On March 31, U.S. District Court Judge Katherine Menendez issued a decision in Worth v. Harrington finding portions of a Minnesota statute unconstitutional and enjoining the state from enforcing the statute in the future. The provision struck down in Worth is a part of the state’s permit-to-carry statute. In Minnesota, a permit is required to lawfully carry a handgun in public. Permits will be issued to any citizen who submits an application and satisfies certain criteria listed in the challenged statute. Requirements for receiving a permit include, among others, that the applicant be 21 years or older and complete a training course in the safe use of a pistol.
The Plaintiffs in Worth included gun rights advocacy organizations as well as individual members of those organizations who were between the ages of 18 and 21 years old. Plaintiffs challenged the age provision in the statute, arguing that the state’s exclusion of 18-to-20-year-olds from public carry acted as an unconstitutional restriction on Second Amendment rights. The District Court ultimately agreed, granting summary judgment in the Plaintiffs’ favor following an analysis of the statute under the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen.
The Court’s analysis was separated into a two-step inquiry, beginning with a textual analysis focused on the “normal and ordinary” meaning of the Second Amendment’s language to determine whether the Second Amendment protects the “individual’s proposed course of conduct.” Using the Supreme Court’s interpretation of the Second Amendment in Heller as a guidepost, Judge Menendez began by considering whether the Plaintiffs’ “proposed course of conduct” was covered by the plain text of the Second Amendment. Bruen made clear that “carrying handguns publicly for self-defense” is conduct protected by the Second Amendment. Therefore, the inquiry primarily focused on whether the Plaintiffs (individuals under the age of 21) are part of “the people” referenced in the text of the Second Amendment.
Ultimately, Worth concluded that “the Second Amendment’s plain text is better read to include adults 18 and older in its protections.” Judge Menendez cited Heller as supporting a “strong presumption that the Second Amendment is exercised individually and belongs to all Americans.” Menendez also found the Second Amendment’s silence on the subject of age convincing, referencing the Founders’ choice to place age requirements elsewhere in the Constitution—such as in the qualifying criteria for serving as a Senator, House Member, or President. Additionally, the Court found that the phrase “the people” had not otherwise been interpreted in the past to exclude 18-to-20-year-olds in the context of the First and Fourth Amendments.
Worth also explored Founding-era militia laws for assistance interpreting the scope of the Second Amendment. Judge Menendez referenced militia laws during this era that oftentimes set the minimum age of enlistment at 16. She also observed that “every colony at some point” passed a law identifying 18-year-olds as individuals “required to possess arms” for purposes of militia service. While some historical laws increased the age requirement for militia service to 21 during the colonial era, Judge Menendez found that laws using this higher age cutoff were a minority and that, in general, militia-related firearms requirements supported including 18–20-year-olds within “the people” protected by the Second Amendment.
After concluding that 18-to-20-year-olds are covered by the ordinary meaning of the Amendment’s text, the District Court moved to the second step of the Bruen analysis. Judge Menendez reiterated Bruen‘s command that, if a course of conduct falls under the Second Amendment’s protections, any restriction of such conduct must be justified by showing that the challenged law is consistent with America’s historical tradition of firearm regulation.
The District Court determined that the state failed to identify analogous regulations showing a historical tradition of depriving 18-to-20-year-olds of the right to publicly carry firearms for self-defense. The opinion focused on laws in place during or shortly after the Second Amendment was ratified in 1791. While other courts, such as the 11th Circuit in a recent decision, have relied primarily on laws from the Reconstruction era—when the Fourteenth Amendment, which would ultimately apply the federal Second Amendment against the states, was ratified—Worth rejected this approach. The 11th Circuit’s decision in Bondi highlighted the importance of focusing on the meaning of the Second Amendment as it would have been understood by those who ratified the Fourteenth Amendment in 1868. Worth found that, although Bruen recognized a role for Reconstruction-era laws when consistent with earlier history, the Supreme Court also cautioned against giving post-Founding laws more weight than they could bear. Therefore, Worth rejected the state’s argument that laws from around 1868 should be the primary focus when applying Bruen. Judge Menendez did stress that, even if she had chosen to rely more heavily on Reconstruction-era laws, the result in Worth would have been the same in her view.
Defendants offered several examples of potential historical analogues for modern age restrictions on the public carry of firearms. These included policies in place on college campuses in the early 1800s that prohibited students from owning weapons (including firearms), municipal ordinances that required a parent to pay fines for their minor child should the child illegally discharge a firearm in public, and Fourteenth Amendment era laws prohibiting the sale of firearms to minors—including some laws that identified minors as those under the age of 21.
