Firearms Policy Coalition, Inc v. McCraw

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FIREARMS POLICY COALITION, INC. ET

AL.,

Plaintiffs,

v. No. 4:21-cv-1245-P

STEVEN C. MCCRAW, IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF THE TEXAS

DEPARTMENT OF PUBLIC SAFETY, ET AL.,

Defendants.

OPINION & ORDER

The Second Amendment protects the right of “the people” to keep and

bear arms for self-defense.1 Yet Texas prohibits law-abiding 18-to-20-

year-olds from carrying a handgun for self-defense outside the home.

Does the Second Amendment allow this blanket prohibition?

BACKGROUND

Texas generally makes it illegal for 18-to-20-year-olds to carry a

handgun for self-defense outside the home. Under Texas law, a “person

commits an offense if the person: (1) intentionally . . . carries on or about

his or her person a handgun; (2) at the time of the offense is younger

than 21 years of age” unless that person is “on the person’s own premises

or premises under the person’s control, or inside of or directly en route

to a motor vehicle or watercraft that is owned by the person or under the

person’s control.” TEX. PENAL CODE § 46.02(a).

1No less than the great civil rights leader Frederick Douglas wrote that “the

liberties of the American people were dependent upon the Ballot-box, the Jury-

box, and the Cartridge-box, that without these no class of people could live and

flourish in this country.” FREDERICK DOUGLASS, THE LIFE AND TIMES OF

FREDERICK DOUGLASS: FROM 1817-1882 333 (1881).

This general prohibition, however, does not apply to an individual

with a license to carry a handgun. Id. §§ 46.15(b)(6)(A), (B). But besides

a few exceptions for military personnel, honorably discharged veterans,

and persons protected by a protective order under either the Texas

Family Code or the Texas Code of Criminal Procedure, law-abiding 18-

to-20-year-olds are prohibited from being licensed to carry a handgun.

See TEX. GOV’T CODE §§ 411.172(a)(2), (g), (h), (i). Simply stated,

although Texans over the age of 21 can carry a handgun (either openly

or concealed) outside the home (with or without a license), law-abiding

18-to-20-year-olds Texans are prohibited from carrying a handgun for

self-defense outside the home.

Two individual plaintiffs, between the ages of 18 and 20, and the

Firearms Policy Coalition, Inc., on behalf of its 18-to-20-year-old Texas

members, challenge the constitutionality of Texas’s statutory scheme

that prohibits law-abiding 18-to-20-year-olds from carrying handguns

for self-defense outside the home. Now before the Court are the Parties’

cross-motions for summary judgment, which are ripe for review.

LEGAL STANDARD

Summary judgment is appropriate where the movant demonstrates

“there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see Six

Dimensions, Inc. v. Perficient, Inc., 969 F.3d 219, 224 (5th Cir. 2020).

ANALYSIS

The issue is whether prohibiting law-abiding 18-to-20-year-olds from

carrying a handgun in public for self-defense is consistent with this

Nation’s historical tradition of firearm regulation. Based on the Second

Amendment’s text, as informed by Founding-Era history and tradition,

the Court concludes that the Second Amendment protects against this

prohibition. Texas’s statutory scheme must therefore be enjoined to the

extent that law-abiding 18-to-20-year-olds are prohibited from applying

for a license to carry a handgun.

A. Jurisdiction

The Court starts with jurisdiction. The judicial power vested by

Article III of the Constitution extends to “Cases” and “Controversies.”

U.S. CONST. art. III, § 2, cl. 1. Because federal-court jurisdiction is

limited to cases or controversies, plaintiffs must “establish they have

standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)); see also Umphress v.

Hall, 500 F. Supp. 3d 553 (N.D. Tex. 2020) (Pittman, J.).

To establish standing, a plaintiff must demonstrate that: (1) he or

she suffered an injury in fact that is concrete, particularized, and actual

or imminent, (2) the injury was caused by the defendant, and (3) the

injury would likely be redressed by the requested judicial relief. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

Here, the individual plaintiffs have standing to challenge the laws

that prohibit them from carrying a handgun for self-defense outside the

home. On this point, each plaintiff lives in and often travels to Parker,

Fannin, and Grayson Counties. And but for the laws that prohibit them

from carrying a handgun, both individual plaintiffs attest that they

would carry a handgun while traveling in those counties for work and

for school. But because carrying a handgun would violate the law—and

necessarily expose them to a credible threat of enforcement, see ECF

No. 38 ¶ 60—neither individual plaintiff will violate the laws before this

challenge.

Based on declarations attesting to these facts, see ECF No. 59, the

Court concludes that it has jurisdiction over this case and that the

claims are ripe for review. When challenging the constitutionality of a

statute, “a plaintiff need not violate the statute; [they] may meet [the]

injury requirement by showing an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed

by a statute, and . . . a credible threat of prosecution thereunder.” Nat’l

Rifle Ass’n of Am., Inc. v. McCraw, 719 F.3d 338, 345 (5th Cir. 2013)

(“McCraw”) (cleaned up). In this case, the individual plaintiffs have

“demonstrate[d] a realistic danger of sustaining a direct injury as a

result of the statute’s operation or enforcement.” Babbitt v. United Farm

Workers Nat. Union, 442 U.S. 289, 298 (1979). Accordingly, the Court

concludes that the individual plaintiffs have standing.

The Firearms Policy Coalition (“FPC”) has standing to sue on behalf

of its members if: (a) any of its members would have standing to sue

individually; (b) the interests it seeks to protect are germane to its

purpose; and (c) neither the claim asserted, nor the relief requested,

requires the participation of individual members in the lawsuit. Ass’n.

of Am. Phys. & Surg., Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir.

