The short version: A three judge panel of the Third Circuit court found that 18, 19, and 20 year olds are part of the people.

One judge doesn’t think so.

Circuit Judge Restrepo does not believe that infringing on the right of adults to keep and bear arms is unconstitutional.

His argument focuses on the phrase “The People”. However, there is no dispute that there is some age threshold before which the protection of the Second Amendment does not apply. I’m not sure if this is true.

I’m not double-checking his citations. That could be an error on my part.

The public in 1791 did not understand those under 21 to be part of “the people” protected by the Second Amendment.

This is a strong statement, his argument:

The Majority said, The words “the people” in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds,….

From this, it follows that there are some people who are not adults and thus are not part of The People. Since those that were under the age of 21 were considered minors from before the founding and through Reconstruction were considered minors, they were not adults and thus not part of The People.

Restrepo: there is evidence that the Founding-era public would not have understood the text of the Second Amendment to extend its protection to those under 21.

At the time of the founding, a person under the age of 21 was considered an infant under the law, and a minor in common speech. Multiple citations to legal definitions from the Founding.

Ok, it took a bit to get here, but the Majority does provide the clues to get there.

Under Heller, as affirmed in Bruen, we first consider if the proposed conduct implicates the plain text of the Second Amendment. If it does, then the government carries the burden of providing a history and tradition of regulations matching the current infringement.

Those two steps, “plain text” and “historical analysis” are very distinct.

Under the plain text of the Second Amendment, every American’s right to keep and bear arms is protected. Be that a felon, a law-abiding citizen, a drunkard, or a newborn infant. That is the plain text.

Since the plaintiffs (good guys), are a member of The People, and their proposed conduct implicates the Second Amendment, they have satisfied the first step in Heller.

The dissent argues that are not part of the people. Since they are not part of the people, the Second Amendment doesn’t apply to them. Since the Second Amendment doesn’t apply to them, there is no need for the government to prove a history or tradition.

This is moronic circular reasoning.

The plain text is implicated. The government now has the burden to prove, by us of regulations from the founding era, that there is a history and tradition of denying those under 21 the right to keep and bear arms.

The reasons our founding fathers use might be that those under 21 are not part of the people. Or it could be some other reason, but the state still bears the burden of providing those historical regulations.

Judge Restrepo’s argument reminds me of the “you ain’t the militia, the Second only applies to the militia” reasoning of the late twentieth century through 2008 courts.

It is difficult not to get caught in that sort of reasoning. The founding fathers might have considered those under 21 to be minors or infants. But that doesn’t matter. It only matters if there are regulations denying them rights.

In addition, we have amendments after the founding that changed that definition. Regardless of what the founding fathers considered a minor, we modified our constitution to make 18 year-olds adults in the eyes of the law. To deny that truism is to say that only white, landed, men are protected under the Constitution.

I hope you enjoy this short one.