A three-judge panel in the United States Court of Appeals for the Eighth Circuit has unanimously struck down a Minnesota law that forbids the exercise of rights protected by the Second Amendment for people over 18 but less than 21 years old. The decision is a significant victory in the ongoing process of restoring rights protected by the Second Amendment. Multiple infringements have piled up over the last century.

The particular infringements on the right to bear arms in Minnesota started in 1975. In 1975, the Minnesota legislature passed a sweeping gun control law that forbid anyone from carrying handguns in most circumstances. There were exceptions for carrying on your own land or home, for carrying while hunting, and for those who could convince a law enforcement official to issue them a permit to carry. The 1975 statute generally forbids people who were under the age of 18 from possessing or carrying handguns.

In 2003, as part of the push to restore rights protected by the Second Amendment, Minnesota replaced the “may issue” part of the statute with a “shall issue” statute. Under the “shall issue” statute, a permit had to be issued unless specific, objective criteria were violated. One of those criteria was a requirement to be at least 21 years old.

This criteria is what was challenged in the Minnesota lawsuit in the Eighth Circuit. If the court had followed the clear guidance put forward in the Bruen decision, the case would have been simple. The Rahimi decision reinforced significant parts of the Bruen decision. The three-judge panel made clear, unlike other circuits, the Eighth Circuit was going to follow the law and the Constitution and not defy the Supreme Court. From the opinion, p. 9:

Before Bruen, many circuits—but not this court—had “coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”

The three-judge panel swept aside the “nearly frivolous” claims of the State of Minnesota to derail the case on standing, claims 18-20 year-old citizens were not part of “the people” and claims 18-20 year-old citizens were mentally deficient. Then it got to the heart of the matter: The State did not show that restricting 18-20-year-old citizens’ right to bear arms in public was part of the nation’s historical tradition of regulation. Here is the summation, written by Benton, Circuit Judge:

Minnesota’s permit-to-carry statute, among its objective criteria, requires applicants to be at least 21 years old. Three gun rights organizations—the Second Amendment Foundation, the Firearms Policy Coalition, Inc., and the Minnesota Gun Owners Caucus, through their members Kristin Worth, Austin Dye, Alex Anderson, and Joe Knudsen—challenge this age restriction for violating the Second and Fourteenth Amendments to the United States Constitution. The district court₂ granted summary judgment to the Plaintiffs, finding the Second Amendment’s plain text covered their conduct and that the Government did not meet its burden to demonstrate that restricting 18 to 20-year-olds’ right to bear handguns in public was consistent with this Nation’s historical tradition of firearm regulation. Minnesota appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Of special interest, the unanimous three-judge panel mentioned Justice Thomas’ concurrence in McDonald, which uses the privileges and immunities clause of the Fourteenth Amendment for incorporation of the Second Amendment.

The opinion cites the Rahimi decision eight times: on pages 5 (facial challenge), 10 (government burden), 16 (irresponsible people), 18 (historical tradition), 20 (twice) (credible threat), and 21 (twice) (not broadly restrictive, temporarily disarmed).  The Rahimi decision was cited to strike down the age restriction.

The opinion bolstered the Supreme Court’s guidance that the tradition of regulation around the founding era is far more important than any statutes or regulations passed long after the founding, particularly during and after Reconstruction. The “in common use” doctrine was followed and reinforced.

The case presents a conundrum for those who desire the American public to be disarmed. The three-judge panel was unanimous.

It is unlikely the three judges would change their opinion during an en banc rehearing of the case.  The Eighth Circuit is composed of eleven judges. Three of those judges were on the panel deciding the case. Of the remaining eight judges, only three more would be necessary to uphold the decision of the three-judge panel if an en banc rehearing is requested. The State of Minnesota could appeal to the Supreme Court, risking the affirmation of the decision nationwide. The third option is to do nothing and accept the ruling as applying to the entire Eighth Circuit, which includes North and South Dakota, Nebraska, Iowa, Missouri, and Arkansas, as well as Minnesota.

The Eighth Circuit opinion will probably result in a circuit split, which will give the Supreme Court another reason to take up a case involving the age issue.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.