The Volokh Conspiracy
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Second Amendment Roundup: 8th Circuit Rules for 18 to 20-Year-Olds
Court relies on Rahimi in support of liberalized gun carry permits.
Anyone hoping that the Supreme Court's Rahimi decision (which I analyzed here) would represent a roll-back in recognition of Second Amendment rights must be in for a surprise with the Eighth Circuit's decision in Worth v. Jacobson. Authored by Judge Duane Benton, the court affirmed the decision of the district court and held that Minnesota's limitation of gun carry permits to persons 21 years old and over violates the right to bear arms of persons aged 18-20.
This is the first decision by a circuit court of appeals, mind you, to rely on Rahimi, which was rendered on June 21. Several courts have put off action in Second Amendment cases while awaiting the decision in Rahimi. While Worth liberally relied on Heller and Bruen, the following focuses on the extent to which Rahimi is already a new sword in defense of Second Amendment rights.
Plaintiffs in the 18-20 age group along with firearm associations mounted a facial challenge to the Minnesota statute. The court first cited Rahimi for the proposition that such challengers must "establish that no set of circumstances exists under which the Act would be valid." That rule was the death knell for Mr. Rahimi's challenge to the federal law banning possession of firearms by a person subject to a court order finding him to be a credible threat to the physical safety of an intimate partner. But it would have no bearing in Worth. Here's why.
Minnesota argued that at the Founding, states restricted guns in the hands of "irresponsible or dangerous groups, such as 18 to 20-year-olds." (In reality, no state banned carrying guns by that age group.) Quoth Rahimi: "[W]e reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible.'" That concept is too vague and elusive.
A historical analogue that "remotely resembles" the carry ban, the court noted, will not suffice, then looked to Rahimi for the test: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit[.]" As Rahimi added: "Why and how the regulation burdens the right are central to this inquiry."
Minnesota failed to support its claim that 18 to 20-year-olds are a danger to the public. Contrast that with Rahimi, which repeatedly emphasized that the law at issue "applies only once a court has found that the defendant 'represents a credible threat to the physical safety' of another." The statistics applicable to the subject age group did not show that an 18-year-old, in Rahimi's words, "poses a clear threat of physical violence to another." Unlike the Minnesota law, the statute in Rahimi did "not broadly restrict arms use by the public generally."
Furthermore, the statute affected only those young people who were otherwise eligible to receive a permit to carry. They must complete "training in the safe use of a pistol" and not be "listed in the criminal gang investigative data system." The record lacked support for the claim that those individuals (quoting Rahimi) "pose [such] a credible threat to the physical safety of others" that their "Second Amendment right may … be burdened."
Worth echoed language from the Rahimi opinion: "An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Minnesota failed to make a showing of any such credible threat.
Minnesota also relied on the Eighth Circuit's 2023 decision in United States v. Jackson. That case cited historical restrictions on Catholics, Indians, slaves, and people who would not swear a loyalty oath in holding that no as-applied challenge could be made to the federal ban on felon firearm possession. But as Worth pointed out, the Supreme Court vacated and remanded that case for reconsideration in light of Rahimi.
The Supreme Court further expressed its interest in the felon issue by also vacating and remanding the Third Circuit's 2023 en banc decision in Range v. Garland, which recognized an as-applied challenge to the felon ban.
Judge Benton had joined in the Jackson opinion. Now, writing in Worth, he described how "many circuits—but not this court" had "coalesced around a 'two-step' framework" that included means-ends scrutiny, which was rejected by Bruen. Under Bruen, an activity or person covered by the literal text is presumptively covered by the Second Amendment.
Minnesota argued that the plaintiffs did not meet their alleged "burden" of proving they are covered by the text "because they did not submit expert reports or facts about the Second Amendment's text." No such requirement exists, as Rahimi made clear. Instead, as Worth observed, the plaintiffs are among "the people" based on the following:
Ordinary, law-abiding, adult citizens that are 18 to 20-year-olds are members of the people because: (1) they are members of the political community under Heller's "political community" definition; (2) the people has a fixed definition, though not fixed contents; (3) they are adults; and (4) the Second Amendment does not have a freestanding, extratextual dangerousness catchall.
Minnesota contended that, at the Founding, the "political community only extended to those over the age of 21, and to "eligible voters, namely white, male, yeomen farmers." The court found that argument to be "bordering on the frivolous." The 26th Amendment gave 18 to 20-year-olds the right to vote. They have all of the other freedoms under the Bill of Rights.
The federal Militia Act of 1792 required able-bodied white males aged 18-45 to provide arms for themselves and enroll in the militia. Curiously, Minnesota asserted that this was "inverse evidence" that males under 21 had no right under the common law to carry arms. Instead, the Worth court found the Act to be evidence of the codification of the right instead.
Minnesota argued that the increased prevalence of handguns in the second half of the 19th century presented "unprecedented social concerns" requiring the court to take a more "nuanced approach." The court flatly rejected this because Heller held that arms in "common use" today are protected and that handguns are in common use.
While the Fourteenth Amendment made the Second applicable to the states, the court followed Bruen's directive to prioritize Founding-era history. The Supreme Court has relied on the public understanding when the Bill of Rights was adopted in 1791, and it would be inconsistent to have different standard for the states and for the federal government. Worth thus found it "questionable whether the Reconstruction-era sources have much weight."
Moreover, the laws from the latter part of the nineteenth century cited by Minnesota generally did not impose an outright ban on persons under 21 from carrying firearms. Some only concerned concealed carry, while others related to sales and to discharge of firearms.
The issue of whether courts should give any weight to late nineteenth-century laws that have no parallel to or are inconsistent with those in 1791 has been brewing in the courts. The Second Circuit in Antonyuk v. Chiumento relied on such laws to uphold New York's ban on gun possession in many public places. Antonyuk is yet another case that the Supreme Court vacated and remanded for reconsideration in light of Rahimi.
Attorney General Garland must have hoped that by winning Rahimi, the tables would be turned and Supreme Court jurisprudence would support other gun restrictions. But Worth, the first post-Rahimi appellate horse out of the gate, proves that wish to be unsupported so far. Now Garland needs to start preparing how to defend 18 U.S.C. § 922(b)(1), which prohibits a licensed dealer from selling a handgun to a person in the 18-to-20 age group.
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Continuing our analysis on the impact of Rahimi from my last post, I'd like to call attention to Mark W. Smith, "Much Ado about Nothing: Rahimi Reinforces Bruen and Heller," JLPP Per Curiam, July 22, which concludes:
The Supreme Court's decision in Rahimi, while substantively routine, is momentous in a different sense: it is a harbinger of the doctrinal steadiness and reinforcement that, until very recently, the courts have uniquely denied the Second Amendment. Rahimi, then, is pathbreaking because it is pedestrian—a sign that the Second Amendment, long the "constitutional orphan" of the Court's jurisprudence, has been welcomed at last into the constitutional family as an equal member.
