A recent rash of unusual lawsuits challenging newly adopted policies of retailers barring sales of firearms to youths is one of the latest and, perhaps, most intriguing features of the increased attention paid to the topic of gun safety, and the litigation has significant implications for gun safety advocates and foes in Minnesota.
It started with a pair of related cases filed by a 20-year-old man in Oregon asserting that prohibitions adopted by a pair of large national retailers, Dick’s Sporting Goods and Walmart, of sales of the weaponry to anyone under 21 years old violates the law in that state. The proscriptions were implemented by the retail giants at the end of February in the wake of the latest school-shooting massacre that took 17 lives in Parkland, Florida. Within days, the Oregon youth brought the lawsuits after he was denied purchases of a .22 caliber rifle at a Dick’s-owned Field & Stream facility and another unspecified weapon at a Walmart.
The separate suits were joined within short order by another rejected 20-year-old hopeful Oregonian gun buyer, who asserted claims against a Kroger affiliate and two other retailers who refused to sell to him. Then, an 18-year-old Michigan man followed suit with his own in that state after he, too was not allowed to buy a gun at a Dick’s store there. Those cases were expected to be joined by an outbreak of orchestrated others.
The litigation seemed, at first blush, to be far-fetched. Private businesses generally can make goods and services available — or unavailable, for that matter — to whomever paying customers they wish, provided they do not discriminate invidiously against prospective patrons.
But that’s the rub. Oregon is one of a few states that has a law on the books banning refusal to furnish commercial items or services, with a few exceptions such as alcohol and legally permitted marijuana, to those persons “of age,” which is believed to mean 18 years or older.
The skeptics, once apprised of that measure, viewed the lawsuits in a different light. A number of savants expressed their views that, rather than being a stretch, the litigation seems likely to succeed and the authorities in the Beaver state began scrambling to add firearms to the short list of items exempt from the law. Under federal law, those under 21 cannot purchase guns, but there are no prohibitions on rifles or shotguns.
If the challengers do prevail, as seems increasingly likely, their triumphs could have immense impact on the re-energized gun safety movement and the Second Amendment absolutists throughout the country, including here in Minnesota.
One of the many initiatives advanced by gun safety advocates is restricting sales of firearms to those under 21, who have, understandably, been disproportionately involved in mass shootings in general and almost exclusively the triggermen (note the virtual absence of female shooters) in the scourge of school assaults. Even President Trump temporarily voiced approval for such a limitation after the Parkland perfidy before apparently changing his mind the next day after what he termed a “good (great)” secret meeting with representatives of the National Rifle Association (NRA), which regards that type of restriction as anathema to the gun culture it fosters and relies upon for pecuniary and political support.
With little prospect for enactment of firearm-selling age limitations, or much other meaningful measures at the federal level, other than banning rapid-firing-enabling “bump stocks,” the attention of gun safety enthusiasts is being directed to the states. As so-called laboratories of democracy, they may decide to experiment with age restrictions unrestrained by the limitation imposed by the law in Oregon and the few jurisdictions with similar measures.
Although Minnesota is not one of them, it is far from free of potential entanglements should private-sector firearm sellers here decide to restrict sales to youths. Minnesota has a pair of laws that warrant consideration in connection with any such efforts.
It is one of about a half- dozen states (including Oregon) that, unlike federal law, bar some other forms of discrimination against youths. The state Human Rights Act explicitly extends its anti-discrimination employment prohibition to anyone 18 years old, unless there is a bona fide reason not to hire younger employees. This is a departure from the 1967 federal law, the Age Discrimination in Employment Act (ADEA), which applies by its terms to employees 40 years or older, a measure that the U.S. Supreme Court held in a 2004 case entitled General Dynamics Land Systems, Inc v Cline does not cover younger workers because Congress “ignored everyone under forty.”
Additionally, the state Lawful Consumable Products law protects anyone in Minnesota against discriminatory treatment because of the use of a lawful product, which could include firearms.
These laws, however, only apply to employment relationships, not commercial transactions. Their spirit might discourage prohibiting sale of guns to youths, but their terminology and treatment by the courts fall short of doing so.
Further, the absence here of any Oregon-like explicit prohibitions on sales of weaponry to under-age individuals does not necessarily mean that Minnesotans can rest on their laurels and assume any restrictions adopted by private retailers will be effective.
Suits and shadows
The Oregon statute and the suits it has bred cast long shadows over gun safety measures here. Unless repealed, the Oregon law — and others like it — creates a sizable, perhaps insuperable, obstacle to achieving age limits on firearm transactions. Retailers like those involved in the current lawsuits, including Dick’s, Walmart, and Kroger, may be reluctant to adopt piecemeal proscriptions if they are unable to do so uniformly throughout the country.
While the biggest Minnesota-based retailer, Target, has banned the sale of firearms for years, its resistance may not be followed by others. If some larger sellers shy away from prohibiting those sales in the face of the laws and litigation in Oregon and other jurisdictions, midsized and smaller ones may join them in declining to impose those limitations in Minnesota or elsewhere.
Moreover, the NRA and its acolytes may try to bring about similar laws in Minnesota and other states restricting policies or practices that allow disparate treatment of youthful aspiring buyers of firearms.
Minnesota may be a fertile field for doing so. This state has been in the forefront of extending rights and opportunities for youths, not depriving them.
It lowered the voting age from 21 to 19 in 1970, a year before the age limit was lowered to 18 by an amendment to the U.S. Constitution.
Another Minnesota age reduction occurred in 1973 when the state lowered the drinking age from 21 to 18, a level raised to 19 three years later and then returned to 21 in 1986, joining all other states as a condition of receiving federal highway funding.
Despite this history, enactment of an Oregon-type measure here would be ironic because its prime supporters presumably would consist of Republicans and others with similar “free-market” views who generally oppose governmental laws and regulations dictating business practices to the private sector.
If they attempt to do so, however, they may confront another irony: One of the main sources of opposition may come from youths supporting efforts to impose limits on what they can do and treat them less favorably than other adults.
Yet another oddity in a situation rife with them.
The writer is a Twin Cities constitutional and employment law attorney.
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