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Old September 9, 2010, 11:57 AM   #1
Al Norris
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The Newest NRA Lawsuits - Texas

From the NRA-ILA, we have this announcement:

Quote:
NRA CHALLENGES CONSTITUTIONALITY OF FEDERAL HANDGUN BAN FOR LAW ABIDING 18-20 YEAR OLDS

Wednesday, September 08, 2010

Fairfax, Va. -- The NRA is challenging federal laws that prohibit law-abiding Americans eighteen through twenty years of age from legally purchasing a handgun through a federally licensed firearm dealer. The case was filed Tuesday evening in the United States District Court for the Northern District of Texas Lubbock Division. James D'Cruz of Lubbock, TX is the plaintiff in this case.

....

The case is D'Cruz v. BATFE.

Copyright 2010, National Rifle Association of America, Institute for Legislative Action.
This may be reproduced. It may not be reproduced for commercial purposes.
There is a companion case to this. Perhaps the NRA-ILA saved the additional announcement for its Texas members. Regardless, the companion case is D'Cruz v. McCraw, and seeks to invalidate the Texas statutes that prohibit an adult aged 18-20 from obtaining a Texas Concealed Carry Permit.

This two pronged attack is very well considered and I suspect will move very fast. The State case will, because it is a state case and does not involve the federal government, will move faster than the federal case.

I suspect both the State and the Feds to try to invalidate D'Cruz's standing, by holding the Navgear standard (D.C. Circuit) applies. I don't think that will fly, if the 5th Circuit follows the suggestions in Bach v. Pataki (2nd Circuit).

Should the case proceed, it will most likely be a slam-dunk. I simply can't see the courts holding that a fundamental right can be regulated by some arbitrary age limit. Remember that the 1968 GCA was enacted 3 years before the 26th amendment (18yr old voting) was ratified.

Since then, anyone 18 years or older are adults in the legal sense.
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Old September 9, 2010, 12:32 PM   #2
Brian Pfleuger
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Good news, this is.

I've always thought it to be a bit odd that you can be old enough to go to war and kill and die for your country but you can't own/carry a handgun.
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Old September 9, 2010, 12:50 PM   #3
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Quote:
I've always thought it to be a bit odd that you can be old enough to go to war and kill and die for your country but you can't own/carry a handgun.
It gets confusing, because in many states, you can own a handgun at age 18, but you cannot buy one from an FFL.

In some states, active duty military personnel are allowed to carry without the need for the state's license, but the law is unclear whether it's legal at 18 or not.

Quote:
I simply can't see the courts holding that a fundamental right can be regulated by some arbitrary age limit.
The counter-argument will likely be something along the lines of utility, ie. "blood in the streets." However, I don't see any legal standing for the arbitrary age-limit.

This could be another chance to delineate a level of scrutiny for the RKBA as well.
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Old September 9, 2010, 01:01 PM   #4
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Quote:
Originally Posted by Tom Servo
However, I don't see any legal standing for the arbitrary age-limit.
Am I reading that correctly? You disagree that the 21 year age limit is not arbitrary?

What other fundamental right(s) is/are withheld from an adult, by governmental action, based solely upon age?
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Old September 9, 2010, 01:45 PM   #5
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Quote:
Am I reading that correctly? You disagree that the 21 year age limit is not arbitrary?
Perhaps my wording was a bit off. I think the 21-year-old age limit is arbitrary, and I don't think it would withstand constitutional scrutiny.

In other words, I disagree with your assertion that I disagree that the age limit is not arbitrary.

I think...
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Old September 9, 2010, 01:51 PM   #6
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One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.

That is the tack taken by one of our 'members' in the school/ccw thread. Youth cannot be trusted.

However, the reasonable counterpoint is why do we let the irrational vote?

Look who we have elected recently from all the parties!

Seriously, the argument will be reasonable restrictions and wild kids need to be restricted. See if that works as it would have to define voting rights as less risky than gun rights.
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Old September 9, 2010, 01:54 PM   #7
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Quote:
Originally Posted by Glenn E Meyer
However, the reasonable counterpoint is why do we let the irrational vote?