2010).

FPC has standing to challenge the laws that prohibit its members

from carrying a handgun for self-defense outside the home. Here, the

FPC is a coalition organized “to defend and promote the People’s

rights—including the right to keep and bear arms—advance individual

liberty, and restore freedom.” ECF No. 59 at 25. This lawsuit—which

seeks to vindicate the right to bear arms for FPC’s 18-to-20-year-old

members—is clearly germane to serving that purpose. And as discussed

above, the FPC’s 18-to-20-year-old members have standing to sue

individually. Accordingly, the Court concludes that FPC has standing to

sue on behalf of its 18-to-20-year-old members. See, e.g., McCraw, 719

F.3d 338; Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco,

Firearms, and Explosives, 700 F.3d 185 (5th Cir. 2012) (“NRA”).

Because Plaintiffs have standing to sue, the Court denies the Motion

to Dismiss for Lack of Jurisdiction (ECF No. 32).

B. Second Amendment Framework

“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 Second (and the Fourteenth)

Amendment “protect[s] an individual’s right to carry a handgun for self-

defense outside the home.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111, 2122 (2022); see also District of Columbia v. Heller, 554

U.S. 570 (2008); McDonald v. Chicago, 561 U.S.742 (2010). This right,

however, is not unlimited: our Nation’s historical tradition teaches that

there are certain “longstanding,” “presumptively lawful regulatory

measures” that the Second Amendment did not abrogate. Heller, 554

U.S. at 626–27, n.26.2

In Bruen, the Supreme Court reiterated the standard for applying

the Second Amendment. In doing so, the Supreme Court rejected the

two-step framework adopted by the courts of appeal, calling it

“inconsistent with Heller’s historical approach and its rejection of

means-end scrutiny.” Bruen, 142 S. Ct. at 2129.

Rather than means-end scrutiny, courts must “assess whether

modern firearms regulations are consistent with the Second

Amendment’s text and historical understanding.” Id. at 2132. Stated

another way, courts must first interpret the Second Amendment’s text,

as informed by history. And when the plain text covers an individual’s

conduct, the Constitution presumptively protects that conduct. Id. at

2129–30. “The government must then justify its regulation by

demonstrating that it is consistent with the Nation’s historical tradition

of firearm regulation. Only then may a court conclude that the

individual’s conduct falls outside the Second Amendment’s ‘unqualified

command.’” Id. at 2130 (quoting Konigsberg v. State Bar of Cal., 366 U.S.

36, 50, n.10 (1961)).

C. Application to Texas’s Categorical Prohibition

With this framework, the Court turns to the merits: whether Texas

can prohibit law-abiding 18-to-20-year-olds from carrying a handgun for

self-defense outside the home.

1. The Second Amendment’s Text

The Court starts with the text. See, e.g., Shannon v. United States,

512 U.S. 573, 580 (1994) (Thomas, J.) (“[W]e turn first, as always, to the

text[.]”). If the plain text covers the proposed course of conduct, the

2One prominent, early commentator described the right to bear arms as

“the true palladium of liberty . . . the right of self defence is the first law of

nature: in most governments it has been the study of rulers to confine this right

within the narrowest limits possible.” 1 ST. GEORGE TUCKER, BLACKSTONE’S

COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND

LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE

COMMONWEALTH OF VIRGINIA 300 (1803).

Constitution presumptively protects that conduct. Here, Plaintiffs are

law-abiding 18-to-20-year-olds seeking to carry a handgun for self-

defense outside the home. It is undisputed that the “Second and

Fourteenth Amendments protect an individual’s right to carry a

handgun for self-defense outside the home.” Bruen, 142 S. Ct. at 2122.

The relevant question, therefore, is whether law-abiding 18-to-20-year-

olds are afforded this protection.

a. “Right of the People”

Are law-abiding 18-to-20-year-olds a part of “the people” mentioned

in the Second Amendment? As explained below, the Court concludes

that they are.

To start, the Second Amendment does not mention any sort of age

restriction. This absence is notable—when the Framers meant to impose

age restrictions, they did so expressly. See, e.g., U.S. CONST. art. I, § 2

(age 25 for the House of Representatives); id. art. I, § 3 (age 30 for the

Senate); id. art. II, § 1 (age 35 for the President). Instead, the Second

Amendment refers only to “the people,” which various Founding-Era

dictionaries define as a reference to those who make up the “national

community.” See United States v. Jimenez-Shilon, 34 F.4th 1042, 1044–

45 (11th Cir. 2022) (quoting Noah Webster, American Dictionary of the

English Language 600 (1st ed. 1828) (“The body of persons who compose

a community, town, city, or nation.”)); see also 2 Samuel Johnson, A

Dictionary of the English Language 305 (6th ed. 1785) (“A nation; those

who compose a community.”)).

In accord with that understanding, Heller said that “the people” is a

term of art that refers to “all members of the political community, not

an unspecified subset.” 554 U.S. at 580. Heller’s interpretation found

support in an earlier decision, United States v. Verdugo-Urquidez, which

considered the Fourth Amendment’s reference to “the people.” 494 U.S.

259 (1990). There, the Court interpreted the phrase to encompass those

“persons who are part of a national community” or those who have

“sufficient connection with this country to be considered part of that

community.” Id. at 265. And without challenging Heller’s interpretation,

Bruen said it was undisputed that “ordinary, law-abiding, adult citizens

[] are part of ‘the people’ whom the Second Amendment protects.” Bruen,

142 S. Ct. at 2134. “The Second Amendment . . . ‘surely elevates above

all other interests the right of law-abiding, responsible citizens to use

arms’ for self-defense.” Id. at 2131 (quoting Heller, 554 U.S. at 635).

