K.G. v. Ellison, No. 24-001 (D. Minn. Aug. 9, 2024) (parody)

K.G., by and through his legal guardian, seeks a declaration that Minn. Stat. § 97B.021 violates the Second Amendment because it forbids him from carrying a firearm for self-defense. Applying the Eighth Circuit’s recent guidance in Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2024), the Court declares § 97B.021 invalid. 

I.  

K.G. is a precocious six-year-old who wishes to carry his .22 rifle with him while he rides his bicycle around town. But, under Minnesota law, he may only possess a firearm while “accompanied by a parent or guardian.” Minn. Stat. § 97B.021(1)(A). K.G.’s guardians do not want to accompany him at each moment he carries his firearm. Minnesota law makes clear, however, that “A parent or guardian may not knowingly direct, allow, or permit a person under the age of 16 to possess a firearm in violation of this section.” Minn. Stat. § 97B.021(1a) (emphasis added). Importantly, K.G. does not challenge the State’s sensitive-place laws that prohibit firearms in select locations throughout the state. But on those sidewalks, town squares, and other areas in which firearms are not banned, K.G. wishes to carry his rifle in case of confrontation, unencumbered by state-mandated parental supervision. 

K.G. instituted this suit seeking declaratory relief that § 97B.021 cannot validly be applied to him consistent with the Second Amendment. The State moved to dismiss the complaint, and K.G. cross-moved for judgment on the pleadings. Both parties agree no factual disputes preclude this Court’s consideration of the motions at this time.

II.

The Second Amendment provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court has made clear that self-defense stands at the “core” of the right. District of Columbia v. Heller, 554 U.S. 570, 630 (2008). A law that “makes it impossible for citizens to use [firearms] for the core lawful purpose of self-defense” is unconstitutional. Id.

In New York State Rifle & Pistol Association v. Bruen, the Court announced a two-part test for reviewing Second Amendment challenges: (1) “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct;” (2) to overcome that presumption, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” 597 U.S. 1, 11 (2022). All nine justices recently reaffirmed this test in United States v. Rahimi, 144 S. Ct. 1889 (2024). “As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Id. at 1898; id. at 1930 (Thomas, J., dissenting) (“A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation.”).

This Court does not write on a blank state. Since Rahimi, the Eighth Circuit has already addressed a similar age restriction in Minnesota’s permit-to-carry regime. Minn. Stat. § 624.714(1a). In Worth, the Court concluded that the law’s restriction to those 21 years old and over violated the Second Amendment rights of the 18 to 20-year-old group of challengers. 108 F.4th at 683. In this case, the Court must decide whether the Second Amendment’s plain text applies to K.G. and, if so, whether the State has met its burden of proving its regulation is consistent with historical tradition.[1] 

A.

At the plain-text prong, Worth rejected the State’s arguments that “ordinary, law-abiding, adult citizens that are 18 to 20-year-olds are not members of ‘the people.’” 108 F.4th at 688. Instead, it held that the plain text means looking to the Second Amendment’s ordinary meaning, and the ordinary meaning of “the people” is “A nation; these who compose a community.” Id. at 689 (quoting 1 Dictionary of the English Language (4th ed.) (reprinted 1978)). It cited Heller’s definition of “the people” as encompassing “all Americans” and all those who are members of the “political community.” Id. The Court rejected the State’s arguments that the common-law age of majority at the Founding controlled. “Arguments of this type, focusing on the original contents of a right instead of the original definition—i.e., that only those people considered to be in the political community in 1791 ‘are protected by the Second Amendment,’ instead of those meeting the original definition of being within the political community—are ‘bordering on the frivolous.’” Id. at 690 (quoting Heller, 554 U.S. at 582).

The State argues that Worth’s analysis is not controlling here because K.G. is only six years old and “the Worth Court did not contemplate that its ruling would be applied to young children.” State Br. at 6. That argument is belied by Worth’s own words. As the Court made abundantly clear, unlike other constitutional provisions that expressly delineate age limits, “the Second Amendment’s plain text does not have an age limit.” Id. at 692. The Fourth Circuit has said the same thing in confronting similar arguments:

[W]hile various parts of the Constitution include age requirements, the Second Amendment does not. The Founders set age requirements for Congress and the Presidency, but they did not limit any rights protected by the Bill of Rights to those of a certain age. See U.S. Const. art. I, § 2 (age 25 for the House); id. art. I, § 3 (age 30 for the Senate); id. art. II, § 1 (age 35 for the President); cf. id. amend. XXVI (setting voting age at 18). In other words, the Founders considered age and knew how to set age requirements but placed no such restrictions on rights, including those protected by the Second Amendment.

Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407, 421 (4th Cir.), as amended (July 15, 2021), vacated as moot, 14 F.4th 322 (4th Cir. 2021) (emphasis added). In other words, the Framers knew how to write age limits into the Constitution when they sought to limit the scope of a given provision. Their decision to leave the Second Amendment unbounded therefore speaks volumes.

True enough, Worth raised the fact that the 26th Amendment granted voting rights to those over 18 years old, but that was only to reject a restrictive argument that 18 to 20-year-olds are not part of the “political community”; the Court did not make that a dispositive criterion for inclusion. And, even if they currently lack a constitutional right to vote, “[t]hat children are treated as members of our political community ought to be obvious.” See Joshua Kleinfeld & Stephen E. Sachs, Give Parents the Vote, Notre Dame L. Rev. (forthcoming) (manuscript at 11), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4723276.  The Worth Court was clear: the ordinary meaning of “the people” presumptively includes “all Americans.” Worth, 108 F.4th at 689. K.G. is indisputably an American, and the State has not rebutted the “strong presumption,” id., that he is included with the Second Amendment’s plain text. 

Finally, the State leans on Heller’s language about “responsible, law-abiding citizens” to exclude K.G. from threshold coverage. See 554 U.S. at 634–35. That attempt is unavailing. Other than “sporadic time-outs” for what he describes as “non-criminal rule-breaking,” see Complaint at ¶16, there is no suggestion K.G. is not a law-abiding young man. Nor can the State rely on an argument that K.G. and first-graders like him are not “responsible.” Rahimi foreclosed this approach. “[W]e reject the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’” 144 S. Ct. at 1903.  “‘Responsible’ is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law.” Id. Plus, as Worth underscored, “At the step one ‘plain text’ analysis, a claim that a group is ‘irresponsible’ or ‘dangerous’ does not remove them from the definition of the people.” 108 F.4th at 692.

B. 

Because the Second Amendment presumptively protects K.G.’s right to carry a firearm for self-defense, the State bears the burden of proving § 97B.021 is consistent with historical tradition. That it cannot do. Once again, Worth points the way forward. The inquiry into history and tradition requires this Court to compare proffered analogues to the challenged law along two metrics: how the laws burden self-defense and why they do so. Worth, 108 F.4th at 692. At the threshold, Worth clarified that courts should “prioritize Founding-era history” when looking to historical regulations. Id.

As in Worth, “[t]he ‘how’ of the Carry Ban—the burden to be compared—is a ban on the bearing of arms in an otherwise constitutional manner.” Id. at 693. Similarly, the “why” is that the State believes young people in K.G.’s position “are not competent to make responsible decisions with guns and pose a risk of dangerousness to themselves and to others as a result.” Id.

Like it did in Worth, the State points to several sets of laws in its attempt to support banning K.G. from carrying his rifle in public: “(1) a freestanding catchall for groups the state deems dangerous; (2) founding-era and common law analogues; and (3) Reconstruction-era analogues.” Id. This Court is bound by Worth’s rejection of these analogues as appropriate comparators for Minnesota’s law. Just as none supported barring 18 to 20-years old from carrying in public, none support banning K.G.’s otherwise lawful carry. 

First, even if there is a free-standing dangerousness rationale—something the Worth Court left open—the State has here, like there, failed to come forward with “enough evidence,” id. at 694, that K.G. or individuals like him are excessively risky. Instead of adducing empirical support for its prohibition, the State falls back on platitudes. “It is beyond dispute that young children pose an extreme risk of danger with firearms.” State Br. at 22. The government’s mere say-so is not enough to justify its blanket ban. The State has introduced no statistics demonstrating that six year olds are any less capable of safely handling firearms than the older teenagers it allows to legally carry. The State in fact expressly permits unsupervised 14- and 15-year-olds to possess firearms so long as they procure “a firearms safety certificate.” § 97B.021(1)(b)(4). It has failed to demonstrate why such a certificate would not work in the case of mature youngsters like K.G., who asserts that he is “ready, able, and willing to obtain a safety certificate.” Complaint at ¶ 53; see Worth, 108 F.4th at 694 (“Minnesota has not attempted to explain why its other statutory restrictions, none of which the Plaintiffs have challenged, do not reduce the risk of danger already.”).

