NRA-ILA | Appeals Court: 21+ Age Requirement for Carry Permits is Unconstitutional

In another Bruen-based invalidation of a gun law, a federal appeals court has struck a Minnesota law that prohibits 18 to 20-year-olds from being eligible for a carry permit, declaring the law to be invalid and enjoining its enforcement. NRA-ILA, which has advocated on behalf of the rights of young adults for decades, had filed an amicus brief supporting the challenge to the carry ban.

The ruling comes at a time when calls to restrict the firearm rights of young adults are likely to become even more acute. President Joe Biden has already used the unsuccessful assassination attempt on former President Donald Trump to again demand an “assault weapon” ban, and has stated that, “[i]f we can’t ban assault weapons, as we should, we must at least raise the age to be able to purchase one to 21.”

Gun control groups are enthusiastic supporters of such bans. In the Minnesota case, for instance, an amicus brief filed by gun control advocates Giffords Law Center, Brady Center, and March for Our Lives Foundation argued that age-based prohibitions are justified under the Bruen framework because young adults, as a class pose a “particular danger” with respect to access to firearms (akin to those suffering from severe mental illness and convicted felons), and that prohibiting individuals who may pose a heightened risk to the public is consistent with the “historical understanding” of the Second Amendment. The groups urged the appellate court to “consider the modern-day” justifications for such bans, including “research confirming that, similar to groups who were restricted from accessing firearms during the Founding era, 18-to-20-year-olds with unencumbered access to firearms pose a substantial risk to themselves and others.”

The court, however, was unmoved.

The case concerned Minnesota’s permit-to-carry statute, Minn. Stat. Ann. § 624.714(2)(b)(2), which requires applicants to be at least 21 years old. The original version of the statute, enacted in 1975, had a minimum age of 18 to be eligible for a permit, but this was amended in 2003 to raise the minimum age to 21. The 2003 legislation included a statement that the Minnesota legislature “recognizes and declares that the second amendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms. The provisions of this section are declared to be necessary to accomplish compelling state interests in regulation of those rights.”

Carrying a handgun in public without a permit is a gross misdemeanor in the state, and a conviction for a second or subsequent offense is a felony. Several members of the Minnesota Gun Owners Caucus, aged over 18 but under 21 and otherwise eligible to receive a permit, along with three gun-rights advocacy groups, sued Minnesota, arguing that the age restriction, facially and as applied, violated the Second and Fourteenth Amendments to the U.S. Constitution.

In a summary judgment application last year, a federal district court granted the motion, finding the age restriction was facially unconstitutional in light of the U.S. Supreme Court’s ruling in NYSRPA v. Bruen. (Unlike an as-applied challenge, which requires courts to examine a law based on the plaintiff’s individual circumstances, the higher stakes of a facial challenge require establishing that the law at issue is unconstitutional in all its applications, regardless of individual circumstances.) The court held that young adults aged 18 to 20 were among “the people” covered by the Second Amendment, and that the defendants failed to establish that the law was consistent with the nation’s Founding-era history of firearm regulation.

On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed, in a unanimous decision issued on July 16. In a straightforward application of Bruen, it concluded that young adults are “the people,” and no relevant history or tradition supported an age-based ban on their carrying of firearms.

The government, as did the gun control groups filing briefs in support of the ban, argued that at the time of the founding, 18 to 20-year-olds were underage individuals who fell outside of the “political community” and so could not, today, be considered members of “the people” covered by the Second Amendment. Since the founding, they claimed, states have had the power to regulate guns in the hands of irresponsible, untrustworthy, or dangerous groups.

The NRA amicus brief noted the flaw in this approach:

Minnesota is trying to have its cake and eat it, too. It argues that “the people” is fixed to its historical meaning, but the classes of people who can be deprived of their rights change based on the whim of the present-day legislative branch: “Legislatures may fill in the details [of who is categorically unprotected by the Second Amendment] ‘based on present-day judgments about categories of people whose possession of guns would endanger the public safety.”

The court explained that District of Columbia v. Heller created a “strong presumption” that the right to keep and bear arms applies to “all Americans.” The “Second Amendment’s plain text does not have an age limit,” and it extends to all members of the political community, even those who were not included originally at the time of the founding (noting that the Twenty-Sixth Amendment now sets the age of majority for political rights at age 18). Ordinary, law-abiding 18 to 20-year-olds are included as “the people” because they are adults, members of the “political community,” and because “the Second Amendment does not have a freestanding, extratextual dangerousness catchall.” Moreover, at the initial stage of Bruen analysis, a “claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.”

Under Bruen’s historical analysis requirement, Minnesota had the burden of providing a “well-established and representative historical analogue” of its carry ban, both as to the “how” (the comparable burden it imposed) and its “why” (the comparable justification).

As to the “why,” the government argued that young adults were “not competent to make responsible decisions with guns and pose a risk of dangerousness to themselves and to others,” and that “status-based restrictions from the founding-era created a freestanding dangerousness catchall analogue” (that is, the state could legitimately impose a firearm ban on any group it deemed to be dangerous).

Even assuming this was correct, Minnesota failed to support its claim with evidence that confirmed 18 to 20-year-olds presented a danger to the public. The statistics it relied on covered a period more than ten years after the 2003 law was passed, making it implausible that this information motivated the legislature in raising the age of permit eligibility. The State failed to explain, also, why its other statutory restrictions – including those related to permits, like training and background checks – didn’t sufficiently reduce the risk of danger. Most importantly, though, the court rejected this “freestanding dangerousness” rationale because a “legislature’s ability to deem a category of people dangerous based only on belief would subjugate the right to bear arms ‘in public for self-defense’ to “a second-class right.”

Minnesota’s proffered founding-era analogues likewise missed the mark, all of which were “very different in their ‘how.’” College rules restricting students from possessing guns on campus were internal school rules, not laws subject to constitutional limitations, and municipal ordinances banning discharges regardless of age, or sales of gunpowder (but not guns) to minors, were far from adequate comparables. The government’s reliance on the Militia Act of 1792 (requiring 18 to 20-year-olds to acquire firearms) was the most strategically puzzling, as a “mandate to acquire a firearm is hardly ‘evidence’ that one was previously prohibited from owning one.” Reconstruction-era laws carried much less weight, and were, in any event, distinguishable as inapposite. In summary, “Minnesota did not proffer an analogue that meets the ‘how’ and ‘why’ of the Carry Ban for 18 to 20-year-old Minnesotans,” and the law was, accordingly, unconstitutional.

The decision is Worth v. Jacobson, No. 23-2248, 2024 WL 3419668 (8th Cir. July 16, 2024).

The NRA is currently litigating its own challenge to a Florida statute banning sales and transfers of firearms to young adults, and an appeal in that case, National Rifle Association v. Bondi, is pending before the entire Eleventh Circuit Court of Appeals. We will be updating members on the progress of this and other litigation as developments occur.