With this guidance, the Court asks a simple question: are law-

abiding 18-to-20-year-olds properly considered members of the political

community and a part of the national community? The answer is yes.

And based on that answer, the Court concludes that law-abiding 18-to-

20-year-olds are a part of “the people” referenced in the Second

Amendment. This conclusion is unsurprising: Heller stated that the

“Second Amendment right is exercised individually and belongs to all

Americans.” Heller, 554 U.S. at 581 (emphasis added).

Other constitutional provisions bolster this Court’s interpretation of

“the people.” The First and Fourth Amendments, like the Second

Amendment, refer to “the people.” And both Heller and Verdugo-

Urquidez suggest that the term “the people” is defined consistently

throughout the Constitution. On this point, the First Amendment has

been interpreted to apply to all persons, even those under the age of 18.

See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969) (free speech); see also W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943) (free exercise). And while the First Amendment is

limited in some contexts (such as the forum or content of the speech),

age does not serve as a basis for eradicating the right. See Tinker, 393

U.S. at 506 (“First Amendment rights, applied in light of the special

characteristics of the school environment, are available to teachers and

students. It can hardly be argued that either students or teachers shed

their constitutional rights to freedom of speech or expression at the

schoolhouse gate.”).

The Fourth Amendment likewise protects individuals regardless of

age. See New Jersey v. T.L.O., 469 U.S. 325, 334 (1985). To be sure, the

context of a search—e.g., whether on or off school property—can affect

the expectations of privacy. Id. at 337–40. But the expectation of privacy

is not affected based on the age of the person being searched. Rather,

the context of a search is the distinguishing factor. See id.

Thus, because neither the First nor Fourth Amendments exclude—

nor have been interpreted to exclude—18-to-20-year-olds, the Court

declines to read an implicit age restriction into the Second Amendment.

Beyond the First and Fourth Amendments, other constitutional

provisions, which do not specifically mention “the people,” support the

Court’s conclusion that “the people” protected by the Second

Amendment include 18-to-20-year-olds. On this point, neither the Fifth

Amendment nor the Fourteenth Amendment exclude—or have been

interpreted to exclude—18-to-20-year-olds. See, e.g., Fisher v. Univ. of

Tex., 136 S. Ct. 2198, 2210 (2016) (equal protection); Goss v. Lopez, 419

U.S. 565, 574 (1975) (due process); Kent v. Dulles, 357 U.S. 57, 65–66

(1958) (travel); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (equal

educational opportunities). Likewise, in the Eighth Amendment context,

the Supreme Court has said that where “a line must be drawn,” “[t]he

age of 18 is the point where society draws the line for many purposes

between childhood and adulthood.” Roper v. Simmons, 543 U.S. 551, 574

(2005).3 The Court continues this line of interpretation and concludes

that 18-to-20-year-olds are protected by the Second Amendment.

With this conclusion, the Court now determines if interpreting “the

people” to include 18-to-20-year-olds is consistent with the rest of the

Second Amendment’s text. The Second Amendment contains two

clauses: the prefatory clause, which announces the purpose of the

Second Amendment, and the operative clause. And “[l]ogic demands

that there be a link between the stated purpose and the command.”

Heller, 554 U.S. at 595, 599. The Court must therefore determine

whether its interpretation of “the people” is logically linked to the

prefatory clause (and its stated purpose).

Heller explained that a prefatory clause does not limit its operative

clause. Instead, the prefatory clause here announces the Second

Amendment’s purpose is to “prevent elimination of the militia.” Id. This

3For further discussion regarding how various constitutional provisions

apply with varying level of force based on age, see Hirschfeld v. Bureau of

Alcohol, Firearms, Tobacco & Explosives, 5 F.4th 407 (4th Cir. 2021), vacated

as moot, 14 F.4th 322, 328 (4th Cir. 2021).

stated purpose provides further evidence that the Second Amendment

protects law-abiding 18-to-20-year-olds. Id. at 577 (noting that the

“requirement of [a] logical connection may cause a prefatory clause to

resolve an ambiguity in the operative clause”).

As stated above, there must be a link between the stated purpose and

the command. And given the Second Amendment’s stated purpose, logic

demands that if an individual was (or is) a member of the “militia,” the

Second Amendment’s protections extend at least to those who constitute

the militia. That is, although the Second Amendment is not limited to

only those in the militia, it must protect at least the pool of individuals

from whom the militia would be drawn. See THOMAS M. COOLEY, THE

GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF

AMERICA 271 (1880). It would be illogical to enumerate a constitutional

right to keep and bear arms to maintain an armed militia if that right

did not protect those individuals from whom a militia would be drawn.4

So who are these militia members? In United States v. Miller, the

Supreme Court explained that “the Militia comprised all males

physically capable of acting in concert for the common defense.” 307 U.S.

174, 179 (1939). And in Heller, the Supreme Court affirmed this

definition, stating that it “comports with founding-era sources.” Heller,

554 U.S. at 595 (collecting sources). Thus, at the Founding, the “militia”

was generally understood to be comprised of “all able-bodied men,”

which included 18-to-20-year-olds. Id. at 596.

The historical record supports this understanding. The First

Congress enacted legislation “command[ing] that every able-bodied

4 William Rawle, an early Constitutional scholar and the first United States

Attorney for Pennsylvania, provides the following insight:

Although in actual war, the services of regular troops are

confessedly more valuable; yet; while peace prevails, . . . the militia

form the palladium of the country. . . . The corollary, from the first

position, is, that the right of the people to keep and bear arms shall

not be infringed. The prohibition is general. No clause in the

Constitution could by any rule of construction be conceived to give

congress a power to disarm the people.