Have to.... it would take a lot more than an age limit to weed them out!
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Old September 9, 2010, 02:26 PM   #8
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I still haven't figured out why I can have a concealed pistol permit at 19, but I can't buy pistols
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Old September 9, 2010, 04:21 PM   #9
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Speaking strictly as an old guy: multiple ages of majority is an insult to young people. If you're old enough to get married, sign up for credit cards, join the military to defend the nation, and the like, you should be old enough to enjoy all our nation's civil rights. Treating young people as partial second class citizens is no way to encourage people to be good citizens.

You can tell them I said so.
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Old September 9, 2010, 04:47 PM   #10
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Standing Wolf, that is part of the argument. The other part is that all rights are equal. Just like there is not supposed to be second class citizens, there are no second class rights.

Which is why these two cases will be argued on standing, and not the merits. On the merits, both cases fail and fail fast.
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Old September 9, 2010, 04:52 PM   #11
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Quote:
I still haven't figured out why I can have a concealed pistol permit at 19, but I can't buy pistols
I still haven't figured out why at the age of 18 I was required to register for the draft so I could be drafted into the Army and go out with real guns to defend the whole blinkin' country, but I wasn't allowed to drink alcohol or have a firearm when I wasn't busy protecting the free world ...

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Old September 9, 2010, 06:27 PM   #12
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I want to take Glenn's point a little further into the policy spectrum... I'm not too well versed in the legal spectrum, but I'll try here.

It is oft said that criminals are criminals because they break the law, and thus laws preventing people from doing things only inhibit non-criminals to do them.

Many of these age laws are very ineffective at preventing young people from owning firearms (look at the gang wars of inner cities) because many young people are, as Glenn alluded to, criminals.

Here is where I will attempt to venture into this land of the legal mumbo jumbo. This idea that many gun control laws only prevent otherwise law abiding citizens from exercising a now fundamental right is an issue of scrutiny is it not? One of the basis of strict scrutiny is that a law is the least restrictive means possible of attaining a goal.

It would seem to me that these age laws (and many other laws, like PFZs, but staying on topic) are far from the least restrictive means possible because remember, they only seem to restrict otherwise law abiding citizens and not criminals that are breaking the law anyways.

I can hear one opposition to my thesis here in that "well howabout we just make arson legal, because otherwise law abiding people don't commit arson because it's against the law, so you just want to make arson legal?". The obvious counter point to that is that arson is not a fundamental right.

Am I too far off base here? Does this make sense? I'm trying to get into the court side of this issue here so I'm not only familiar with the policy side.
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Old September 9, 2010, 06:47 PM   #13
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Ok, puddin' stirrin' time. Laws are not enacted to prevent anyting, they are enacted to demonstrate, and provide punishment for, those things which are fundamentally, wrong.

To think that legislation will prevent anyone from doing anything is folly, and fear of consequences will prevent only a small majority.
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Old September 9, 2010, 10:57 PM   #14
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Quote:
One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.
That takes it out of arbitrary doesnt it? Or at least part of arbitrary

Quote:
However, the reasonable counterpoint is why do we let the irrational vote?
Apples and oranges. The better counterpoint is why we dont let 18 year olds drink.

Some rights and responsiblities need to be earned with age and the question is best not answered with rote soundbites (and that aint directed at you Al). Need we discuss age of consent laws?

Watch those cortices kiddies

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Old September 10, 2010, 08:38 AM   #15
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The way I see this is that one should be allowed to exercise their rights at the age they become 'independent' because if you believe that our natural rights are given at birth, you have to either conclude that we should be able to exercise all our rights from birth (not a good idea, imo) or those rights should be temporarily given to our caretakers (parents) for them to regulate as we mature. IE, if a child's dad thinks he should have a 22 at 12y/o then that's okay. He takes the responsibility for exercising the child's rights.

Now, since 18y/o is the age in which most people leave home, it seems to me that it is the age in which you should have your rights. Prohibition never works - and drinking before 21 is prohibition and buying an handgun from an FFL is (a smaller) prohibition as well.

