Minors, Guns, History, and the Second Amendment

By Robert J. Spitzer

In 2022, the US Supreme Court handed down one of the most consequential, and contentious, rulings of recent times. In the case of New York State Rifle and Pistol Association v. Bruen, the high court’s decision has two significant consequences: it expanded Second Amendment gun carry rights to public spaces, and it recast the basis for determining the constitutionality of current gun laws by asking whether they are “consistent with this Nation’s historical tradition of firearm regulation.” In the majority opinion Justice Clarence Thomas stated that old gun laws need not be “dead ringers” for current laws, but they should be similar or “analogous.” As a consequence of this decision, all manner of gun laws have been newly subject to constitutional challenge in court—among them, laws that restrict firearms access to those under 21. In this blog, I outline the results of my recent research on how the age of majority (or legal adulthood) was defined in earlier US history, and what that’s meant and means with respect to age restrictions on firearms and other weapons.

Young People and Crime

It has long been known that young people are more likely to be arrested and convicted of crimes, including violent crimes. For example, while those between the ages of 18 and 20 compose less than 4 percent of the population, they account for more than 15 percent of those charged with murder or non-negligent manslaughter. A US Department of Justice study spanning the period from 1980 to 2008 reported that those between the ages of 18 and 24 consistently had the highest rate of homicide. In 2019, according to FBI data, the age cohort that committed the largest number of homicides that year was 19-year-olds, followed by 18-year-olds. Certainly, criminality does not cease for those 21 and older, but society takes a greater interest when criminality involves minors.

These concerns have not deterred the recent post-Bruen effort to challenge firearms restrictions on those under 21 as an infringement on Second Amendment rights. When confronted with challenges to such laws, the courts have thus far arrived at opposing results based on their own interpretations of gun law history. For example, in September 2022 a federal judge in Texas struck down a state law barring concealed gun carrying to those under 21 in a ruling that, according to the judge, was “informed by Founding-Era history and tradition.” While, in March 2023, a federal appeals court in Florida upheld the state’s law barring the sale of long guns to those under 21 (a law enacted after the 2018 Parkland high school mass shooting), finding that it was “consistent with this nation’s historical tradition of firearm regulation.” As of this writing, at least six federal court decisions have ruled on similar questions, with three cases upholding the laws restricting access to weapons for those under 21,1 and three declaring them unconstitutional.2

Based on my research, I’ve outlined three key questions that can help us understand whether and how the historical tradition of regulating firearms in this country informs court challenges questioning whether access to guns should be set at 18 or 21: What was the age of majority (that is, the age at which the law considers a person to be an adult) early in America’s history? Did age restrictions apply to minors’ access to, and use of, weapons? If so, what was the age of majority, if any, when it came to guns early in our history?

… while those between the ages of 18 and 20 compose less than 4 percent of the population, they account for more than 15 percent of those charged with murder or non-negligent manslaughter.

The Age of Majority in the 1700s and 1800s

From the colonial era through the nineteenth century, and up until 1971, the generally recognized age of majority in America was 21. While other ages have pertained to different responsibilities or rights historically in the United States, my concern in this essay is with how this applies to firearms ownership. As the constitutional scholar James Kent noted in his early nineteenth century classic Commentaries on American Law, “The necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. The age of twenty-one is the period of majority for both sexes… The age of twenty-one is probably the period of absolute majority throughout the United States…” As reflected by Kent at that time, the term “infants” applied to those that are now called minors. As Vivian Hamilton noted in her study of the definition of adulthood in the US: “The immediate historical origins of the US age of majority lie in the English common law tradition. The American colonies, then the United States, adopted age twenty-one as the near universal age of majority. The US age of majority remained unchanged from the country’s founding well into the twentieth century.” Black’s Law Dictionary, published in 1891 on both American and English legal terminology, similarly defined “infancy” as “the state of a person who is under the age of legal majority,—at common law, twenty-one years…”3

Historical Weapons Restrictions and Minors

My own research on historical weapons laws pertaining to minors throughout the US reveals many early laws restricting minors’ access to firearms and other dangerous weapons. The oldest was a New York City law from 1763 that singled out any “children” or “youths” who discharged any firearm or fireworks within the city as subject to penalty. From then up to 1860, twelve state and municipal laws were enacted across seven states to keep weapons (including but not limited to guns) out of the hands of minors. After the Civil War, as the population transitioned dramatically from more rural to urban areas, such laws proliferated. From 1861 to 1900, nearly 60 related state and municipal laws were enacted in 31 states, mostly to keep handguns (although sometimes other kinds of guns) and other dangerous weapons from minors. Some of these laws made exceptions if parents consented to or supervised the use of weapons. In the early 1900s, another six states enacted such laws. In all, from the 1700s through the early 1900s, over 100 local and state laws were enacted across 46 states to restrict guns from minors.