WILLIAN RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF

AMERICA 125–26 (2d ed. 1829).

male citizen between the ages of 18 and 45 be enrolled in the militia and

equip himself with appropriate weaponry.” Jones v. Bonta, 34 F.4th 704,

719 (9th Cir. 2022) (quoting Perpich v. Dep’t of Def., 496 U.S. 334, 341

(1990) (alterations omitted)). Additionally, the 1792 Act required militia

members to arm themselves rather than rely on the Government to

provide arms. See Miller, 307 U.S. at 179 (recognizing that the militia

presupposed firearm possession because “when called for service[,] these

men were expected to appear bearing arms supplied by themselves and

of the kind in common use at the time”). Likewise, at the time of the

founding, most states had similar laws requiring militia service for 18-

to-20-year-olds. See generally Nat’l Rifle Ass’n v. Bureau of Alcohol,

Tobacco, Firearms & Explosives, 714 F.3d 334 (5th Cir. 2013) (Jones, J.,

dissenting). Thus, the undisputed historical evidence establishes that

18-to-20-year-olds were understood to be a part of the militia in the

Founding Era.5 See Heller, 554 U.S. at 596 (explaining that the

Constitution assumed the militia to exist at the time it was drafted).

And because 18-to-20-year-olds were (and are) a part of the militia, the

Second Amendment must protect their right to keep and bear arms.

The Court thus concludes the plain text of the Second Amendment,

as informed by Founding-Era history and tradition, covers the proposed

5This original understanding of who is a member of the militia has

remained consistent over the course of this Nation’s history. See 10 U.S.C. §

246(a) (“The militia of the United States consists of all able-bodied males at

least 17 years of age . . . .”); cf. BURKE DAVIS, THE CIVIL WAR, STRANGE &

FASCINATING FACTS 63 (1982) (“More than 2,000,000 Federal soldiers were

twenty-one or under (of a of a total of some 2,700,000) [in the Civil War.]”).

In fact, it is worth noting several of America’s greatest military heroes were

under 21 years of age at the time of their acts of valor. For example, George

Washington’s “adopted son,” Gilbert du Motier, Marquis de Lafayette, was only

19 years old when he was made a major general in the Continental Army.

JOSEPH J. ELLIS, HIS EXCELLENCY, GEORGE WASHINGTON, 115–16 (2004). And

at only 19 years of age, Arthur MacArthur, Jr.—the “Boy Colonel” of the Civil

War and father of General Douglas MacArthur—received the Medal of Honor

for gallantry in action at the Battle of Missionary Ridge in 1863. GEOFFREY

PERRET, OLD SOLDIERS NEVER DIE, THE LIFE OF DOUGLAS MACARTHUR 5–7

(1996). Moreover, World War II’s most decorated soldier—a Texan named

Audie Murphy—was also only 19 when he received the Medal of Honor for his

actions at the Colmar Pocket on the Franco-German border. DON GRAHAM, NO

NAME ON THE BULLET: A BIOGRAPHY OF AUDIE MURPHY 101 (1989).

course of conduct and permits law-abiding 18-to-20-year-olds to carry a

handgun for self-defense outside the home.

b. Texas cannot rebut the Court’s conclusion that the plain text

covers the proposed course of conduct.

Texas unsuccessfully attempts to avoid this holding by claiming that

the Court’s conclusion is foreclosed by Fifth Circuit precedent. To

support its argument, Texas points to NRA, 700 F.3d 185, and McCraw,

719 F.3d 338. These cases analyzed the Second Amendment under the

two-step framework repudiated by Bruen.6 Texas argues that because

Bruen abrogated only the Step Two analysis, the Step One analysis in

both cases remains binding precedent.

The Court agrees that Bruen overruled any Fifth Circuit precedent

as to the Step Two analysis. But the Court disagrees that the Step One

analysis of NRA and McCraw are binding here. Neither case purported

to resolve the relevant issues based solely on a Step One analysis. First,

NRA concluded its Step One analysis by stating that, although “it [was]

inclined to uphold the challenged federal laws at step one of [its]

analytical framework,” it “ultimately concluded that the challenged

federal laws pass muster even if they implicate the Second Amendment

guarantee.” 700 F.3d at 204. Second, McCraw, which purported to follow

NRA, underscored the limited nature of NRA’s Step One analysis:

“[U]nder circuit precedent, we conclude that the conduct burdened by

the Texas scheme likely ‘falls outside the Secondment Amendment’s

protection.” 719 F.3d at 347 (emphasis added).

As apparent from this language, Step One analysis neither demands

a certain result nor can it be considered a “necessary prerequisite to the

holding” that would bind a future court. In re Ulta Petroleum Corp., 28

F.4th 629, 641 (5th Cir. 2022). The Step Two analysis—not the Step One

6Before Bruen, the Fifth Circuit utilized a two-step framework. At Step

One, courts determined whether the challenged law impinged upon a right

protected by the Second Amendment—that is, whether the law regulates

conduct that falls within the scope of the Second Amendment’s guarantee. At

Step Two, courts would determine whether the law survived the proper level

of scrutiny. As Bruen made clear, Step Two was incompatible with Heller and

the Second Amendment.

analysis—is necessary for the result in both NRA and McCraw.

Accordingly, the Court concludes that neither NRA nor McCraw is

dispositive here. Cf. Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–95

(1981) (noting the distinction between a “likelihood of success” on the

merits—which is the language used in McCraw—and actual “success”

on the merits). Thus, the Court considers the Step One analysis only to

the extent that it persuades this Court that the Second Amendment’s

plain text does not cover the proposed course of conduct at issue here.

On this point, the Court finds neither NRA nor McCraw persuasive.

