Photo: Thomas Def, Unsplash.com
Appellant had asked Supreme Court for near-unfettered right to carry guns in public
His lawyer’s near-absolutist arguments notwithstanding, a Coon Rapids man’s conviction for transporting an unlicensed pistol near the Twin Cities’ primary airport will stand, because the state’s permit-to-carry statute is constitutional.
That’s true, the court found, even applying strict scrutiny—the highest judicial burden of persuasion.
The ruling means the gross misdemeanor conviction of Nathan Ernest Hatch, 29, remains on the books. That affirms both the Minnesota Court of Appeals and the Hennepin County District Court.
Lynne Torgerson, Hatch’s attorney, told Associated Press on Wednesday that she plans to petition the U.S. Supreme Court for a writ of certiorari and further review.
Hatch, a former Marine, was busted by airport police on Jan. 8, 2018, after his truck broke down on Highway 5 near the Minneapolis-Saint Paul International Airport. The area is within the legal jurisdiction of the Metropolitan Airports Commission (MAC).
According to the 2018 incident report, airport officers stopped to offer Hatch assistance. As they approached him, Hatch threw his hands up, later explaining he did that “because of the way things have been going lately.”
He told officers he had knives in his pockets and possibly a gun in the truck. Officers retrieved the knives, then found the firearm—a 5.7×28mm small-caliber pistol—in a camouflage backpack. They also found three magazines with 60 rounds of ammunition.
When a check showed Hatch had no permit to carry an unsecured firearm in his vehicle, he was placed under arrest and charged with violating the permit-to-carry statute.
According to the police statement of probable cause:
“During his post-Miranda interview, the defendant admitted to officers that the handgun was his and that he carries it with him, but that he leaves it in his truck. The defendant stated that because of his life experiences he feels that he should always be armed.”
To keep and bear
Before his 2019 bench trial, Torgerson filed a pretrial motion to strike down the state’s permit-to-carry statute, arguing it violates the Second Amendment. According to her motion:
“[T]he Second Amendment right to keep and bear (“bear” means “carry”) is a fundamental right, that any infringement thereon is subject to strict scrutiny … and because the statute can be drawn more narrowly, it fails the strict scrutiny test and must be struck down.”
District Court Judge Susan M. Robiner denied the motion. Hatch was later convicted and sentenced to 180 days in the workhouse, stayed for two years.
He took his case to the Court of Appeals where he again argued for the statute to be struck down under both the Second Amendment and the U.S. Supreme Court’s 2008 District of Columbia v. Heller ruling. The law cannot survive strict scrutiny, Torgerson argued, because it is not narrowly tailored to serve a “compelling government interest.”
For instance, she argued, rather than imposing criminal penalties, the statute could be further narrowed to assess only civil penalties.
But the three-judge appellate panel saw the issue no differently than had Robiner. On Nov. 2, 2020, the Court of Appeals issued a non-precedential opinion. Citing Justice Antonin Scalia’s Heller opinion, it found that “like most rights, the right secured by the Second Amendment is not unlimited.”
Heller, the Court of Appeals noted, acknowledged “the problem of handgun violence in this country,” and confirmed that the constitution leaves “a variety of tools for combatting the problem.”
The panel left open the question of which review standard is the correct one. Torgerson argued for strict scrutiny, while Christopher P. Renz, attorney for the Metropolitan Airports Commission, argued for intermediate scrutiny. Under that lowered standard, a statute survives when it is “substantially related to an important governmental objective.”
While it did not pin down a preferred standard, the Court of Appeals found that even when examined at the heightened level of scrutiny, the statute survives. It is not just narrowly tailored, the court found, it all but mandates that permits be issued to anyone qualified to possess a gun.
The law says local sheriffs “must issue a permit” to anyone who has taken gun-safety training, is at least 21 years old and a U.S. citizen or permanent resident and is not otherwise prohibited or listed on a gang database. Sheriffs have some discretion, but only to refuse a permit when someone is a danger to self of others.
Judge Denise Reilly, writing for the unanimous Court of Appeals, said:
“We conclude that Minnesota’s permit-to-carry statute survives strict constitutional scrutiny, because the state has a compelling interest in regulating an individual’s ability to carry a firearm in public, the statute is narrowly tailored to achieve that end and there is a statutory presumption in favor of granting a permit.”
‘Pure Second Amendment behavior’
During May 11 Supreme Court oral arguments, Torgerson again argued that Second Amendment rights are fundamental and subject to strict scrutiny.
The primary gist of Hatch’s appeal, she told the court, is that the statute severely criminalizes what she called “pure Second Amendment behavior”—which she said includes carrying a pistol in public without a license.
