Odds and Ends

Last month I mentioned that the clock was ticking; restrictive gun control—at least the most absurdly restrictive gun control—is about to die. This month, I have another encouraging example to share with you, from the Supreme Court of the State of Washington.

The case is State v. Sieyes (Wash. 2010), and at first glance, you may not recognize it as a victory. A Kitsap County deputy sheriff pulled a car over for speeding. He noticed that the front seat passenger made a “furtive motion toward the front passenger floorboard.” This led to a search, and the deputy found a .380 ACP pistol under the seat. The deputy arrested the passenger, a 17 year old, named Christopher Sieyes. Washington State’s laws allow a minor to possess loaded firearms under some conditions, such as hunting with a valid license, while under adult supervision, or on your parents’ property with parental permission. Outside the list of exceptions, however, the law prohibits minors from possessing firearms. Carrying a loaded firearm concealed in a car, isn’t one of those exceptions.1

I think most gun rights activists recognize that minors aren’t adults. While there are some very mature and responsible 17 year olds out there, there are plenty that aren’t, and many states regulate the circumstances under which minors may possess guns. Some states require minors to possess a firearms owners ID card. Some states require an adult to supervise a minor with a gun. Some states are extraordinary restrictive—to the point of absurdity.

Treating minors as less than adults isn’t special to firearms, either. For example, state laws generally don’t allow minors to make contracts, drop out of school, tell their parents what time they are coming home at night, or buy alcohol. There are exceptions: some states (such as Idaho) allow 16 year olds to drop out of school; some states set the age of consent for sex at 16 or 17. But these exceptions exist because the state legislatures have decided that it makes sense, not because minors have a right to all the same privileges as an adult.

At this point, some of you are probably saying, “But liberals keep insisting that minors are little adults, and have the right to have abortions without parental notification or consent, to have sex, etc.” Yes, indeed, liberals sometimes make these arguments, and I think they are wrong about this, both as a matter of public policy, and as a matter of constitutional law.

There is a pretty clear distinction that our laws have forever made between adults and minors, based on the indisputable fact that minors generally lack the maturity of adults. You can find plenty of exceptions, of course: very responsible, very mature 16 year olds, and astonishingly irresponsible, immature 25 year olds. Picking 18 years old as the dividing line for adulthood (or 21 with respect to alcohol and handguns) is completely arbitrary, and there are going to be people on both sides of that line who are in the “wrong” group. But that’s life and law: writing a clear-cut statute sometimes gives you less than perfect results.

Let me also point out that liberals aren’t the only group that buys into the “minors are little adults” theory when it is convenient. A number of states allow minors to be tried and punished as adults. There are certainly crimes so monstrous that you can argue that these teenagers deserve to be treated as adults—but this is perilously close to the liberal argument that we should treat 16 year olds as adults when it comes to sex and abortion.

Enough with legal philosophy; back to the Sieyes case. Sieyes decided to challenge this Washington law on the grounds that it violated his right to keep and bear arms under the Second Amendment. (The Heller decision had been handed down between his arrest and his case going to court.)

Your first question might be: why did Sieyes challenge this under Second Amendment? Wouldn’t the Washington State Constitution’s guarantee of a right to keep and bear arms be a sufficient argument? The Washington Supreme Court has previously recognized that Art. I, sec. 24 of the Washington Constitution protects an individual right to possess a Colt CAR-15.2 Why indeed? When a lawyer goes to court, he throws as much stuff at the wall as he can, in the hopes that some of it is going to stick. In this case, while the stuff thrown didn’t help Sieyes all that much—it certainly seems to have helped gun rights activists a great deal!

The Washington Supreme Court ruled that the Second Amendment is incorporated through the Fourteenth Amendment’s due process clause against the states. The Second Amendment, according to the Washington Supreme Court, is not just a restriction on the federal government.3 Now, remember, that while Heller certainly implied that this might be the case, the Heller decision was not explicit. This is why McDonald v. Chicago is going to be decided by the U.S. Supreme Court shortly—perhaps before you read this article.

To quote the Sieyes decision, “Accordingly we regard the history, lineage, and pedigree of the Second Amendment right to bear arms necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice. It is deeply rooted in this Nation’s history and tradition.”4 (And yes, I’m very pleased that in support of that claim, they cited my second book, For the Defense of Themselves and the State.)

The Washington State Supreme Court also acknowledged once again that the Washington Constitution’s guarantee is independent of the Second Amendment. Even if some future, Obama-appointee dominated U.S. Supreme Court reversed Heller, the Washington Constitution’s protections would still apply—and might even be more protective than the Second Amendment.5

Does the individual right apply to minors? The Washington State Supreme Court pointed out that Sieyes failed to present evidence concerning the traditional understanding of the right to keep and bear arms with respect to minors, and his attorney even conceded during oral arguments that some form of regulation was probably constitutional.6 Therefore they ordered the case back to the Washington State Court of Appeals to further discuss at what level the right to keep and bear arms—under both the Washington Constitution and Second Amendment—applies to minors.

Mr. Sieyes is very likely going to lose when the courts finish this process. I can tell you from my research into Colonial gun culture that minors, as young as 12, in many cases, were commonly allowed to go hunting. This does not, however, mean that they were therefore considered to enjoy the right to keep and bear arms. In light of the many limitations that our laws placed on minors in other areas, I have considerable confidence that the Framers would have considered some regulation of minors carrying firearms constitutional. A complete and utter ban would have been incomprehensible to the Framers—but the Framers also knew that not every right enjoyed by an adult applied to a minor.

Mr. Sieyes will likely lose this case. We should be happy that he challenged his conviction, nonetheless, because the Washington State Supreme Court finding that the Second Amendment applies to the states is a win for gun owners.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores. His web site is http://www.claytoncramer.com.

Still Ticking