Natl Rifle Assn of America Inc v. Steven Mc

Case: 12-10091 Document: 00512247871 Page: 1 Date Filed: 05/20/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 20, 2013

No. 12-10091 Lyle W. Cayce

Clerk

NATIONAL RIFLE ASSOCIATION OF AMERICA, INCORPORATED;

REBEKAH JENNINGS; BRENNAN HARMON; ANDREW PAYNE,

Plaintiffs - Appellants

v.

STEVEN C. MCCRAW, in his official capacity as Director of the Texas

Department of Public Safety,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This case presents a constitutional challenge to Texas’s statutory scheme,

which does not allow 18-20-year-old adults to carry handguns in public. We

must hold that the state scheme withstands this challenge, because we are

bound by a prior panel opinion of this court, NRA v. Bureau of Alcohol, Tobacco,

Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012) (hereinafter BATF).

FACTS AND PROCEEDINGS

Statutory Framework

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In 1871, the State of Texas first prohibited individuals from carrying

handguns in public. The current version of this proscription, codified in 1973,

provides that a “person commits an offense if the person intentionally,

knowingly, or recklessly carries on or about his or her person a handgun . . . if

the person is not: (1) on the person’s own premises or premises under the

person’s control; or (2) 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). This crime is punishable by imprisonment for up to a

year and a fine of up to $4,000. Id. § 46.02(b); see id. § 12.21.

In 1995, Texas created an exception to this general criminal prohibition

when it enacted the concealed licensing program. The program allows persons

who acquire concealed carry licenses to carry concealed handguns in public.

TEX. GOV’T CODE § 411.172(a). Licenses cost $140 each and applicants must

submit their fingerprints and their criminal, psychiatric treatment, and drug

treatment histories. Id. § 411.174. They must also successfully complete a 10-

hour course, which includes both a written exam and a practical component to

demonstrate proficiency. Id. § 411.174(a)(7); see id. § 411.188. Moreover, in

order to qualify for a license, an applicant must, among other things, be “at least

21 years of age” and “fully qualified under applicable federal and state law to

purchase a handgun.”1 Id. § 411.172(a).

During legislative debate on the concealed licensing program, several

legislators advocated for the 21-year-old minimum-age requirement because they

believed that younger individuals were generally not mature enough to carry

and handle handguns in public. In 2005, Texas relaxed the licensing

requirements to allow persons under 21 who had military training to apply for

1

Under a federal statute recently upheld as constitutional by this court, 18 U.S.C. §

922(b)(1), federally licensed firearms dealers may not sell handguns to persons under 21.

BATF, 700 F.3d at 212. Texas law, however, permits those 18 and over to buy handguns.

2

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concealed handgun licenses, id. § 411.172(g), because this group’s “extensive

training in handling weapons” mitigated the legislature’s concern that persons

under 21 generally were not sufficiently mature to handle guns responsibly.

Nevertheless, Texas’s statutory scheme in effect prohibits the majority of 18-20-

year-olds from carrying a handgun in public: the general criminal provision sets

as the default rule that Texans may not carry a handgun in public, and the civil

licensing law makes 18-20-year-olds ineligible for the concealed handgun license

exception to this default rule.2

Procedural Background

Three individual plaintiffs, ages 18-20, and the National Rifle Association

(“NRA”), on behalf of its 18-20-year-old members, brought this constitutional

challenge to Texas’s constructive ban on 18-20-year-olds carrying handguns in

public. Each of the three individual plaintiffs claim that they wish to carry a

handgun in public for self-defense but are unable to apply for one solely because

of their age. While this appeal was pending, however, two of them, Rebekah

Jennings and Brennan Harmon, turned 21. The third, Andrew Payne, will not

turn 21 until July 2013.

Following discovery, the parties filed cross-motions for summary

judgment. The district court denied plaintiffs’ motion and granted the state’s

motion. The court first addressed the question of standing. It concluded that

the individual plaintiffs had standing to challenge the licensing law, because

they had presented evidence that, except for their age, they qualified for

concealed handgun licenses. Moreover, they had each alleged that, but for their

inability to get a license, they would carry a handgun in public for self-defense.

