definition of gun rights with student-athletes caught with guns.
Yet this modern trend is contrary to the history of weapons on campuses, where college leaders found a simple expedient. Historian Saul Cornell noted about campuses in history that “College was one of the very few circumstances where minors lived outside of their parents’ or a guardian’s direct authority”; thus, “minors attending college traded strict parental authority for an equally restrictive rule of in loco parentis.”
The nation’s oldest institution of higher learning, Harvard, enacted this prohibition in 1655: “noe students shall be suffered to have [a g]un in his or theire chambers or studies, or keepeing for theire use any where else in the town.”
In 1745, Yale penalized any student who kept or fired a gun either on or within two miles of campus.
Among public universities subject to state laws, the state University systems of North Carolina (1799, 1838), Georgia (1810), Virginia (1824), College of William and Mary (Virginia, 1830), the College of New Jersey (1871), the University of Mississippi (1878), and the University of Kentucky (1890-1891) all adopted strict measures against having, keeping, firing, and/or carrying of weapons on campus, and sometimes extending to student housing, or student behavior, off campus. Similar measures existed on private campuses including Dickinson College (1830), Mississippi Presbytery and Oakland College (1831), Colby College (1832), LaGrange College (1837), University of Nashville (1837), Kemper College (1840), Illinois College (1850), Oberlin College (1859), Albion College and Wesleyan Seminary (1860), and McKenzie College (1860).
Hundreds of years ago, our forebears understood that the intersection of minors and firearms posed a special risk. Surely we should be no less mindful of that risk today.
Robert J. Spitzer is distinguished service professor emeritus of political science at SUNY Cortland, and an adjunct professor at the College of William and Mary School of Law. He is the author of six books on gun policy, including “The Gun Dilemma.”