PHILADELPHIA (CN) — In the wake of a Supreme Court ruling last year that shook up Second Amendment rights across the country, a Third Circuit panel put their focus Wednesday on Pennsylvania laws that prevent adults between the ages of 18 and 20 from carrying firearms during declared states of emergency.
“I have a feeling we have not seen the last of these sorts of cases,” U.S. Circuit Judge Brooks Smith noted at the arguments in Philadelphia. “And they will create interesting questions for district courts.”
Three members of the Firearm Policy Coalition brought the underlying complaint, saying state law prohibited them from carrying firearms after the governor declared the Covid-19 pandemic to be a state of emergency in 2020, as well as in 2018 when a similar declaration was made for opioid abuse.
Even though both statewide emergency declarations ended in 2021, and even though Madison Lara and her co-plaintiffs have since aged out of the age restriction, attorney John Ohlendorf maintained Wednesday that the case still presents a pressing Second Amendment issue.
“Declared emergencies are unfortunately a common occurrence in Pennsylvania,” the Cooper & Kirk lawyer told the panel. “From hurricanes to opioids, winter storms to highway collapses, an emergency has been declared on average about once every six months of the last 20 years.”
The latest happened just a few weeks ago on June 12, he said, when a portion of Interstate 95 collapsed in Philadelphia after a tanker truck overturned beneath the highway, killing its driver and sparking a fire that brought down the northbound side of the expressway.
When a state of emergency was declared in the area, it again became illegal for adults under 21 to carry guns in any manner.
Speaking for the state’s police commission, Daniel Mullen with Pennsylvania’s Office of the Attorney General emphasized that the state of emergency was limited in that it only affected the rights of gun owners in the Philadelphia area.
The clarification appeared to disturb U.S. Circuit Judge Kent Jordan.
“Statewide or not, some group of people in the state were told that, in the city of Philadelphia this month, you can't carry. It's against the law,” the George W. Bush appointee said.
Mullen tried to highlight that all of the individual plaintiffs no longer fall in the 18-to-20 age bracket, but Jordan called it an irrelevant distinction, saying the laws would likely always some members of the group.
U.S. District Judge William Stickman IV struck down the suit by the Firearms Policy Coalition in April 2021, finding “the age-raised restrictions at issue fall outside the scope of the Second Amendment.”
Just over a year after this ruling out of Pittsburgh, however, the U.S. Supreme Court upended 14 years of Second Amendment case law with their decision in New York State Rifle & Pistol Association Inc. v. Bruen. The twist has forced judges around the country now to evaluate gun regulations based on historical analogies. If the Founding Founders did not have an analogous law regarding firearms, then neither can modern society, the high court decided.
Mullen argued Wednesday that lawmakers historically saw 18-to-20-year-olds as minors who did not have the right to bear arms.
“My understanding was that they were considered infants in the eyes of the law at the time of the founding, and didn't have independent Second Amendment rights for that reason,” Mullen said.
He argued that the Congress of 1868 would not have approved the 14th Amendment, which prevents states from depriving U.S. citizens of federal rights, without addressing that the amendment would invalidate several state-approved gun regulations pertaining to 18-to-20-year-olds.
Ohlendorf disputed this.
“Even that proposition is not enough to justify Pennsylvania's law because, at the time the 14th Amendment was ratified in 1868, there were only two or three states that impose any sort of age-based restriction on firearms, keeping it bearing firearms,” the attorney said.
When the Second Amendment was ratified, Ohlendorf continued, it gave rights to those 18 and older.
U.S. Circuit Judge Felipe Restrepo asked the coalition’s lawyer to clarify what the age of majority was at that time the Second Amendment was passed. “It's not crystal clear what the definition of an adult and their legal rights were at the founding,” the judge noted.
Ohlendorf argued that men must have possessed the right to carry at age 18 when the law allowed them to join militias.
“There were different age limits, some were 12, some were 14, some were 17. They vary based on gender. So I don't think one can say that there was one prevailing age of majority, but certainly 21 was the upper age of majority,” the attorney said.
Restrepo did not appear convinced.
“There's some historical support for the fact that the parents had to sign off on these or provide the weapons,” Restrepo said. The Biden appointee added that there were age restrictions at that time at universities and colleges, including Thomas Jefferson's University of Virginia, that banned firearms on campus.
Ohlendorf surmised that some historical sources “very clearly show robust evidence of the authority that parents had over the children living within their household.”
“We do not dispute that,” he said.
The Firearms Policy Coalition has been victorious post-Bruen in several other challenges of state bans surrounding gun rights for adults 18 to 20.
Smith, a George W. Bush appointee, asked Ohlendorf on Wednesday to clarify what Bruen hints should be the historical focus.
“What Bruen is crystal clear about is that late 19th century evidence is not instructive when it contradicts earlier, founding-era evidence,” Ohlendorf said.
“Your position is that 18-to-20-year-olds are part of ‘[we] the people’ unless we can find through analogical reasoning, historical antecedents that would take them out of ‘the people’ exactly?” Smith clarified.
The coalition’s attorney affirmed. The Second Amendment Foundation is also a plaintiff in the suit.
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