First Circuit Upholds Federal Ban on Juvenile Handgun Possession

[paulsby]

http://volokh.com/2009/10/06/first-circuit-upholds-federal-ban-on-juvenile-handgun-possession/#comments

by David Kopel
The decision is here, and includes extensive analysis of 19th and early 20th century state laws (and court decisions upholding them under state constitution RKBA provisions) against juvenile handgun possession, or sale of handguns to juveniles. The decision also rejects a challenge that the federal ban on simple possession in one’s own home exceeds congressional authority under the power to regulate interstate commerce. In Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act, 30 Connecticut Law Review 59 (1997), Glenn H. Reynolds and I argued that the interstate commerce power should not be used to regulate intrastate activity, especially activity involving controversial social issues like firearms or abortion. In a 1999 Issue Paper for the Independence Institute, I wrote a brief section (Part VII) which presents some policy arguments against the federal aw. As you’ll see by reading the First Circuit case, there are good reason why the juvenile delinquent should not have owned a gun. But I that there is a less restrictive alternative than the federal approach.

[mike_c]

1. it's REALLY time to go home....

I read "juvenile hard-on possession." Time to call it a day, I think. :rofl:

[ShortnFiery]

2. Adolescents with READY access to guns. What could possibly go wrong?

:crazy:

[onehandle]

3. Fuck that. I want my toddler packing heat.

What if someone wants to take his pudding?

His second amendment rights are clear.

Guns for all. All the time.

[benEzra]

4. I don't see this as a problem...

and I suspect the author is objecting on federalism grounds rather than 2ndA grounds, sort of like progressive objections to DEA cannabis rules overriding state laws on medical cannabinoids.

There was a good comment in the comments section that I'll repost a portion of here:

I have a hard time thinking there’s any error in the First Circuit’s holding or reasoning in this case.

First, 18 U.S.C. §922(x) has safe harbors for a juvenile to possess a handgun with the permission of his parent or guardian, for use in legitimate shooting sports or employment, military service, and in defense against intruders in the juvenile’s residence. These provisions, especially §§(x)(3)(D)’s exemption for defense against intruders, would seem to meet the Second Amendment right as defined by Heller, even in the face of a prohibition on juvenile possession in general.

The defendant had a criminal history category of III under the Sentencing Guidelines. As someone with more than passing familiarity applying the Sentencing Guidelines, this suggests to me that probably at least one of his prior juvenile adjudications would have been a felony if committed by an adult (if he stacked up enough separate misdemeanor sentences of incarceration he could also get there, but that would be rare in the juvenile systems I’m familar with). Assuming he probably committed crimes that would be felonies if committed by an adult, Justice Scalia’s dicta in Heller that leaves intact felon-in-possession prohibitions should apply here as well, and could be an independent ground for upholding the conviction against a Second Amendment challenge. Frankly, this defendant is lucky he was only 17 – if this kid had instead been an adult charged under §922(g)(1), with his criminal history he would have gotten a LOT more than 6 months jail time.

While there are interesting arguments one can make about the limited reach of the Commerce Clause (that aren’t supported by current caselaw), in this case the trace of the specific handgun from the point it became a contraband crime gun in Georgia to Maine should provide an adequate interstate commerce hook, even for those with a restrictive view of the Commerce Clause.