Now, here's the real question - the 26th amendment happened in the early 1970's. What have our legislators been doing for the last ~40 years to have not thought through the logic of the above two paragraphs?
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Old September 10, 2010, 08:54 AM   #16
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Quote:
Originally Posted by Wildalaska
Quote:
Originally Posted by Glenn E. Meyer
One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.
That takes it out of arbitrary doesnt it? Or at least part of arbitrary
Do we allow the ignorant to speak? Assemble? Protest? Religion of their choice? What age restrictions have the courts allowed within the framework of the 1st amendment? Time, place or manner, yes. Age, no.

Quote:
Originally Posted by Wildalaska
Quote:
Originally Posted by Glenn E. Meyer
However, the reasonable counterpoint is why do we let the irrational vote?
Apples and oranges. The better counterpoint is why we dont let 18 year olds drink.
Drinking? Sorry, there is no right to drink alcoholic beverages. Even the passage of the 18th amendment, the Congress did not claim or state that drinking alcohol was a right.

Quote:
Originally Posted by Wildalaska
Some rights and responsiblities need to be earned with age and the question is best not answered with rote soundbites. ...
As far as the enumerated rights, I'll ask again: What other fundamental right is withheld from an adult, by governmental action, based solely upon age?

Quote:
... Need we discuss age of consent laws?
Other than perhaps with yourself, you have no right to engage in sex. Otherwise, sexual activity between consenting adults is lawful. The fact that some States have different ages for consent, as regards sexual activity, is neither here nor there (Lawrence v. Texas).

Let's get back to the voting bit.

By the late 60's, most States were already leaning at legislative actions that placed the age of adulthood at 18. The right to marry. The right to enter into contracts. The right to be treated as an adult (at 18), in most all manners (civilly and criminally), was pretty well universal.

The cement, as it were, to this movement was set in place on July 1 of 1971, when the 26th amendment was ratified and became a part of the Constitution: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. (emphasis, mine)

Thereafter, any State that was lagging, quickly put into place the necessary legislation that affirmed the Congress' intent; That a citizen of 18 was a fully vested adult.

A law passed in 1968 (the GCA), that applied an arbitrary age to handgun possession, cannot withstand any level of judicial scrutiny after the passage of the 26th amendment, the decision in Heller and the decision in McDonald.

Quote:
Originally Posted by Glenn E. Meyer
Evidence shows not full developed front cortices that inhibit risky behavior.
This same evidence also shows that by age 21, the frontal cortex is still developing, in many individuals. The rate of development is also different for individuals. There is no time-table by which the medical community can agree that an individual is fully developed. Physically or mentally.

If the Constitution can set arbitrary age limits on the Presidency, the Senate and the House, it can also set the age of majority (a term of art meaning adulthood). Laws must then abide by those Constitutional limitations.
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Old September 10, 2010, 09:00 AM   #17
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Is there a legal definition for 'age of majority'?
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Old September 10, 2010, 09:02 AM   #18
Glenn E. Meyer
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Good arguments. I'm just saying that the defense for the age limit would be the idea of 'reasonable' restrictions. As proposed for schools or churches.

Note, that I'm dead set against those except for highly technical reasons. However, the reasonable restriction mantra carries some weight with folks - as in the school debate where so-called gun rights supporters come out against school carry rights and babble whining scenarios of fear.

As far as medical exams for cognitive competency - I suggest they be instituted for the Congress and Presidency.
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Old September 10, 2010, 10:03 AM   #19
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Well, since I posted a hour ago, I did a little research on age of majority. I found something I never saw before called 'age of license'. Maybe y'all know all about it.

Does age of majority and age of license have bearing on this?
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Old September 10, 2010, 03:01 PM   #20
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Purchase of handguns is an age of license issue not an age of majority. The state (in the generic sense) can permit activities to occur at certain ages which are different than a general age of majority. You can get a DL at 16, or a hunting license at 18, or get married at 18, or drink at 21 etc. The age of Majority means that you are responsible for your own decisions. So at the age of majority you can sign contracts that legally bind you without parental consent. A person underage can marry, drive, join the service etc. but it requires the consent of the parent or other guardian to do so. At least this is what I read on Wiki


Interesting DL procedure in VA, the local judge gives the DL to the guardian in the presence of the new driver, and the guardian has the legal right to revoke it at anytime prior to the child reaching 18.
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Old September 10, 2010, 07:45 PM   #21
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Quote:
Originally Posted by wally626
Purchase of handguns is an age of license issue not an age of majority.
Nope. At issue are the Federal Statutes that prohibit a anyone with a Federal Firearms License (FFL) from selling handguns to any person under the age of 21. Also at issue, is the general prohibition of any merchant selling ammunition which is generally used in handguns, to any person under the age of 21.