But the court held that plaintiffs lacked standing to challenge the general

criminal provision because they had not alleged that they wanted to carry

2

For clarity, we refer to § 46.02 as the “general criminal provision,” § 411.172 as the “licensing

law” or “licensing program,” and the two statutes, working together, as the “Texas scheme.”

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handguns without a license, which the court concluded was necessary to show

the credible threat of prosecution under the law required for Article III standing.

The court recognized that it need not address whether the NRA had

associational standing, since “[o]nce a court has determined that at least one

plaintiff has standing, it need not consider whether the remaining plaintiffs have

standing to maintain the suit.”

Turning to the merits, the district court upheld the handgun licensing law

on the ground that “the Second Amendment does not confer a right that extends

beyond the home.” Thus, a prohibition on carrying a handgun in public did not

infringe on plaintiffs’ Second Amendment rights. And, because neither age nor

non-military status is a suspect classification, the court applied rational basis

scrutiny to the Texas law and rejected plaintiffs’ equal protection claim.

Plaintiffs appeal.

STANDARD OF REVIEW

This court reviews questions of standing de novo. NAACP v. City of Kyle,

Tex., 626 F.3d 233, 236 (5th Cir. 2010). The parties seeking access to federal

court bear the burden of establishing their standing. Time Warner Cable, Inc.

v. Hudson, 667 F.3d 630, 635 (5th Cir. 2012). The court “review[s] a district

court’s grant of summary judgment de novo, applying the same standard as did

the district court.” Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th Cir. 1996). We

“may affirm summary judgment on any legal ground raised below, even if it was

not the basis for the district court’s decision.” Performance Autoplex II Ltd. v.

Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003). We examine de novo

the constitutionality of state statutes. Ortiz v. Quarterman, 504 F.3d 492, 496

(5th Cir. 2007).

DISCUSSION

Plaintiffs appeal the district court’s decision that they lack standing to

challenge Texas’s general criminal provision barring persons from carrying

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handguns in public. They also claim that the district court erred in ruling that

the Texas scheme regulating persons carrying handguns in public does not

violate the Second Amendment rights of, or deny equal protection to, non-

military or non-veteran 18-20-year-olds. Plaintiffs contend that 18-20-year-olds

have full Second Amendment rights and that the fundamental right to carry a

handgun for self-defense extends to carrying a handgun in public. Texas opposes

these contentions and also alleges that plaintiffs Jennings’s and Harmon’s

claims are moot because they are now 21 years old.

A. Mootness

Although all parties agree that the claims raised by Payne are not moot,

Texas argues that the court should dismiss Jennings’s and Harmon’s claims as

moot because both are now 21.3

If a claim is moot, it “presents no Article III case or controversy, and a

court has no constitutional jurisdiction to resolve the issues it presents.” Goldin

v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999). A claim becomes moot when

“the parties lack a legally cognizable interest in the outcome.” Powell v.

McCormack, 395 U.S. 486, 496 (1969). “Mootness in this context is the doctrine

of standing set in a time frame: The requisite personal interest that must exist

at the commencement of the litigation (standing) must continue throughout its

3

The parties also agree that the district court was correct that it need not address the NRA’s

associational standing because Massachusetts v. EPA holds that “[o]nly one of the petitioners needs to

have standing to permit us to consider the petition for review.” 549 U.S. 497, 518 (2007); see also

Bowsher v. Synar, 478 U.S. 714, 721 (1986) (holding that because it was clear that union members had

standing, the Court need not consider the standing issue as to the Union or Members of Congress who

were parties to the case). Plaintiffs contend that the court need not address Jennings’s and Harmon’s

standing for the same reason. We disagree. While EPA and Bowsher give courts license to avoid

complex questions of standing in cases where the standing of others makes a case justiciable, it does not

follow that these cases permit a court that knows that a party is without standing to nonetheless allow

that party to participate in the case. Cf. Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste

Mgmt. Auth., 389 F.3d 491, 501 n.18 (5th Cir. 2004) (“[W]hen one of multiple co-parties raising the same

claims and issues properly has standing, we do not need to verify the independent standing of the other

co-plaintiffs.” (emphasis added)).

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existence (mootness).” Goldin, 166 F.3d at 717 (citation and quotation marks

omitted).

