“This eighteen-year-old—who just turned eighteen—bought an AR-15 and took it into an elementary school and shot kids in the face and killed them,” Beto O’Rourke, the former congressman, said to reporters outside a high school in Uvalde, Texas, on Wednesday. “Why are we letting this happen in this country?” O’Rourke had just been thrown out of a press conference in the school auditorium, where he’d confronted Governor Greg Abbott, whom he’ll also face in the gubernatorial race this fall, about Abbott’s failure to do anything about gun violence in the state other than to make the problem worse. (Abbott’s signature package of legislation in the area loosened several restrictions and made it easier to carry a gun.) The mayor of Uvalde called O’Rourke a “sick son of a bitch”; Senator Ted Cruz, who for reasons best known to him was on the stage with Abbott, tweeted afterward that O’Rourke’s intervention was “disgusting.” Salvador Ramos, the shooter, had been a student at the high school where those politicians would have preferred to be left in peace. As O’Rourke noted, Ramos’s eighteenth birthday was May 16th, and he legally bought an AR-15-style semi-automatic rifle the next day. Then, on May 20th, he bought a second such gun. On May 24th, he went on a shooting spree that culminated in the deaths of nineteen children and two educators at Robb Elementary School. The assault ended after he was shot dead, at the age of eighteen years and eight days.
But, of course, a week earlier O’Rourke could have been speaking to reporters about an eighteen-year-old who had bought an AR-15-style semi-automatic rifle soon after his birthday and took it into a supermarket in Buffalo, New York, where he shot and killed ten people. That shooter, Payton Gendron, was just eleven months older than Ramos. The design of the AR-15 (the “AR” stands for ArmaLite Rifle) derives from the military M16, and it does seem like madness that someone a day away from childhood could buy one so casually, or at all. One might also think that tighter age restrictions on such purchases would be a relatively simple, commonsense law to enact. After all, at the federal level, there is already a minimum age of twenty-one on handgun purchases, though the “long gun” minimum is only eighteen, and there are loopholes for private sales and transfers. It is insanity enough that civilians of any age can easily buy such semi-automatic weapons. (From 1994 to 2004, a federal assault-weapons ban limited access to many of them, but it was allowed to expire.) That assumption would be wrong. Instead, in a recent series of court cases, gun-rights advocates have been working to strike down what limits there are on gun purchases by young adults between the ages of eighteen and twenty-one. Increasingly, they are succeeding; a Supreme Court decision expected in the next few weeks will likely make it even easier for them to win.
One such victory came on May 11th, five days before Ramos’s birthday, in the Court of Appeals for the Ninth Circuit. The case, Jones v. Bonta, involved a challenge to a 2019 California state law that made twenty-one the minimum age for most purchases of semi-automatic rifles. The plaintiffs, who include young adults, advocacy groups, and gun dealers, had argued that the law is unconstitutional—as long as they are adults, shouldn’t they have the same Second Amendment rights as other adults?—and asked a district-court judge for a preliminary injunction blocking its enforcement. The district court had turned them down; by a 2–1 vote, the appeals court reversed that decision. The majority found that, in light of District of Columbia v. Heller, the landmark 2008 Supreme Court case that reimagined and expanded gun rights, the minimum age posed an unacceptable burden on eighteen-, nineteen-, and twenty-year-olds who want to own an AR-15.
There are several extraordinary aspects to the majority decision, written by Judge Ryan Nelson, a Trump appointee. It pushes aside a long American history of similar age-related gun restrictions, while trumpeting the enlistment of teen-age boys in militias and posses in the early days of the Republic—and in England “long before the Norman Conquest.” Another has to do with Nelson’s view of the uses of semi-automatic rifles for teen-agers. He seems to bemoan the fact that, given the federal handgun age restriction, young adults are left with the option of purchasing only non-semi-automatic rifles, such as shotguns. Those can be quite powerful weapons but apparently not powerful enough for Nelson, who regards them as “not effective as self-defense weapons because they must be manually cycled between shots, a process which becomes infinitely more difficult in a life or death situation.”
And, Nelson continues, even if one acknowledges that “shotguns are effective weapons for self-defense in the home,” they are in some cases “outmatched” by semi-automatic rifles, which “are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage.” It’s worth stopping to ponder the phrases “roaming kids” and “collateral damage”—and to wonder why a federal judge sounds so much like someone running a booth at a gun fair—before getting to the next advantage that Nelson sees in semi-automatic rifles: they are “typically easier for small young adults to use and handle.” How small does he think the fingers on the trigger ought to be?
Even under the California law, it isn’t all that hard for an eighteen-year-old to get an AR-15. The minimum age applies to purchases, not possession. A parent or grandparent can give an eighteen-year-old a semi-automatic weapon as a gift or a bequest, and other relatives can loan such a gun. But the idea that there might be any oversight is treated as an insult by the majority in Jones v. Bonta. Judge Kenneth Lee, in a concurrence with what he calls Nelson’s “excellent” opinion, expresses alarm at where else minimum-age laws might lead—would men be denied their gun rights on the basis of their gender, just because they committed murders more often than women? Both judges captured a tendency on the part of gun-rights advocates to insist that there is much too little deference to their freedom to arm themselves in any way they wish—that gun owners are the ones who are disrespected and discriminated against, with their rights treated as “second class.”
As the lone dissenting judge, Sidney Stein, noted, the California law was enacted, in part, in response to a shooting at a synagogue; in that case, the shooter was nineteen and had an AR-15-style weapon. Lee, in his concurrence with the majority, observes that “our hearts break” for the victims of shootings, a sentiment that he hollows out by quickly adding, “But only a tiny number of people abuse their rights and wield guns for unlawful violence.” In 2020, firearm-related fatalities became the leading cause of death for American children and adolescents between the ages of one and nineteen, surpassing motor-vehicle accidents and drug overdoses. And many gun deaths among young people are suicides—acts that are often as impulsive as they are irreversible.
One question, reading Nelson’s decision, is how the federal minimum age of twenty-one for handgun purchases could survive under his logic. It’s an urgent question. In another case last year, in the Fourth Circuit, Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, a three-judge panel found that the federal minimum is unconstitutional. But that decision was abruptly mooted when the plaintiff turned twenty-one. The mix of plaintiffs in Jones v. Bonta is engineered to avoid that pitfall. In that sense, it is wrong to say, as the fatalists do, that nothing will ever change when it comes to guns in America—things could change for the worse, and quite quickly. That is true despite the fact that polls show that a great majority of Americans support tightening gun laws. Concerted political action may be needed just to keep the country from moving backward.
The Jones v. Bonta decision will be appealed—and the Ninth Circuit has already given the plaintiffs some extra time, until July 25th, to prepare their briefs. The parties, in a joint filing, said that the extension would give the court time to factor into their decisions “the U.S. Supreme Court’s anticipated decision in New York State Rifle & Pistol Ass’n v. Bruen,” which “will address potentially related Second Amendment issues.” That case is a challenge to restrictions on concealed carry in New York, but the Court may use it as a vehicle for an even more heedless loosening of laws, putting more guns in more hands, young and old. If so, inevitably, more of those guns will be pointed at children.