She pointed out that 15 U.S. states require no permits to carry to carry in public. “So a permit-to-carry statute is not necessary or compelling,” she said.
When it comes to firearms, there is “no variation” under the Second Amendment on the right to “keep”—or possess—and “bear”—carry guns in public. Therefore, the statute can’t survive strict scrutiny and must be thrown out, she argued.
“We have a right to possess firearms and carry them around,” she said. “The right to carry in public is no less important in public than in the home. There is no U.S. Supreme Court case that so distinguishes.”
Indeed, she added, there should be greater Second Amendment protections out in the public sphere, because “there’s a greater risk of danger in public than in your locked home.”
She argued that Scalia, in Heller, established three reasons for the Second Amendment’s existence:
- Americans have a right to self-defense and defense of family property.
- Citizens have a right to be “armed on the ground, with the ability to aid the military in the event of an attack on the mainland of the United States,” Torgerson said. That “certainly involves activity outside a person’s home,” she argued.
- The amendment provides citizens an “ability to defend themselves against governmental tyranny as well as to deter against governmental tyranny.” That, too, include activities outside the home, she said.
Still, if a broad and unrestricted right to carry guns in public is what Scalia was driving at in Heller, he kept his intentions well-camouflaged. As Renz pointed out to justices, Heller was a clash over a Washington, D.C., resident’s right to register his handgun and license it to carry inside his home. Quoting Scalia’s closing remarks in Heller:
“Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”
“In other words,” Renz said, “the Supreme Court case that we do have recognizes licensing as something that is allowed.”
Under questioning from Justice G. Barry Anderson, Torgerson acknowledged that no other state or federal U.S. courts have ruled the way she asked Minnesota’s Supreme Court to rule, and that she sought a “leading-edge decision.”
She didn’t get one. In Wednesday’s ruling, authored by Associate Justice Natalie Hudson, the court sided with Renz—mostly. While it did not decide which standard is the correct one for deciding such cases in general, it applied strict—not intermediate—scrutiny to Hatch’s case, just as Torgerson requested.
But that did not produce the results she wanted. Siding with the MAC, the court found the law’s “minimally burdensome requirements” are sufficiently close to government’s public-safety protection interests that it satisfies the heightened standard’s narrow-tailoring requirements.
“Considering the undisputed, compelling governmental interest in ensuring public safety and the narrowly tailored provisions of the statute to achieve that interest, we conclude that the permit-to-carry statute withstands strict scrutiny. We therefore hold that the permit-to-carry statute does not violate the Second Amendment to the United States Constitution.”
The court then affirmed.
A matter of degree
Rob Doar, the political director for the Minnesota Gun Owner’s Caucus, was openly critical—less of the ruling than the of case that Torgerson presented to the courts.
“It’s critical when taking on potential landmark cases that you have an unimpeachable petitioner, rock-solid facts which put your position in the most favorable light, and a skilled litigator who can outmaneuver the opposing counsel,” Doar said. “This case lacked all of these components.”
Doar said his group, which also has problems with the permit-to-carry statute, nonetheless agrees that some limited weapons restrictions do serve public safety.
“I don’t get to own a thermonuclear weapon,” he said. “If we agree that the government has the right to own nuclear weapons and I don’t, then from there we are just talking about what degree of infringement is OK, not that there is no right to infringe.”
But Doar was critical of the ruling, too. He said the court’s strict-scrutiny examination came down to what he called “an ambiguous public safety claim.”
He also said the Supreme Court underestimates the fees and burdens that people face in securing permits to carry. There is a live-fire test qualification, for example, even though places like Minneapolis and St. Paul have no firing ranges, he said. That creates a disparate impact on those living in the inner cities, he said.
Further, Doar is concerned the Hatch precedent might hurt his group’s own federal civil rights suit, filed in June, which challenges the same statute on narrower grounds.
Their suit, Worth, et. al., v. Harrington, et. al., contends that the statute violates the rights of those aged 18 through 20, because the state won’t issue permits anyone under 21 years of age. That’s arbitrary and discriminatory, the litigants claim.
According to their complaint:
“Defendants have prohibited a particular class of persons, including plaintiffs Kristin Worth, Austin Dye and Axel Anderson from obtaining such a permit, thereby categorically prohibiting them from any means of lawfully carrying a handgun on their person in public, in direct violation of the Second and Fourteenth Amendments to the United States Constitution.”
The Hatch decision, Doar said, will strengthen the state’s hand in that Minnesota U.S. District court case. While the U.S. Supreme Court has never evaluated the Second Amendment on strict-scrutiny grounds, he said, the state can argue that, now, the Minnesota Supreme Court has.
“I disagree with that,” Doar said. “I think the precedent that it sets is very harmful.”