Attorney General Keith Ellison is right to appeal gun ruling

Opinion editor's note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

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It is beyond frustrating, as the nation recovers from yet another mass shooting, to have a federal judge strike down a state statute that has served Minnesota well for 20 years — namely, the sensible restriction that limited handgun carry permits to those 21 years of age and older.

The law, it should be noted, was not a blanket prohibition. No permit is required to have a handgun at home or work or when traveling between those locations. Neither is a permit needed for hunting or target shooting.

But that wasn't enough for the young adults who brought the lawsuit, heavily bolstered by the Minnesota Gun Owners Caucus, the Second Amendment Foundation and the Firearms Policy Coalition. In 2021 they filed a lawsuit against state and local law enforcement officials over the restrictions.

Now U.S. District Court Judge Katherine Menendez, an appointee of President Joe Biden, has found the law a violation of the Second Amendment. But in her 50-page order, Menendez expressed what appeared to be strong reservations about the precedent underlying her conclusion.

She said she was driven by an earlier U.S. Supreme Court ruling last June called New York State Rifle & Pistol Association v. Bruen, which struck down a New York state law on gun permit restrictions and set a new standard for lower courts in future gun cases. Justice Clarence Thomas, who wrote the opinion in that case, said that going forward, the government must prove that any firearm law being challenged was consistent with historical traditions of firearm regulation.

In her ruling, Menendez wrote that the "historical traditions" standard laid out in Bruen shows that "Second Amendment jurisprudence now focuses a lens entirely on choices made in a very different time, by a very different American people." The New York opinion, she wrote, "makes clear that today's policy considerations play no role in an analytical framework that begins and ends more than two hundred years ago."

Eric Janus, former president of William Mitchell College of Law and a constitutional law expert, told an editorial writer that the Bruen decision is a predictable bad outcome of "the original bad decision made in District of Columbia v. Heller." That was the 2008 Supreme Court ruling that found an individual right to bear firearms. "That's where this notion [arose] that the only regulation allowed is what would have been allowed in 1793 or so," Janus said. That idea, he said, was a departure from the then-prevailing legal thinking that a constitution should be a general framework. "It needs to be adjustable to the times," Janus said.

Justice John Paul Stevens, who wrote the primary dissent in Heller, said the ruling was "unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench." He would go on to challenge it until his death at age 99.

And yet, even the Heller ruling's author, Justice Antonin Scalia, was careful to note in its text that "the right secured by the Second Amendment is not unlimited. … [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." He even specified several types of restrictions that he would consider to pass muster. There is no doubt, he wrote, about "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ... ."

One must wonder whether even those few restrictions would hold up under this new and appalling standard.

The idea that a state is so helpless that it cannot even restrict teenagers from owning deadly weaponry is farcical. Eighteen-year-olds must wait until they turn 21 to legally buy a drink or purchase a pack of cigarettes. You can't even rent a car in Minnesota until you turn 21. But handguns? Apparently that is no longer a problem.

Minnesota Attorney General Keith Ellison told an editorial writer that he will soon file an appeal to the Menendez decision, a necessary course that he is right to pursue. Minnesotans should not easily relinquish the ability to develop the policies under which they choose to live, nor remain firmly tied to how things were done 200 years ago.

"We obviously will appeal," Ellison said, "because we think there are a lot of reasons why the court didn't get it right. For one thing, historically, 21 was the age of majority. But more importantly, the philosophy of being shackled to the past is ridiculous." Striking age restrictions "is a remarkable decision when you look at mass shootings happening at the rate of one every one or two days. I'm not saying that is the court's fault. They have a pretty crappy decision they had to go by. Before that was another bad decision called Heller. It is just downright irresponsible to say the government is prohibited from regulating firearms."

The ruling also comes at a sensitive juncture in the legislative session. A series of gun laws that include firearms storage, expanded background checks and red flag laws used to restrict gun ownership by those a court has found may be a danger to themselves or others has already passed the House. The bills now await a vote in the Senate, where DFLers control by a single-vote majority. If they pass, Walz has already said he would sign them. These proposed laws have been years in the making.

A majority of Minnesotans support such common-sense restrictions. It would be a travesty to have them pass only to be struck down through a mandated standard obsessed with the past, when the firearms to be regulated were muskets, not AR-15s.