Our court’s recently issued opinion in BATF controls this issue. In that

case, the same plaintiffs appealing here brought constitutional challenges

against a federal law prohibiting federally licensed firearms dealers from selling

handguns to persons under 21 years of age.4 BATF, 700 F.3d at 188. Addressing

the standing of the now-21-year-old plaintiffs Jennings and Harmon, the court

held that, “[b]ecause they have aged out of the demographic group affected by

the ban at bar, the issues on appeal are moot as to them.” Id. at 191. The court

then concluded that “Payne and the NRA, on behalf of its under-21 members,

have standing.” Id. We reach the same conclusion. Jennings’s and Harmon’s

claims are moot, as these two plaintiffs have aged out of the 18-20-year-old

range.

B. Standing

Although the remaining plaintiffs continue to have the requisite personal

interest to pursue their claims, their claims must also satisfy the injury

requirement for Article III standing. The district court determined that

plaintiffs had such standing to challenge the concealed handgun licensing law,

but concluded that plaintiffs lacked standing to challenge the general criminal

provision banning carrying a handgun in public. It came to this conclusion

based on the fact that plaintiffs did not allege “that they desire to carry a

handgun openly (as opposed to concealed), concealed without a license, or in a

manner inconsistent with the limitations governing licensed concealed carry.”

According to the court, “because the possession of a validly issued [license]

excepts the license holder from prosecution . . . , Plaintiffs have not

4

Because the statute challenged in BATF was a federal statute, the plaintiffs brought their

claims directly under the Second Amendment and through the equal protection component of the Fifth

Amendment.

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demonstrated a credible threat of prosecution” necessary to show injury. Both

plaintiffs and the state argue that the court erred in this conclusion.

“A plaintiff who challenges a statute must demonstrate 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). When asking a federal court to engage in pre-enforcement review of a

criminal statute, a plaintiff need not violate the statute; he may meet this 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.” Id.

The district court erred in its standing analysis. Plaintiffs maintain that

“Texas must permit them some manner of exercising their fundamental right to

carry a handgun.”5 The criminal provision forbids them from carrying a

handgun altogether. The licensing program declines to grant their age group,

specifically, a limited exception in the form of a concealed handgun license from

this alleged burden on their Second Amendment rights. Thus, both laws, as part

of a statutory scheme, combine to deprive plaintiffs of their alleged

constitutional rights. While striking down the age restriction in the concealed

handgun licensing law would grant the plaintiffs the relief they seek – some

manner in which to legally carry a handgun in public – and lift the threat of

prosecution, so would invalidation of the general criminal provision alone,

5

Texas argues that “plaintiffs’ sole contention” is that they are constitutionally entitled to apply

for concealed handgun licenses. Although the state concedes that plaintiffs have standing, it asserts that

“plaintiffs’ failure to support their constitutional challenge to section 46.02’s prohibitions on unlicensed

or exposed handgun carriage should lead the Court to reject their claims on the merits” after the court

determines that the plaintiffs do have standing to challenge the criminal provision. Texas’s

understanding, however, is plainly refuted by plaintiffs’ Second Amended Complaint, in which they

allege that the licensing provision and criminal provision, in concert, “prohibit law-abiding adults

between the ages of eighteen and twenty, who are not or have not been in the United States armed

forces, from carrying a handgun outside the person’s own premises or automobile.” (Emphasis added.)

Plaintiffs are clearly contending that the two statutes unconstitutionally prevent them from carrying

a handgun in public, not merely that the licensing provision bars them from applying for a license.

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because then plaintiffs could carry guns openly, even if they could not obtain a

license to carry them concealed. Plaintiffs, therefore, have standing to challenge

both laws together, because together they bar 18-20-year-olds from carrying

handguns in public in Texas.

C. Second Amendment claim

Plaintiffs contend that the district court erred in upholding this Texas

scheme, because such a bar violates the Second Amendment. They argue that

a scheme that bans 18-20-year-olds from carrying handguns in public, either

openly or concealed, is an unconstitutional infringement on 18-20-year-olds’

right to use handguns in self-defense. Texas responds that its scheme is the type

of longstanding prohibition that the Supreme Court recognized as lawful in

District of Columbia v. Heller, 554 U.S. 570 (2008).