Judge Menendez addressed each class of regulation in turn, ultimately finding that none of the laws relied upon by the state was an appropriate historical analogue for the Minnesota statute. In comparing historical and modern laws, the judge focused on how and why each regulation restricted Second Amendment rights. The opinion stressed that, in the case of early-1800s campus restrictions, these policies were not enacted by legislatures and applied only to a small subset of society at the time they were in effect (namely, students). Additionally, these policies would also have prevented students over the age of 21 from possessing firearms.
Worth similarly found municipal ordinances requiring parents to pay fines for their minor children unconvincing because those laws burdened the right to bear arms for different reasons and in different ways than Minnesota’s age minimum. These municipal ordinances, the judge found, were intended to address the danger posed by discharging firearms in public, not the danger of allowing younger citizens to carry firearms in general. The district court also determined that these laws did not prohibit 18-to-20-year-olds from carrying firearms publicly; rather, they simply recognized that a minor might be unable to independently pay the fine imposed for unlawful public discharge.
As for Reconstruction-era age restrictions, the opinion stressed that these were entitled to less weight due to their distance in time from the Founding. The district court also called attention to the fact that these laws were not relevantly similar because some of them restricted only the sale of firearms to minors but permitted minors to receive guns from their parents or employers. Additionally, the judge found that certain laws from this period restricted possession only by those under the age of 16, not 21.
Once Judge Menendez completed her analysis, she concluded that the Minnesota age restriction was unconstitutional under Bruen. Before concluding, Judge Menendez observed that she likely would have ruled differently had she been able to weigh the modern legislative justifications for the Minnesota age restriction. She also commented that, “given the dearth of firearms regulations” from the relevant time period under Bruen, application of Bruen “seems likely to lead, generally, to more guns in the hands of more people, not just young adults.”
I find the district court’s choice to comment on the restrictive nature of the Bruen analysis particularly interesting. It seems to indicate that, after Bruen, at least some judges feel their hands have been tied by the historical analysis now required in Second Amendment cases. The practical effect of Bruen’s test is that judges are unable to consider state interests in promoting public safety or empirical data about the present-day effectiveness of state gun regulations.
After reading decisions like Worth, I am left wondering about the potential inconsistencies between cases decided soon after Bruen and those decided in the future. The historical nature of Bruen’s test requires judges to analyze historical analogues provided to them by the parties in each individual case. Is it possible that there are historical statutes or regulations from the Founding era that have yet to be discovered by modern legal scholars? What is the outcome if these statutes exist and happen to be discovered after a law has already been struck down as unconstitutional?
Worth also serves to highlight the continued disagreement and confusion over how much weight, if any, should be given to Reconstruction-era laws. Bruen did not clearly answer this question, and the difference between the opinion in Worth and the 11th Circuit’s decision in Bondi may be evidence of an impending Circuit split (should Worth be upheld by the Eighth Circuit). The legal landscape may benefit from the Supreme Court taking another Second Amendment case soon to provide clarity on these outstanding questions—and it’s possible the Court may take one as soon as this summer, if the petition for certiorari in Rahimi is granted. In a future case, the Supreme Court would have the chance to clear up ambiguities—like the relevance of Reconstruction-era laws—lurking within Bruen’s test.
Following the decision in Worth, the Defendants moved to stay the injunction of the age restriction pending appeal to the Eighth Circuit. On April 24, Judge Menendez granted the stay for a period of 30 days or, if Defendants file an appeal, until the appellate process is concluded. The order to stay reflected an understanding that the Eighth Circuit could overrule her decision, as the judge noted that the law is “far from settled” and the questions presented in the case are “open to differing conclusions.” The judge also noted that the “significance of the issues presented and the rapid development of this area of law” favored granting the Defendant’s motion for a stay. Judge Menendez then considered the practical difficulties that could occur in permitting enforcement if she declined to stay the injunction. If Minnesota granted firearm permits to 18-to-20-year-olds during an appeal, the legal status of any such permits would be unclear should the Eighth Circuit reverse the decision in Worth. While Judge Menendez found that the continued deprivation of the Plaintiffs’ constitutional rights did favor denial of a stay, she concluded that the other factors outweighed this consideration and granted the Defendants’ motion.
I personally found the District Court’s justification for issuing a stay to be convincing, and wise, under the circumstances. Although Judge Menendez conducted a thorough analysis using the Bruen framework in Worth, the consequences of an Eighth Circuit reversal following the denial of a stay could create difficult administrative problems for the state’s firearm permitting system. Issues with the validity of permits issued to 18-to-20-year-olds in the interim could create additional legal challenges at the expense of judicial time and resources. The Eighth Circuit has also yet to decide a case using Bruen’s historical-analogue test, so it is particularly unclear how the appellate court will choose to approach the analysis, and what evidence it will find convincing. In sum, Judge Menendez’s stay order and its justification again show a recognition that analyzing Second Amendment challenges post-Bruen is not a simple endeavor and that different jurists can reasonably disagree over the outcome in a particular case.