What if Americans are arguing about the wrong constitutional amendment? The spirit of the Second Amendment, from 1791, is a focal point of debates about young men and guns in the wake of the ghastly mass shootings at a Buffalo grocery store and a Uvalde, Tex., elementary school. But the spirit of the 26th Amendment, from 1971, lurks in the background.
On paper, the 26th Amendment is straightforward enough: It sets the voting age in state and federal elections at 18, instead of 21. But the rise of mass shootings illustrates how this diminished age of adulthood is an increasingly uneasy fit with modern American life.
For hundreds of years, the “age of majority” in the Anglo-American legal tradition was 21. The 26th Amendment led to the overturning of that tradition in U.S. law over the course of the 1970s and 1980s. In matters such as child custody, contracts and medical autonomy (though not alcohol consumption) states followed the amendment’s logic and lowered their thresholds for adulthood. Today, it’s 18 years at the federal level and in almost all states.
Yet restricting access to firearms among people who are older than 18 but younger than 21 is now a centerpiece of gun-control deliberations both in Congress and in state legislatures. The rationale is clear: The perpetrators in Buffalo and Uvalde were both 18 years old, and a 2018 data analysis found that young men who are legally adults but not yet 21 account for one-third of school-shooting injuries and deaths.
In upholding the federal government’s ban on most handgun sales to Americans younger than 21, the U.S. Court of Appeals for the 5th Circuit in 2012 cited the fact that “the line between childhood and adulthood was historically 21, not 18.” Congress passed the handgun law in question in 1968, and legislative materials from that time distinguished between “juveniles” (under 18) and “minors” (under 21).
But the U.S. Court of Appeals for the 9th Circuit last month took a different approach in invalidating a 2018 California state law that barred the sale of semiautomatic rifles to anyone under 21. The judges pointedly referred to the teens affected by the ban as “young adults” and cited the history of militia service by minors as young as 16.
Whatever age restrictions allowed by the courts (and Supreme Court guidance at some point seems inevitable), the fact that 18 has been embedded for a half-century as the principal American age of majority has likely strengthened political resistance to gun regulations aimed specifically at young people.
But what if the 26th Amendment — or at least the downstream legal changes it accelerated — was a mistake, and age 21 remains the better baseline? Vivian Hamilton, a professor at William and Mary Law School, argued in 2016 that the mid-to-late 20th-century downgrade in the age of majority was driven not just by young peoples’ service in the Vietnam War but by what she calls a “historical aberration — the rapid transition to adulthood that occurred during a postwar industrial economy.”
An unusual set of circumstances made an 18-year-old age of majority seem natural in the 1960s and 1970s. Young adults were numerous (and politically powerful) because of the baby boom. Rights expansions for women and racial and ethnic minorities made young adults seem like the next frontier. And favorable mid-century labor market conditions made secure employment and marriage more attainable at a younger age.
But that “legal construction of adult status is starkly at odds with the modern social meaning and experiences of adulthood,” Hamilton continued. The delay in millennial economic independence and marriage has been amply documented. More recently, so has the increase in mental health disorders and suicides among young people. These trends probably manifest in their most extreme form in violence among alienated young men.
The 26th Amendment is as secure as the Second Amendment — that is to say, it isn’t going anywhere. But the acute dilemma posed by the United States’ violent young men and guns could be an opportunity to begin pushing the age of majority back upward for certain purposes. That ought to make gun regulation for Americans under 21 more politically salable.
There could be other benefits. If young peoples’ parents or guardians had to co-sign their student loans, perhaps the volume of student debt, and wasted degrees, would be lower. If child-support payments had to continue beyond age 18, perhaps divorce would not have accelerated as quickly in the late 20th century. There are strong arguments for raising the legal age to 21 from 18 for appearing in pornography. In criminal law, the age of eligibility for the death penalty could also be increased and “youthful offender” programs expanded.
Mass shootings, and the political efforts to address them, are a glimpse into the nation’s wider challenges in regulating life at the threshold of adulthood. The ideologically polarizing debate about the Second Amendment will continue, but Americans may be more likely to find common ground on the questions associated with the 26th.
