Judge says no to carrying AK-47 in public

By Mike Mosedale
BridgeTower Media Newswires
MINNEAPOLIS — Neither the Second Amendment nor a Minnesota gun permit allows an individual to stroll down a public street with a loaded AK-47 semi-automatic rifle.

At least, that’s the opinion of U.S. District Court Chief Judge John Tunheim, who on Tuesday shot down a federal lawsuit against the city of St. Cloud from a Royalton man who put that theory to test.

The dispute began in November 2014, when plaintiff Tyler Gottwalt was crossing a bridge between the cities of St. Cloud and Sauk Rapids, his Kalashnikov slung across his back. After alarmed witnessed called 911, police from both municipalities swarmed to the scene.

After confirming that Gottwalt possessed a valid carry permit and consulting with the Benton County Attorney Phillip Miller, Sauk Rapids police decided there was no basis to hold Gottwalt.

But St. Cloud police took a different view and charged Gottwalt with violating a municipal ordinance that prohibits anyone who is not a police officer — even a permit holder — from carrying a firearm other than a handgun unless it is broken down or cased.

The criminal charge was subsequently dismissed by Stearns County District Court Judge Vickie Landwehr, who concluded that state statutes appeared to contradict each other regarding the legality of Gottwalt’s actions.

The law that governs the carrying of rifles — Minn. Stat. 624.7181 — “certainly implies that a permit holder can carry any type of rifle in public,” Landwehr wrote. But at the same time, she added, the state’s permit to carry law — Minn. Stat. 624.714 — “appears to concern itself only with pistols and common sense dictates that the Legislature could not have intended for individuals to be allowed to walk on public sidewalks armed with AK-47 rifles.”

Under Tunheim’s reading of the statutes, permit holders may legally carry a rifle or shotgun in public but only if the weapon still satisfies the definition of “pistol.” To meet that requirement, a weapon must be designed to be fired with one hand and have an overall length of less than 26 inches, he wrote.

Tunheim also rejected the argument that the St. Cloud ordinance violated Gottwalt’s Second Amendment rights under a pair U.S. Supreme Court decisions from 2010, McDonald v. Chicago and District of Columbia v. Heller.

“Neither case supports Gottwalt’s broad proposition that the Second Amendment provides individuals with the unrestricted right to bear an AK-47 or another type of military-style assault weapon,” Tunheim opined.

Kenneth Udoibok, Gottwalt’s attorney, said he had not yet spoken with his client but hopes to appeal the ruling to the 8th U.S. Circuit Court of Appeals.

“I think this order makes new law. In essence, the court has ruled that one may not carry an assault rifle in public without dismantling it. I don’t think that’s the law in Minnesota,” Udoibok said.

Asked why his client was carrying the AK-47 in public, Udoibok said he had no idea.

“We don’t get to ask what people’s motives are when they are complying with the law,” he said. “Was he testing his rights? Maybe. Was it happenstance? Could be. I never asked.”

St. Cloud City Administrator Matt Staehling, who was the city attorney at the time of Gottwalt’s arrest and prosecution, said he was pleased by the ruling.

“It’s what we’ve argued all along. From the beginning, our position has been that the only firearms you can openly carry, pursuant to a permit, have to meet the definition of a pistol,” said Staehling.

Although Tunheim decided the case via statutory interpretation, Staehling said he is confident that the city would have also prevailed under qualified immunity defense.

Asked for comment, Joseph Olson, a professor emeritus at Mitchell-Hamline School of Law and founder of the Gun Owner’s Civil Rights Alliance, lambasted Tunheim’s “terribly written” decision.

Olson said he was a lobbying at the Legislature in 1994 when the Legislature last amended the law prohibiting the carrying of uncased rifles and shotguns in public places — Minn. Stat. 624.7181 — and personally authored the language that created the carve out for permit holders.

“People knew what the law said: anyone with a permit can either carry a pistol or a long gun,” said Olson.

Has the question ever been litigated previously?

Olson said he was unaware of any such cases.

While he takes a dim view of Tunheim’s ruling, Olson said it probably won’t have much of a lasting consequence.

“Federal courts cannot interpret state law as precedent. Only the Minnesota appellate courts can tell you what 7181 means,” he said.

That said, Olson averred that he would rather not see the case get kicked up to the 8th Circuit.