In NRA, the Fifth Circuit considered the constitutionality of 18 U.S.C.

§ 922(b)(1) and (c)(1), which prohibit federally licensed firearms dealers

from selling handguns to persons under the age of 21. NRA, 700 F.3d at

188. That issue, which centered on law-abiding 18-to-20-year-olds

purchasing handguns, is wholly different than the issue here—whether

law-abiding 18-to-20-year-olds can carry a handgun for self-defense

outside the home.

Further, courts must start and end with the text.7 As an interpretive

tool, courts may consult the historical record to determine what the

public may have understood that text to mean at the time it was ratified

or codified. NRA, however, failed to grapple with the text of the Second

Amendment. Instead, as Judge Jones explains, the Fifth Circuit

considered only “Founding-Era Attitudes.” Thus, instead of first

determining whether the Second Amendment’s plain text covers the

proposed conduct (as Heller and Bruen command), NRA considered only

what (a portion of) the historical record revealed about general

Founding-Era attitudes. While the Founders’ attitudes can inform a

7As Chief Justice John Marshall eloquently stated 195 years ago:

To say that the intention of the instrument must prevail; that this

intention must be collected from its words; that its words are to be

understood in that sense in which they are generally used by those

for whom the instrument was intended; that its provisions are

neither to be restricted into insignificance, nor extended to objects

not comprehended in them, nor contemplated by its framers . . . .

Ogden v. Sanders, 25 U.S. (12 Wheat) 213, 332 (1827) (Marshall, C.J.

dissenting).

court of the public’s understanding of a specific text at the time it was

ratified, that understanding must be tethered to an interpretation of the

text itself. And on this point, NRA failed to explain how those “attitudes”

informed the public of what the text of the Second Amendment meant

when it was ratified. Thus, NRA is not persuasive as to whether the

Second Amendment’s plain text covers law-abiding 18-to-20-year-olds

carrying a handgun for self-defense outside the home. And because

McCraw adopted NRA’s Step One analysis without any further

discussion, it suffers from the same shortcoming and is also

unpersuasive in this case.

The Court thus disagrees with Texas’s interpretation of the Second

Amendment’s text and the historical understanding of that text. Thus,

the analysis moves to Texas’s attempt to justify its regulation by

showing it is consistent with the Nation’s historical tradition of firearm

regulation.

2. This Nation’s Historical Tradition of Gun Regulation

Bruen is clear: “[W]hen the Second Amendment’s plain text covers

an individual’s conduct, the Constitution presumptively protects that

conduct.” 142 S. Ct. at 2129–30. Because (as detailed above) the plain

text covers ordinary, law-abiding 18-to-20-year-olds carrying a handgun

for self-defense outside the home, that conduct is presumptively

protected by the Constitution. The burden therefore falls on Texas to

“affirmatively prove that its firearms regulation is part of the historical

tradition that delimits the outer bounds of the right to keep and bear

arms.” Id. at 2127. Because Texas failed to carry its burden, the law

must be enjoined.

Courts use analogical reasoning to determine whether a modern

regulation is constitutional. Such reasoning “requires only that the

government identify a well-established and representative historical

analogue, not a historical twin.” Id. at 2133. This necessarily requires

courts to understand and compare “how and why the regulations burden

a law-abiding citizen’s right to armed self-defense.” Id. Thus, “whether

modern and historical regulations impose a comparable burden on the

right of armed self-defense and whether that burden is comparably

justified are ‘central’ considerations when engaging in an analogical

inquiry.” Id. (quoting McDonald, 561 U.S. at 767). However, the

regulation-in-question need not be “a dead ringer for historical

precursors” to withstand challenge. Id.

a. The “longstanding,” “presumptively reasonable restrictions”

articulated by Heller and Bruen do not apply here.

Before analyzing the historical analogues that Texas presents, the

Court first considers whether this case is analogous to the specific kinds

of restrictions that both Heller and Bruen suggested are constitutional.

As explained below, none resolve this case.

First, the relevant restriction here is Texas prohibiting law-abiding

18-to-20-year-olds from carrying a handgun for self-defense outside the

home. Thus, Texas’s restriction hinges solely on the person’s age.

Because age is the distinguishing factor, Texas’s statutory scheme is

therefore not analogous to “longstanding” “laws forbidding the carrying

of firearms in sensitive places such as schools and government

buildings.” Heller, 554 U.S. at 626; Bruen, 142 S. Ct. at 2133–34.

Second, Texas’s prohibition does not distinguish between a law-

abiding 18-to-20-year-old carrying a handgun openly and a law-abiding

18-to-20-year-old carrying a handgun concealed. And rather than

implementing a “reasonable regulation” specific to the “manner of public

carry,”—e.g., to guard against individuals “carry[ing] deadly weapons in

a manner likely to terrorize others”—Texas categorically prohibits law-

abiding 18-to-20-year-olds from publicly carrying handguns. Bruen, 142

S. Ct. at 2150. Accordingly, Texas’s laws cannot be upheld based on the

“historical evidence from antebellum America” showing that “the

manner of public carry was subject to reasonable regulation.” Id.

(“States could lawfully eliminate one kind of public carry—concealed

carry—so long as they left open the option to carry openly.”).

Third, Texas is a shall-issue state. This means Texas implements

nondiscretionary licensing restrictions. Texas, however, prohibits law-

abiding 18-to-20-year-olds from applying for such a license. Thus,

although Heller and Bruen reiterated that “nothing” “should be

interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-

issue’ licensing regimes,” id. at 2139 n.9, a shall-issue regime cannot

allow a state to prohibit a class of persons from exercising their Second

Amendment right solely based on their age.

