Eighth Circuit Court of Appeals: Carry Bans for Under-21s Violate the Second Amendment

Minnesota’s ban on concealed carry for adults younger than 21 violates the Second Amendment, according to a three-judge panel on the Eighth Circuit Court of Appeals, which upheld a district court decision that found the state’s statute unconstitutional.

On Tuesday, the Eighth Circuit affirmed the lower court decision, giving the Second Amendment Foundation, Firearms Policy Coalition, MN Gun Owners Caucus, and several individual plaintiffs a huge victory… as well as teeing up a potential appeal to the Supreme Court by Minnesota Attorney General and longtime anti-2A advocate Keith Ellison.

The opinion, authored by Eighth Circuit Judge Duane Benton, is relatively brief and mercifully short of legalese. First, the panel weighed in on standing, and rightfully allowed the litigation to proceed even though the original plaintiffs have now reached the age where they can apply for a carry license. Plaintiffs aging out is a real problem when challenging restrictions on young adults, but the 2A groups found a 19-year-old to serve as an additional plaintiff in Worth v. Jacobson, and the panel ruled that the “organizational plaintiffs have an unbroken chain of standing” thanks to the addition.

With standing resolved, Duane and the other two members of the panel then turned to the question at hand; whether Minnesota’s prohibition on concealed carry for adults younger than 21 passes constitutional muster. The panel dismissed the claims by the state that young adults aren’t part of “the People”, nor do they possess the full flower of their individual rights until they turn 21. As Benton pointed out, “Reading the Second Amendment in the context of the Twenty-Sixth Amendment unambiguously places 18 to 20-year-olds within the national political community.” And if they’re a part of the national political community, then they possess the right to keep and bear arms.

Unless, of course, Minnesota could demonstrate a national tradition that prohibited some adults from exercising their Second Amendment rights based solely on their age. The state pointed to various ordinances and regulations, including 18th and 19th century prohibitions on college students keeping guns on campus, but the court found all that none of them were a close enough analogue to pass muster.

 Minnesota did not proffer an analogue that meets the “how” and “why” of the Carry Ban for 18 to 20-year-old Minnesotans. The only proffered evidence that was both not entirely based on one’s status as a minor and not entirely removed from burdening carry—Indiana’s 1875 statute—is not sufficient to demonstrate that the Carry Ban is within this nation’s historical tradition of firearm regulation. See Bruen, 597 U.S. at 65 (a “single” “postbellum” “state statute” is insufficient weight to meet the state’s burden).

Minnesota has not met its burden to proffer sufficient evidence to rebut the presumption that 18 to 20-year-olds seeking to carry handguns in public for self defense are protected by the right to keep and bear arms. The Carry Ban, § 624.714subd. 2(b)(2), violates the Second Amendment as applied to Minnesota through the Fourteenth Amendment, and, thus, is unconstitutional.

This is the first Second Amendment case to be decided since the Supreme Court used two fairly dissimilar 18th century statutes to uphold the modern prohibition on gun possession for those subject to a domestic violence restraining order in Rahimi, and it’s good to see that the Eighth Circuit didn’t try to abuse the Court’s narrow decision to uphold the state’s carry ban by citing statutes that barred minors from possessing guns or other historical laws with a tenuous connection at best to the law the plaintiffs challenged.

FPC President Brandon Combs hailed the decision, saying it “confirms that age-based firearm bans are flatly unconstitutional. All peaceable people have a natural right to carry firearms in public, and adults under the age of 21 are no exception,” while Second Amendment Foundation Executive Vice President and founder Alan Gottlieb called the ruling “a significant victory for the rights of young adults.”

Now the ball is is AG Ellison’s court. Will he seek an en banc review of the panel’s decision… and would the Eighth Circuit even grant his request given that both the trial court and the appellate panel are in agreement? Unless Ellison is willing to take the loss, his choices are limited to asking the Eighth Circuit for a do-over with the entire appellate court weighing in, or taking his appeal directly to the Supreme Court. He has a tough decision to make, because now that the Eighth Circuit panel has issued its ruling, it won’t be long before the state is formally enjoined from prohibiting young adults from applying for and receiving their concealed carry license.