New York has long been the source of major litigation over gun control. Indeed, these cases have resulted in some of the most significant victories for gun rights advocates. That includes the possible loss before the Supreme Court in a pending major gun rights case. Now, New York has moved to ban anyone under age 21 from buying or possessing a semi-automatic rifle in response to the recent shootings at a supermarket in Buffalo. The culprit was 18 years old. There is growing support for such age limits after the Uvalde massacre, even though a similar limit was struck down in California. An appeal is proceeding in that case.

The age limit bill passed the Senate along party lines, 43-20. There is already an age requirement for the possession of a handgun.

The age limit could pass constitutional muster despite the opposing ruling in California. There will obviously be challenges and courts will ask why this individual right should be denied to 18-20 year olds. Likewise, they will ask why high caliber weapons are not subject to such age limits. These are good-faith questions and the courts will have to resolve whether the firing rate of semi-automatic weapons justifies the need for delaying such sales or possession.

It is often said that the Second Amendment is not an absolute right. That is clearly correct. Even the First Amendment is not absolute.  This point has been made repeatedly by President Joe Biden:

“At the same time, the Second Amendment, like all other rights, is not absolute. It was just — it was Justice Scalia who wrote, and I quote, ‘like most rights, the right — Second Amendment — by the — the rights granted by the Second Amendment are not unlimited.’  Not unlimited.  It never has been.  There have always been limitations on what weapons you can own in America.”

The President has often coupled this argument with a clearly false statement about bans on certain weapons when the Second Amendment was ratified.

The reference may be to this Scalia quote from the District of Columbia v.Heller decision:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Scalia did not state that there were bans on cannons or other weapons at the time of ratification. Rather, he stated that historically there were regulations of guns and specifically suggested that there could be limits on where guns are allowed for “sensitive places”:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

The court also ruled in Heller that, while some regulations may be upheld, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

The New York law could offer an important test of the outer boundaries of this right after the Court rules in the pending case. However, we are all waiting to see if the Court will clarify the range of movement allowed under the Second Amendment.

Gun rights advocates have long objected to the use of one line from Heller by lower courts to uphold an array of gun controls: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

The New York law falls into the category of “conditions and qualification on the commercial sale of arms.” The sustainability of that law may depend on the ruling in the next couple weeks in New York State Rifle & Pistol Association, Inc. v. Bruen. While the case does not deal with this type of limit on rifles, it may offer dicta that clarifies how much leeway the Second Amendment allows in such conditions and qualifications.

In any case, it is likely that New York will once again be the lead jurisdiction in the next round of gun control litigation.