On this point, Texas argues that the Supreme Court’s reassurances

bar Plaintiffs’ claims. But Texas misunderstands Plaintiffs’ requested

relief. Instead of enjoining the entire statutory scheme, Plaintiffs seek

to enjoin only provisions that prohibit them from applying for a license

to carry a handgun. Thus, it is consistent with the Supreme Court’s

reassurances to require Texas to provide 18-to-20-year-olds the

opportunity to satisfy whatever nondiscretionary licensing restrictions

Texas chooses.

Fourth, this case does not involve gun ownership by felons or the

mentally ill. Heller, 554 U.S. at 626–27; Bruen 142 S. Ct. at 2162

(Kavanaugh, J., concurring).

Fifth, this case does not entail the “historical tradition of prohibiting

the carrying of dangerous and unusual weapons.” Id.

Finally, this case is not about “laws imposing conditions or

qualifications on the commercial sale of arms.” Id.

Accordingly, the specific kinds of restrictions that both Heller and

Bruen indicated are constitutional and do not resolve this case. The

Court thus turns to Texas’s arguments.

b. Texas’s Historical Analogue Arguments

As Bruen made clear, Texas must “affirmatively prove that its

firearms regulation is part of the historical tradition that delimits the

outer bounds of the right to keep and bear arms.” See id. at 2127. Texas

argues that the “thorough and compelling” historical analysis in NRA

satisfies this burden.8 The Court, however, is unpersuaded. To start,

8Here, “[t]he job of judges is not to resolve historical questions in the

abstract; it is to resolve legal questions presented in particular cases or

controversies.” Bruen, 142 S. Ct. at 2130 n.6 (emphasis in original). And “[i]n

our adversarial system of adjudication, we follow the principle of party

presentation.” United States v. Sineneng-Smith, 140 S.Ct. 1575, 1579 (2020).

Courts are thus entitled to decide a case based on the historical record compiled

by the parties. Bruen, 142 S. Ct. at 2130 n.6.

NRA failed to grapple with the Second Amendment’s text. Likewise, as

Judge Jones stressed in her dissent, NRA failed to conduct a tailored

historical analysis.

NRA discussed four types of historical evidence: (1) Founding-Era

“gun safety regulations,” (2) laws “that targeted particular groups for

public safety reasons,” (3) the age of majority at the time of the

Founding, and (4) state laws—starting in the second half of the 19th

century—“restricting the ability of persons under 21 to purchase or use

particular firearms.” NRA, 700 F.3d at 200–03.

But based on Bruen’s guidance, NRA’s historical analysis is not

enough to support Texas’s prohibition. To be sure, Bruen stressed that

modern firearms regulations need not be a “dead ringer for historical

precursors” and a law will pass constitutional muster if it is “analogous

enough” to historical firearms restrictions.” Id. at 2133. Courts,

however, must be able to conclude modern and historical regulations

impose a “comparable burden” that is “comparably justified.” Id. Here,

however, the Court concludes that Texas failed to carry its burden on

this point.

NRA cited to only a few restrictions that dated back to the time of

the Second Amendment’s ratification: “laws regulating the store of gun

powder,” “administering gun use in the context of militia service,” and

“prohibiting the use of firearms on certain occasions and in certain

places.” NRA, 700 F.3d at 200. These regulations, however, are not

sufficient historical analogs to Texas’s statutory scheme that prohibits

law-abiding 18-to-20-year-olds from carrying a handgun for self-defense

outside the home. See Heller, 554 U.S. at 632 (explaining that these sorts

of regulations “provide no support for [a] severe restriction” since “they

do not remotely burden the right of self-defense as much as an absolute

ban on handguns”).

NRA’s reference to laws “that targeted particular groups for public

safety reasons” is also insufficient historical analogs to support Texas’s

statutory scheme. NRA, 700 F.3d at 200. The Supreme Court has

repeatedly recognized the presumed constitutionality of “longstanding

prohibitions on the possession of firearms by felons and the mentally ill.”

Heller, 554 U.S. at 626–27; Bruen 142 S. Ct. at 2162 (Kavanaugh, J.,

concurring). But this recognition of specific “longstanding prohibitions”

does not support a general prohibition on almost all 18-to-20-year-olds—

just because of their age.

Instead, the longstanding prohibitions regarding felons and the

mentally ill were based on an individualized determination that

allowing the person in question unfettered access to firearms would pose

a threat to public safety. Texas’s statutory scheme does the opposite.

The scheme starts by prohibiting 18-to-20-year-olds from carrying a

handgun for self-defense outside the home. Only if a rare exception

applies may an 18-to-20-year-old seek to obtain a license to carry. And

rather than determining that a person in question is a threat to public

safety, certain exceptions require an individualized determination

before allowing a person to exercise their Second Amendment rights. See

TEX. GOV’T CODE § 411.172(i) (allowing an 18-to-20-year-old to become

“eligible for a license to carry a handgun if the person is protected under

an active protected order” issued under the Texas Family Code or Texas

Code of Criminal Procedure).

NRA also focused on the age of majority. At the Founding, the

common law age of majority was 21 years old. States did not enact

legislation lowering the age of majority to 18 until the 1970s. Compare

U.S. CONST. amend. XXVI (the amendment lowering the voting age of

U.S. citizens from 21 to 18 years of age was ratified by the states on July

1, 1971), with NRA 700 F.3d at 201 (recognizing it was not until the

1970s that the States enacted legislation lowering the age of majority

from 21 to 18). Texas thus argues the Second Amendment cannot protect

the rights of those whom the Founding Era considered to be infants in

the eyes of the law. The age of majority, however, tells us very little

about the scope of the Secondment Amendment’s protections; reliance

on the age of majority does not move the needle in favor of either party.

