The NRA’s lawsuit against Florida is flimsy

ON February 28th, two weeks after a 19-year-old gunman killed 17 people in Parkland, Florida, President Donald Trump said “it doesn’t make sense” for teenagers to be allowed to buy a semi-automatic weapon when federal law bans handgun sales to people under 21. Roughly 80% of Americans agree with that sentiment and, on March 14th, a nationwide student walkout urged broader action to combat gun violence. But after a talking-to in the Oval Office from a National Rifle Association (NRA) lobbyist, Mr Trump changed his tune. On March 12th he tweeted, in the face of evidence to the contrary, that there is “not much political support (to put it mildly)” for raising the age to buy rifles. Mr Trump says he prefers to wait and see how the courts handle challenges to age limits in the states.

He appears to be thinking of the conflict that is brewing in Florida, where the NRA filed a lawsuit on March 9th claiming that the Sunshine State’s new age restrictions violate the constitutional rights of 18- to 20-year-olds wishing to buy semi-automatic weapons. “At 18 years of age,” the complaint reads, “law-abiding citizens in this country are considered adults for almost all purposes and certainly for the purposes of the exercise of fundamental constitutional rights.” Noting that 18-year-olds “are eligible to...fight and die by arms for the country”, the NRA argues that Florida’s ban on sales to people under 21 is invalid under the Second Amendment, which protects the right to bear arms, and the 14th Amendment, which guarantees the “equal protection of the laws”.

According to Laurence Tribe, a law professor at Harvard, the NRA “should and probably will lose”. No court has found people aged 18 to 20 to be a class worthy of special constitutional protection. In 1970, when Congress turned to the 14th Amendment to justify lowering the voting age from 21 to 18 in state and local elections, the Supreme Court balked. (Stephen Vladeck, a law professor at the University of Texas, says this ruling, in Oregon v Mitchell, spurred the adoption of the 26th Amendment, establishing a uniform voting age of 18, a year later.) Josh Blackman, a professor at South Texas College of Law, recalls that in 2014 the Supreme Court refused to take up a challenge to a Texas law barring 18-20-year-olds from buying guns. There is no constitutional problem with considering young people to be “generally immature”, and therefore not qualified to buy guns, said the Fifth Circuit Court of Appeals. This ruling came from one of America’s most conservative federal appeals courts.

The NRA suit takes a peculiar turn when it claims that the ban “particularly infringes” on the gun rights of young women. “Females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting” like the massacre in Parkland, the NRA observes. In 2015 they were responsible for only 1.8% of violent-crime arrests, as compared with 8.7% for men aged between 18 and 21. Whether or not it is generally unconstitutional, then, “Florida’s ban is...invalid as applied to women between the ages of 18 and 21”.

That is a curious point (a “stupid” one, says Mr Tribe). The argument implies that a ban on young men buying guns may be less constitutionally problematic than the bill Governor Rick Scott signed on March 9th. But unlike laws that discriminate based on age, Mr Vladeck notes, laws that discriminate based on sex must have stronger justifications. In 1976, the Supreme Court ruled in Craig v Boren that barring men under 21 from buying low-alcohol beer, but permitting women to buy it on their 18th birthday (as women are less dangerous drivers), constituted discrimination in violation of the 14th Amendment.

With overblown rhetoric and scant legal merit, the NRA’s suit seems unlikely to bring down Florida’s law. But by picking this state-level fight, America’s most effective lobbying group may have set its sights elsewhere. For Adam Winkler of UCLA law school, the lawsuit may be a loser in court but will “signal to donors and die-hard members” that the NRA is “fighting for your rights at every turn”. The move may also provide cover for Mr Trump and avert a quick vote in Congress on higher age limits. The NRA seems to be wagering, as it has quite successfully in the past, that popular sentiment for tighter gun laws will wane as soon as the most recent massacre recedes from memory.