For generations, young children have had great responsibility foisted upon them. “It was common for American children to be familiar with firearms, a circumstance that gave the Americans confidence leading up to the Revolutionary War.” David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights of Young Adults, 43 S. Ill. U. L.J. 495, 530 (2019). Some states in the Founding era required enrollment of 16-year-olds in the militia, like New York and Massachusetts. See United States v. Miller, 307 U.S. 174, 180–81 (1939) (quoting these states’ militia laws). If these teenagers were required to carry firearms to fight on behalf of their communities, it stands to reason that they were familiar with firearms from an even younger age. See Amicus Curiae Brief of Second Amendment Foundation et al., New York State Rifle & Pistol Association v. Bruen, No. 20-843, at 14 (discussing how John Adams used to bring his firearm along with him while a schoolboy).  Indeed, restrictions on minor gun access are a modern invention. As one scholar notes, “state legislatures in the United States did not actually impose some of these restrictions—the prohibition on firearms purchases by minors, for example—until the late nineteenth century.” Carolyn B. Ramsey, Firearms in the Family, 78 Ohio St. L.J. 1257, 1343 n.124 (2017); see also Kopel & Greenlee, supra at 530-32 (compiling evidence of young children’s familiarity with firearms in the early United States).

Second, the Founding-era and common law sources fare no better. They are all too late or too disanalogous to support the blanket prohibition in § 97B.021.  The common-law age of majority, as this opinion has already explained, does not govern. Campus firearm prohibitions, another example the State points to, applied in a completely different setting. They applied only to a subset of the minor population—those who voluntarily enrolled in university—and extended no further than campus, or campus jurisdiction. These restrictions were also localized to a “sensitive place.” And K.G. has not challenged restrictions forbidding guns on school grounds. See Worth, 108 F.4th at 696 (“A sensitive place restriction is not analogous to a no-guns-in-public restriction.”). And, as Worth underscored, “Universities had many practices that if compelled by the government, would have violated students’ constitutional rights.” Id. at 695. The other smattering of ordinances the State introduces are, as in Worth, no match for the challenged law. 

Third, Worth rejected the relevance and analogousness of Reconstruction-era statutes, the first time period in which states began passing laws that restricted—albeit less categorically—gun access for minors. “Assuming it has any weight,” Worth concluded, the evidence from that era could not sustain a complete age-bracketed prohibition. Id. at 696. Worth well documented the numerous aspects of the plethora of laws the State relies on that sets them apart from the blanket ban at issue in this case:

• "[S]everal prohibited only concealed carry,"
• "Others prohibited only the kinds of weapons that could be easily concealed, like bowie knives and pistols,"
• "Many, including some already mentioned, criminalized the sale or furnishing of weapons to minors, meaning they could publicly bear arms subject to generally applicable concealed-carry rules,"
• "Several included exceptions for parental permission or self-defense,"
• "And others prohibited the sale of only easily concealable weapons."

Id. at 696-98. As Bruen put it with respect to the limited analogues put forward there, “the history reveals a consensus that States could not ban public carry altogether,” Bruen, 597 U.S. at 53, and this holds true for those under an arbitrary age limit set by the contemporary Minnesota legislature.

Worth recognized one on-point regulation—an 1875 statute from Indiana that prohibited giving minors concealable weapons—but held that such a solitary precursor “is not sufficient to demonstrate that the Carry Ban is within this nation’s historical tradition of firearm regulation.” Id. at 698. The State has even less to stand on in this case. The rifle K.G. wishes to carry is not concealable, and the historical record does not support restrictions on minors carrying long guns, especially with permission from their parents or guardians. Cf. C. Kevin Marshall, Why Can’t Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 701 (2009) (discussing increasing 20th century firearms regulation that nonetheless “remain[ed] faithful to the rule in America of only regulating firearms which may be concealed on the person” (cleaned up)).

It may be wise to limit the ability of six-year-olds to handle firearms, but that is not the question before this Court. The sole question before the Court is whether, consistent with the Second Amendment, the State may completely ban the ability of K.G. to carry his rifle around town. Because the State has failed to prove such restrictions are consistent with the nation’s historical tradition of firearms regulation, the law must be struck down. 

For the foregoing reasons, the State’s motion to dismiss is DENIED and K.G.’s motion for judgement on the pleadings is GRANTED.

Pierre O. Dee           

District Judge

[This post is obviously satirical, but the aim is to underscore a broader point about the unworkability of the approach taken by the panel in Worth. The panel’s opinion leaves open just the sort of possibility envisioned in this blog post, even if it is exceedingly unlikely a court would actually vindicate the kindergarten’s gun rights. The legal principle the court applies seems to make this opinion plausible, which is exactly the problem. And Bruen’s test itself provides a vast amount of discretion for judges to simply declare that some historical regulations are or are not analogous, based on not much more than an intuition of similarity. See, e.g., Rahimi.]