Generally, the Second Amendment guarantees “the right of the

people to keep and bear Arms,” and the “people” referred to in the Bill

of Rights have always been understood to be “the whole people.” THOMAS

MCINTYRE COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN

THE UNITED STATES OF AMERICA 267–68 (1880). More specifically, “the

age of majority—even at the Founding—lacks meaning without

reference to a particular right. 1 WILLIAM BLACKSTONE, COMMENTARIES

463–65 (1765). Instead, the relevant age of majority depends on capacity

or activity. See id. at 463–65 (recognizing the “different capacities which

[individuals] assume at different ages”). As a result, “constitutional

rights were not generally tied to an age of majority, as the First and

Fourth Amendments applied to minors at the Founding as they do

today.” Hirschfeld, 5 F.4th at 435.

Further, neither NRA nor Texas points to any laws—premised on the

common law age of majority—that is a sufficient historical analog to

support Texas’s statutory prohibition. This is relatively expected: The

militia was composed of those that had yet to attain the age of majority.

Thus, the Court concludes that the age of majority cannot support

Texas’s statutory scheme. See Heller, 554 U.S. at 612–13 (quoting Nunn

v. Georgia, 1 Ga. 243, 250 (1846)).

Finally, NRA focused on state laws at the end of the 19th century

that “restrict[ed] the ability of persons under 21 to purchase or use

particular firearms.” NRA, 700 F.3d at 202. The earliest law cited is

from 1856. Accordingly, NRA’s “thorough and compelling” historical

analysis is void of any laws from the Founding Era. On this point, the

historical record before the Court establishes (at most) that between

1856 and 1892, approximately twenty jurisdictions (of the then 45

states) enacted laws that restricted the ability of those under 21 to

“purchase or use firearms.” See id. And by 1923, three more states joined

with similar laws. Id. But the record stops short and does not show any

“historical analogs” from the Founding Era.

This case therefore presents the Court with an important question:

What history should a court consider? To this point, Bruen recognized

an “ongoing scholarly debate” on whether the Fourteenth Amendment’s

ratification in 1868 imbued the Second Amendment with a new and

different meaning to the States than it had to the Federal Government

in 1791. Bruen, 142 S. Ct. at 2138.

The Supreme Court nonetheless clarified that the “post-Civil war

discussion of the right to bear arms, [which] ‘took place 75 years after

the ratification of the Second Amendment, . . . do[es] not provide as much

insight into its original meaning as earlier sources.’” Id. at 2137–38

(quoting Heller, 554 U.S. at 614). Bruen “should not be understood to

endorse freewheeling reliance on historical practice form the mid-to-late

19th century to establish the original meaning of the Bill of Rights.” See

id. at 2163 (Barrett, J., concurring). Thus, despite the “ongoing scholarly

debate,” Bruen recognized the Supreme Court has “made clear that the

individual rights enumerated in the Bill of Rights and made applicable

through the States through the Fourteenth Amendment have the same

scope as against the Federal Government.” Id. at 2137 (citing Ramos v.

Louisiana, 140 S. Ct. 1390 (2020); Timbs v. Indiana, 139 S. Ct. 682

(2019); Malloy v. Hogan, 378 U.S. 1, 10 (1964)).

To uphold Texas’s statutory prohibition on this record, this Court

would have to “giv[e] postenactment history more weight than it can

rightly bear.” See id. at 2136. Thus, the Court concludes Texas failed to

produce sufficient historical analogs from the Founding Era and the

Reconstruction Era to support its statutory prohibition. The Court

therefore enjoins the Texas laws to the extent they prohibit law-abiding

18-to-20-year-olds from applying for a license to carry a handgun.9

Even if the Court focuses too heavily on Founding-Era history rather

than exclusively on Reconstruction-Era history, Texas still failed to

carry its burden. At most, Texas’s historical analogs show only that, by

1923, 22 states had laws imposing general restrictions on “the purchase

or use of firearms” for those younger than 21. Based on Bruen’s

guidance, however, the Court concludes these laws cannot sufficiently

establish that a prohibition on law-abiding 18-to-20-year-olds carrying

a handgun in public for self-defense is consistent with this Nation’s

historical tradition of firearm regulation.

D. The Court stays this injunction for 30 days, pending appeal.

Federal Rule of Civil Procedure 62(a) provides an automatic stay

upon a judgment’s execution for thirty days. FED. R. CIV. P. 62(a). For a

9Though Texas cannot impose a “substantial burden on public carry” for 18-

to-20-year-olds, Texas could, under Bruen, require 18-to-20-year-olds to satisfy

additional objective criteria when compared to those above the age of 21.

final judgment that grants an injunction, however, there is no automatic

stay. Id. The Court may exercise its discretion to “suspend [or] modify”

an injunction pending appeal if it provides “terms that secure the

opposing party’s rights.” Id. at 62(d). The relevant factors in determining

if a court should stay an injunction pending appeal are: (1) whether the

party against whom the injunction was granted made a strong showing

of a likelihood of success on the merits; (2) whether the party against

whom the injunction was granted will be irreparably injured absent a

stay; (3) whether a stay will substantially injure the other parties’

interests; and (4) where the public interest lies. Hilton v. Braunskill, 481

U.S. 770, 776 (1987); see also Hunt v. Bankers Tr. Co., 799 F.2d 1060,

1067 (5th Cir. 1986); 11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2904 (3d ed.). Despite these clear-

cut factors, the decision to issue a stay pending appeal “contemplate[s]

individualized judgments in each case,” and it “cannot be reduced to a

set of rigid factors.” Hilton, 481 U.S. at 777.

