No. 11-10959
extensive with the duty to serve in the militia. See Heller, 554 U .S. at 589–94 (decoupling
the former from the latter). Second, if the right to arms and the duty to serve in the militia
were linked in the manner that Appellants declare, then Appellants’ argument proves too
much. In some colonies, able-bodied sixteen-year-olds were obligated to serve in the militia,
andyet, Appellants assure us thatthey are not challenging restrictions onhandgun possession
by or sales to persons under age 18. E.g., Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 62
(assigning tomilitia “every able bodied male person [with exceptions] from sixteen years ofage
to fifty”). Third, in some colonies and States, the minimum age of militia service either dipped
below age 18 or crept to age 21, depending on legislative need. Compare An Act for the Better
Regulating [of] the Militia, ch. 20, §§1, 4, 1777 N.J. Acts 26 (setting minimum age at 16 in
1777), with An Act to embody, for a limited Time, One Thousand of the Militia of this State,
for the Defence of the Frontiers thereof, ch. 24, §§ 3-4, 1779 N.J. Acts 58, 58-69 (setting
minimum age at 21, but reserving right to accept age 16-21, in 1779). Such fluctuation
undermines Appellants’ militia-based claim that the right to purchase arms must fully vest
precisely at age 18—not earlier or later. Indeed, the 1792 Militia Act gave States discretion
to impose age qualifications on service, and several States chose to enroll only persons age 21
or over, or required parental consent for persons under 21. E.g., An Act to regulate the Militia,
§ 2, 1843 Ohio Acts 53, 53 (setting minimum age at 21). And this is all not to mention the
anachronism at play: we no longer have a founding-era-style militia.
Appellants also argue that a Second Amendment right to purchase firearms from FFLs
vests at age 18 because the age of majority is now 18. True, in the 1970s, States lowered the
age of majority for most purposes from 21 to 18. But “majority or minority is a status,” not a
“fixed or vested right.” Jeffrey F. Ghent, Statutory Change of Age of Majority as Affecting Pre-
existing Status or Rights, 75 A.L.R. 3d 228 § 3 (1977). The terms “majority” and “minority”
lack content without reference to the right at issue. Seventeen-year-olds may not vote or serve
in the military, while 18-year-olds may. Twenty-year-olds may not purchase alcohol (by state
statute), purchase lottery tickets in some States (e.g., Ariz. Rev. Stat. § 5-515(a)), purchase
handguns in some States (by state statute), or purchase handguns from FFLs (by federal
statute)—while21-year-oldsmay. Neither the Twenty-Sixth Amendment nor state law setting
the age of majority at 18 compels Congress or the States to select 18 as the minimum age to
purchase alcohol, lottery tickets, or handguns.
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D. Whether to Apply a More or Less Demanding Level of Scrutiny
Assuming that the challenged federal laws burden conduct within the
scope of the Second Amendment, we must evaluate the laws under a suitable
standard of constitutional scrutiny. A law that burdens the core of the Second
Amendment guarantee—for example, “the right of law-abiding, responsible
citizens to use arms in defense of hearth and home,” Heller, 554 U.S. at
635—would trigger strict scrutiny, while a less severe law would be
proportionately easier to justify. See Heller II, 670 F.3d at 1257; Masciandaro,
638 F.3d at 470; Chester, 628 F.3d at 682. The latter, “intermediate” standard