While writing an expert declaration rebuttal for Birney v. Delaware Department of Safety and Homeland Security (2024), which challenges Delaware’s law banning 18-20-year-old adults from possessing firearms, I ran into a surprising argument from gun-control-supporting “experts.”
They are trying to justify bans on young-adult possession of firearms (as persons under 21 used to be until the 1960s) by pointing to a bunch of laws—including regulations on toy guns—passed in the states after the ratification of the Second Amendment and before ratification of the Fourteenth Amendment.
The U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022) gave preference to the historical traditions of the Founding Era (before 1791), but at least admitted that laws between 1791 (when the U.S. Bill of Rights was ratified) and 1868 (when the Fourteenth Amendment was ratified) might have some relevance.
The laws cited by the gun-control expert, Robert J. Spitzer, a political science professor at State University of New York Cortland—he teaches, among other things, a course on gun control—included laws that regulate the transfer of firearms (or toys that could be misused as firearms) to minors. One law, from 1881, that is listed in the Digest of the Laws of Pennsylvania reads:
Any person who shall knowingly and willfully sell or cause to be sold to any person under sixteen years of age, any cannon, revolver, pistol or other such deadly weapon, or who shall knowingly and willfully sell, or cause to be sold, to any such minor, any imitation or toy cannon, revolver or pistol so made, constructed or arranged as to be capable of being loaded with gunpowder or other explosive substance, cartridges, shot, slugs or balls and being exploded, fired off and discharged, and thereby become a dangerous or deadly weapon … .
Professor Spitzer also cited this 1856 law from Tennessee, though it is clearly less than Spitzer claims:
Be it enacted, that, hereafter, it shall be unlawful for any person to sell, loan, or give, to any minor a pistol, bowie-knife, dirk, or Arkansas tooth-pick, or hunter’s knife; and whoever shall so sell, loan, or give, to any minor any such weapon, on conviction thereof, upon indictment or presentment, shall be fined not less than twenty-five dollars, and be liable to imprisonment, at the discretion of the Court: Provided, that this act shall not be construed so as to prevent the sale, loan, or gift, to any minor of a gun for hunting.
Lots of things, including pistols, could not be transferred to a minor according to this law, but a transfer of a gun for hunting was not prohibited. Back to toy guns, this 1883 Michigan law is one example they cited:
An Act To Prevent The Sale And Use Of Toy Pistols, § 1. That no person shall sell, give, or furnish to any child under the age of thirteen years, any cartridge of any form or material, or any pistol, gun, or other mechanical contrivance, specially arranged or designated for the explosion of the same.
This 1883 New Hampshire law is another example they want to use to justify modern gun bans and other gun-control laws:
If any person shall have in his possession a toy pistol, toy revolver, or other toy firearms, for the explosion of percussion caps or blank cartridges, with intent to sell the same, or shall sell, or offer to sell or to give away the same, he shall be fined not more than fifty dollars; and he shall be liable for all damages resulting from the use of the toy pistol, revolver, or other firearms by him sold or given away, to be recovered in an action on the case.
At this point, you are probably wondering, are these cap guns they are trying to keep out of the hands of children? It was once very common for kids to play with what looked like little six-shooters that used rolls of paper caps containing shock-sensitive explosives. These toy guns are still available; in fact, you can find them on Amazon. But traditional cap guns are less common today. Instead, today’s youngsters covet “Nerf guns” or competing products that shoot soft darts. These typically don’t look much like real guns. That wasn’t the case when I was a kid. I am not sure what it cost when my parents bought it for me for Christmas, but I once got a sort of miniature M1 Thompson. It took a roll of caps in a 30-round stick magazine. (Not to worry, these were not detachable magazines.) You cocked it by pulling back on the side-mounted charging handle. When you pulled the trigger, it would use the energy in the spring and let you go through a complete roll of caps “full auto.”
Back to these “expert” briefs arguing why these old laws can be used to justify gun bans and other gun-control laws, when I was reviewing their arguments, I briefly wondered if “toy pistol” in those laws meant something different back in the 19th century. I checked with the Patent Office. Patent 151,063, for example, described the “object of my invention is to furnish to children a neat and amusing toy gun or catapult; by which a dart may be thrown to a considerable distance, it being easily and conveniently handled.” Another patent for “toy guns” indicated that “different-sized missiles” are “propelled by a spring.” Other patents describe a device holding “a coil of fulminate-ribbon.”