Here, the Court ultimately concludes it should stay the injunction for

thirty days, pending appeal. Of the four factors at issue in this test, only

the first factor is a close call. As discussed above, determining the

“historical analog” of a regulation presents many questions without fully

formed answers. For instance, different interpretations on whether

Reconstruction-era history is applicable or how closely a valid regulation

must hew to its predecessor could, for instance, alter the outcome of this

case. The Court’s crystal ball is further clouded by the fact that the Fifth

Circuit twice upheld this regulation under previous challenges. Thus,

the Court concludes Texas has a likelihood of success if this judgment is

appealed to the Fifth Circuit.

The remaining three factors all weigh heavily in favor of granting an

injunction. “When a statute is enjoined, the State necessarily suffers the

irreparable harm of denying the public interest in the enforcement of its

laws.” Planned Parenthood of Greater Tex. Surg. Health Servs. v. Abbott,

734 F.3d 406, 419 (5th Cir. 2013). Texas also has an interest in the full

adjudication of this issue before it issues potentially invalid licenses to

carry a handgun. Further, Texas’s “interest and harm merges with that

of the public.” Id.

Though Plaintiffs’ interest in the vindication of their Constitutional

rights suffers while the judgment is stayed, the stay is necessary to

militate the possible negative effects of relying on the injunction while

it is subject to appellate review and possible reversal. If the Court’s

decision is reversed after Plaintiffs rely on it to purchase and carry

handguns or apply for licenses to carry, they may be subject to the very

criminal liability they sought to avoid. While acknowledging the

unusual circumstance of sua sponte staying its own injunction, the Court

concludes that “a temporary stay is appropriate to ‘suspend[] judicial

alteration of the status quo’” because it “will allow [the Fifth Circuit] to

hear oral arguments and rule on the merits.” Veasey v. Abbott, 870 F.3d

387, 392 (5th Cir. 2017) (quoting Nken v. Holder, 556 U.S. 418, 429

(2009)). After review of all relevant factors, the Court stays its judgment

and injunction for thirty days or pending the final disposition of any

appeal that may result from this judgment.

E. Plaintiffs are not barred from seeking fees if they ultimately

prevail on the merits.

Defendants Glazer and Smith argue that Plaintiffs are barred from

the recovery of attorneys’ fees against them. They argue that they are

entitled to sovereign, qualified, and prosecutorial immunity. They also

argue that Plaintiffs may not seek injunctive relief under the doctrine of

Ex Parte Young while also bringing a claim under § 1983—that

Plaintiffs must choose between the remedies.

The “American Rule” remains that parties must bear their own costs

and attorneys’ fees. Yet under 42 U.S.C. § 1988, the prevailing party in

a civil rights case under § 1983 ordinarily should recover attorneys’ fees

unless special circumstances would render such an award unjust. See

Blanchard v. Bergeron, 489 U.S. 87, 91 (1989). Further, attorneys’ fees

awarded “ancillary to prospective relief [are] not subject to the strictures

of the Eleventh Amendment.” Missouri v. Jenkins, 491 U.S. 274, 279

(1989). And when state sovereign immunity applies, “Congress had

spoken sufficiently clearly to overcome [it] in enacting § 1988.” Id.

Therefore, if Plaintiffs’ claims arise out of § 1983 and accordingly are

entitled to recover under § 1988, Defendants’ arguments about

sovereign immunity must fail.

Further, if Plaintiffs’ claim arose out of the doctrine of Ex Parte

Young, the award of attorneys’ fees is not barred by an immunity

argument. The award of attorneys’ fees is “ancillary” to an injunction.

Id. at 279. It does not “compensate”; rather, it “reimburses [the plaintiff]

for a portion of the expenses [] incurred in seeking prospective relief.”

Hutto v. Finney, 437 U.S. 678, 695 n.24 (1978). Again, Defendants’

arguments that they may invoke sovereign immunity to escape paying

fees fail.

Finally, Defendants’ own cases appear to contradict their theory that

a § 1983 claim precludes relief under Ex Parte Young or vice versa. See,

e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (holding that

Congressional authority to enact legislation pursuant under Section 5 of

the Fourteenth Amendment supersedes Eleventh Amendment

Immunity). Thus, the Court cannot conclude that the Plaintiffs are

barred as a matter of law from seeking attorneys’ fees. Therefore,

Defendant’s motion to bar attorneys’ fees is DENIED.

ORDER

As explained, the Court concludes that it has jurisdiction and that

Plaintiffs’ claims are ripe for review. The Court therefore DENIES

Defendants’ Motion to Dismiss for Lack of Jurisdiction (ECF No. 32).

Further, the Court GRANTS Plaintiffs’ Motion for Summary

Judgment (ECF No. 57) and DENIES Defendants’ Motions for

Summary Judgment (ECF Nos. 45, 48, 51).

Accordingly, the Court ORDERS that:

1. To the extent that Texas’s statutory scheme, TEX. PENAL CODE

§ 46.02(a) and TEX. GOV’T CODE §§ 411.172(a)(2), (g), (h), (i),

prohibits law-abiding 18-to-20-year-olds from carrying handguns

for self-defense outside the home based solely on their age, this

statutory scheme violates the Second Amendment, as

incorporated against the States via the Fourteenth Amendment.

2. Defendants and all their officers, agents, servants, employees,

attorneys, and other persons who are in active concert or

participation with them are hereby ENJOINED and

RESTRAINED from enforcing Texas’s statutory scheme against

law-abiding 18-to-20-year-olds based solely on their age.

3. This injunction is hereby STAYED for thirty days, or pending

appeal, for the duration of the appellate process.

SO ORDERED on this 25th day of August 2022.

Nw 7 Fretbma_

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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