For example, an 1858 Tennessee law made it a crime to sell, loan, or give to “any minor” (defined by state court as under 21 at the time) “any revolver or other pistol, dirk, bowie knife, razor, slung shot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon.” An 1877 Indiana law made it “unlawful for any person to sell, barter, or give to any other person, under the age of twenty-one years, any pistol, dirk, or bowie-knife, slung-shot, knucks, or other deadly weapon that can be worn, or carried, concealed upon or about the person, or to sell, barter, or give to any person, under the age of twenty-one years, any cartridges manufactured and designed for use in a pistol.”

The defined age of majority in these laws varied, but as illustrated by the examples above the most commonly set age, in roughly half of the laws examined, was 21. When the age of majority was set lower, these laws often included qualifiers, like limiting the gun activity allowed for minors to hunting or limiting firearms use subject to parental guidance.

Some have pointed to the minimum age of militia service, defined in a 1792 federal law as beginning at age 18, as supporting the conclusion that the historical age of majority when it came to guns was 18. But this is incorrect for two reasons. First, militia service was an obligation, not a right—these are two entirely different things. An obligation is something one must do under law, as in to submit to military service under circumstances of a military draft, for example. According to Black’s Law Dictionary, an obligation is “[t]hat which a person is bound to do or forebear; any duty imposed by law. . . .” A right, on the other hand, is something that one may do by one’s own judgment, or “powers of free action.” One does not necessarily implicate the other. Second, even though militia members were required to obtain their own firearms and equipment at their own expense, every state in the country in the 1790s enacted enabling legislation that exempted militiamen under 21 from this and other obligations, often placing the burden on young soldiers’ parents to pay for their weapons.

In all, from the 1700s through the early 1900s, over 100 local and state laws were enacted across 46 states to restrict guns from minors.

Guns and College Campuses

One other category of age-based historical weapons restrictions—and one that has received little attention—is dangerous weapons rules on college campuses. The young adult population that is most heavily represented on residential campuses today (roughly ages 18-22) closely parallels the age range of college students in centuries gone by.

Historian and fellow Regional Gun Violence Research Consortium member Saul Cornell noted about campuses in earlier American history that “College was one of the very few circumstances where minors lived outside of their parents’ or a guardian’s direct authority;” thus, “minors attending college traded strict parental authority for an equally restrictive rule referred to as ‘in loco parentis,’” which means acting in place of a parent but with equivalent authority over minors. Based on this authority, colleges and universities enacted a web of rules and restrictions pertaining to the conduct of their students, including pertaining to weapons.

The nation’s oldest institution of higher learning, Harvard, enacted the following prohibition in 1655: “noe students shall be suffered to have [a g]un in his or theire chambers or studies, or keepeing for theire use any where else in the town.” Likewise, in 1745, Yale penalized any student who kept or fired a gun either on or within two miles of campus.

To my knowledge, no central repository of old college student codes exists, a fact that has made the excavation of these old codes challenging. Still, I have identified at least 12 state university systems’s codes (many applying to multiple campuses) and nearly 50 codes for private colleges that imposed firearms restrictions, beginning in the 17th century through the late 19th century, with most of the codes from the early nineteenth century. Tellingly, all of these student codes included an anti-weapons restriction, a fact which implies that such codes may have been common, if not ubiquitous on campuses.

Is History the Way Forward?

Many objections and criticisms have been leveled against the Supreme Court’s new history-based yardstick for judging modern gun laws, not the least of which is that no similar standard is used to judge other constitutional rights. As Pepperdine law professor Jacob Charles noted, “This kind of history-only test is not used for nearly any other constitutional right.” That aside, the lesson from our own history is clear: hundreds of years ago, officials understood that the intersection of minors and weapons posed a special risk that justified greater legal restrictions. Contemporary evidence supports the same conclusion.


Robert J. Spitzer is distinguished service professor of political science emeritus at SUNY Cortland. He is the author of six books on gun policy, including Guns Across America: Reconciling Gun Rules and Rights (2015) and The Politics of Gun Control (9th ed., 2024). His newest book, The Gun Dilemma, was published in 2023 by Oxford University Press. He is also a member of the Regional Gun Violence Research Consortium. The views expressed here are solely those of the author.

[1] Firearms Policy Coalition, Inc. v. McCraw, 623 F.Supp.3d 740 (N.D. Tex. 2022); Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives E.D. Va. NO. 3:22-CV-410, 2023 WL 3355339 May 10, 2023; No. 3:22-cv-410, 2023 WL 5617899 August 30, 2023; Worth v. Harrington 2023 NO. 21-CV-1348 KMM/LIB, WL 2745673 D. Minn. 8th Cir. 2023.

[2] Reese v. Bureau of Alcohol Tobacco Firearms & Explosives 647 F.Supp.3d 508, W.D. La., 2022; National Rifle Association v. Bondi, 61 F.4th 1317 (11th Cir. 2023); Jones v. Bonta, 2023 US Dist. LEXIS 219150, 2023 WL 8530834, California Southern District Court, December 8, 2023.

[3] Merriam Webster’s Dictionary of Law defines “infant” as “a person who is not of the age of majority.” (Springfield, MA: Mirriam-Webster, 1996), 243.