To argue that these justify actual gun bans, Spitzer references an article at the Duke University Law School website (they are not pro-freedom), concerning “toy guns” that admits that these were toys in the modern sense. It asks, “Why did states strictly regulate toy firearms in the late 1800s? In particular, why did some states seemingly regulate toy firearms more rigorously than they did real firearms? ... The world may never know.”
I think I know. In the late 1980s and the early 1990s, there were way too many news accounts like this one from the Lafayette Journal & Courier from Jan. 1 1988: “In California, a teenager playing with a toy gun was killed by a police officer who thought the gun was real.” These horrific mistakes have occurred because police have real reason to fear teenage gang members. I can remember entering a park in San Jose, Calif., in about 1986 while a pack of kids, some of whom were big enough that they might have been able to pass for teenagers in daylight, were leaving the park heavily armed; one was carrying a disturbingly realistic MAC-10. It took a second or two for me to figure out that these were kids and that his MAC-10 was made of plastic.
In 1993, the federal government prohibited manufacture, shipping, transport or sale of “any toy, look-alike, or imitation firearm” unless it had a “blaze orange” tip on the end of the barrel. I suspect a similar motive was behind the 19th century toy gun-control laws. It would be easy to mistake a big 13-year-old with a realistic toy gun for someone with criminal intent.
I think all of us can get behind “toy gun control” for reasons like this. It is also entertaining that the “experts” making declarations in the courts are reduced to citing toy gun-control laws as their justification for infringements upon the Second Amendment.
Of course, toy guns can be made of flesh, as well. There have been some really dumb “zero-tolerance” policies by local schools reacting to kids pointing fingers at each other. Here is an example from 2014 in an Ohio school:
The suspension last week of an Ohio fifth-grader who formed his hand into the shape of a gun and pointed his finger “execution-style” at a classmate is fueling the debate over whether school administrators under pressure to keep schools safe are punishing students excessively for imaginative play.
Officials at Devonshire Alternative Elementary School defended their decision to suspend 10-year-old Nathan Entingh, whose hand they designated as a “level 2 lookalike gun.” Gun play at the school had become a problem, they said, and students and parents had been warned against it.
I am almost afraid to find out what level 1 and level 3 “lookalike” guns are.
Meanwhile, the legal fight continues to retain and win back the Second Amendment rights of those aged 18 through 20. As I write this, cases like Birney v. Delaware Department of Safety and Homeland Security are ongoing. In Fraser v. Bureau of Alcohol, Tobacco, Firearms and Explosives the court ruled that federal law that prohibits transfers of handguns to 18-21 adults by Federal Firearms Licensees violates the Second Amendment. If the ATF has appealed this decision, it has left no tracks that I can find.
Also recently, in Columbus, Ohio, legislators passed an ordinance that, among other things, banned 18-21-year-olds from possessing firearms. Because Ohio has a preemption law that prohibits local governments from passing gun laws more restrictive than state law, this led to a lawsuit—City of Columbus v. State of Ohio. (In this case, it was nice to get paid by a state government to write an expert declaration in defense of gun rights instead of writing declarations in opposition to a government body.) This case seems to be still in the procedural-arguments stage as this issue goes to press.
In sum, these paid gun-control “experts” have found no laws prohibiting firearms ownership by 18-21-year-olds in the Founding Era. Indeed, there are laws requiring teenagers as young as 15 to show up armed for militia duty. Some colonies required parents to supply guns to their teenagers for militia duty.
The best that Professor Spitzer could point to were rules adopted by some universities prohibiting possession of guns by students. Some of these rules, such as Yale’s 1745 rule, also banned other distractions from study:
Shall Go a Gunning, Fishing or Sailing, or Shall Go more than Two Miles from College upon any Occasion whatsoever: or Shall be Present at any Court, Election, Town-Meeting, Wedding, or Meeting of young People for Diversion or any Such-like Meeting which may Occasion Mispence of precious Time without Liberty first obtain’d from the President or his Tutor, in any of the cases abovesaid he Shall be fined not exceeding Two Shillings.
Yale’s 1795 rules for students did limit students’ ownership of guns, but they also did this:
IF any Scholar shall deny the Holy Scriptures, or any part thereof, to be of divine authority; or shall assert and endeavour to propagate among the Students any error or heresy, subverting the foundation of the Christian religion, and shall persist therein, after admonition, he shall be dismissed.
Somehow, Spitzer’s citations of those gun rules suddenly seem less persuasive.