This is not a licensing issue at all. It is a federal requirement for FFL's and those who sell ammunition. That is what is being challenged in the first case.

The second case is specifically challenging the Texas Concealed Carry laws, in as much as they deny the Fundamental Right of Self-Defense to adult citizens.

A drivers license is irrelevant, as the majority will quickly say that this is a privilege and not a right (I don't agree, but I'm in the minority). The same goes for drinking. That also is not an enumerated right.

The other things you mentioned (marriage, service, contracts) are rights and you will notice that they are all available once you reach 18. Hunting is special, in that both the State and Federal Governments have a compelling interest in keeping the game (and habitat) available to all. The laws governing this are narrowly constructed and are the least restrictive means to achieve that goal.
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Old September 10, 2010, 08:14 PM   #22
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Quote:
Originally Posted by sundog
Is there a legal definition for 'age of majority'?
Forgive me for forgetting about your question.

Yes, there are definitions. The age at which a person, formerly a minor or an infant, is recognized by law to be an adult, capable of managing his or her own affairs and responsible for any legal obligations created by his or her actions.

The common law age of majority was 21. Before this (medieval times), the age was 25. However, each State has the ability to set the age at whatever arbitrary age it wants. "If a legislative body wishes, for whatever purpose, it can wave a magic wand and emancipate (a minor) to suit its convenience. Though 21 usually is the dividing line between minority and majority, the age of majority in Michigan (in 1972) is now 18. The state seemingly can be as arbitrary as it pleases in raising or lowering the barrier for all or just some purposes." Smith v Smith (1972) 433 Mich. 606 (as an example of what the courts have said).

As a federal construct, the age is now 18. The same goes for the State of Texas (and many other States).
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Old September 10, 2010, 10:24 PM   #23
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Quote:
What other fundamental right is withheld from an adult, by governmental action, based solely upon age?
None,

So what?

Al, you ignored my basic premise, viz: That a case could be factually presented that demonstrates that the restriction in question is not arbitrary but rather, well within the bounds of evolving 2nd Am Jurisprudence.

Undeveloped cortices? Makes a great record for the Court below. How many "children" (nyuk nyuk) commit gun homicides.

There have been several recent cases that illustrate how the facts, present or absent, can effect what a Court does. And if the restriction in question is arbitrary, why are you arguing with me about the facts

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Old September 10, 2010, 10:41 PM   #24
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Ken, I would posit that we are merely debating probable legal points. Any arguments would actually have to wait until we see the responses from the feds and the State.

As for your premise, I would think it would be more a State argument than a Federal argument, for the reasons given in the definition to sundog.
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Old September 10, 2010, 10:44 PM   #25
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Quote:
If the Constitution can set arbitrary age limits on the Presidency, the Senate and the House, it can also set the age of majority (a term of art meaning adulthood). Laws must then abide by those Constitutional limitations.
Then at least make it consistent. Either have the age be 21 or 18 across the board.

Quote:
One might take the road that 18 years are not responsible. Evidence shows not full developed front cortices that inhibit risky behavior. That we let them have guns in the military is ok because they are tightly supervised.
Yet we let them own shotguns and rifles at 18 and drive at 16 in many places.

Quote:
Drinking? Sorry, there is no right to drink alcoholic beverages. Even the passage of the 18th amendment, the Congress did not claim or state that drinking alcohol was a right.
Congress has never claimed or stated that bring allowed to own a computer and radio is a right either, what's your point?

Congress has no right to restrict that activity. The federal government is supposed to only have the enumerated powers delegated to it in the constitution. (yea yea, I know they don't follow it.) Any powers not delegated to the federal government are left to the states. Every part of alcohol regulation is left to the states except for the drinking age which the government implicitly admits that it has no right to regulate because it has to do it via tying it to highway funding.
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