The Second Amendment states that “[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.6 In Heller, the Supreme

Court struck down a D.C. law that banned handgun possession and required all

firearms in the home to be kept in an inoperable state, because the statute

violated this amendment. 554 U.S. at 635. After conducting an analysis “of both

text and history,” id. at 595, the Court recognized that the Second Amendment

“guarantee[s] the individual right to possess and carry weapons in case of

confrontation,” id. at 592. The “central component of [this] right” is self-defense.

Id. at 599. Because the law at issue in Heller “bann[ed] from the home the most

preferred firearm in the nation to keep and use for protection of one’s home and

family, [it] fail[ed] constitutional muster.” Id. at 628-29 (citation and quotation

marks omitted).

6

The Supreme Court has held that the Second Amendment right is fully applicable to the states

through the Fourteenth Amendment. McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010). As of

the Texas notes, the Fourteenth Amendment itself references the age of twenty-one, not eighteen. See

U.S. CONST. amend. XIV, § 2.

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Despite holding that the statute before it was unconstitutional, the Court

expressly noted that “the right was not unlimited, just as the First Amendment's

right of free speech was not.” Id. at 595. It recounted that, historically, “[f]rom

Blackstone through the 19th-century cases, commentators and courts routinely

explained that the right was not a right to keep and carry any weapon

whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.

For example, the Court said, “the majority of the 19th-century courts to consider

the question held that prohibitions on carrying concealed weapons were lawful

under the Second Amendment or state analogues.” Id. It went on to make clear

that “nothing in our opinion should be taken to cast doubt on [such] longstanding

prohibitions.” Id. It then “identif[ied several more of] these presumptively

lawful regulatory measures [] as examples,” which included “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, or laws imposing conditions and qualifications on the commercial sale

of arms.” Id. at 626-67 & n.26.

Following Heller and McDonald v. City of Chicago, this circuit adopted a

two-step inquiry to evaluate whether a firearms regulation comports with the

Second Amendment:

[T]he first inquiry is whether the conduct at issue falls within the

scope of the Second Amendment right. . . . If the challenged law

burdens conduct that falls outside the Second Amendment’s scope,

then the law passes constitutional muster. If the law burdens

conduct that falls within the Second Amendment’s scope, we then

proceed to apply the appropriate level of means-ends scrutiny. We

agree with the prevailing view that the appropriate level of scrutiny

depends on the nature of the conduct being regulated and the degree

to which the challenged law burdens the right.

BATF, 700 F.3d at 194-95 (citations and quotation marks omitted). We proceed

to evaluate the Texas scheme according to this test.

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1. Step one

The first question is whether the challenged conduct is even within the

scope of the Second Amendment right. Here, the Texas statutes collectively

prohibit carrying a handgun in public by 18-20-year-olds. This court has held

that statutes enacted to safeguard the public using age-based restrictions on

access to and use of firearms are part of a succession of “longstanding

prohibitions,” Heller, 554 U.S. at 626, that are likely outside the scope of the

Second Amendment, because such restrictions are “consistent with” both the

“longstanding tradition of targeting select groups’ ability to access and to use

arms for the sake of public safety” and the “longstanding tradition of age- and

safety-based restrictions on the ability to access arms,” BATF, 700 F.3d at 203.

In BATF, the court held that a federal law that restricted 18-20-year-olds’ access

to and use of firearms by prohibiting federally licensed firearms dealers from

selling handguns to those under 21 was consistent with these traditions, because

Congress had passed the law to deter violent crime by restricting the ability of

minors under 21, who were relatively immature, to buy handguns. Id. The

Texas scheme restricts the same age group’s access to and use of handguns for

the same reason. Therefore, under circuit precedent, we conclude that the

conduct burdened by the Texas scheme likely “falls outside the Second

Amendment’s protection.” Id.

2. Step two

Notwithstanding this conclusion, we face the same concern about the

“institutional challenges in conducting a definitive review of the relevant

historical record,” id. at 204, that the court faced in BATF. This concern leads

us to proceed to the second step of the analysis, just as the BATF court did.

In the second step, we initially determine which level of scrutiny to apply.

“[T]he appropriate level of scrutiny depends on [1] the nature of the conduct

being regulated and [2] the degree to which the challenged law burdens the

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right.” Id. at 195 (citation and quotation marks omitted). “A law that burdens

the core of the Second Amendment guarantee – for example, ‘the right of law-

abiding, responsible citizens to use arms in defense of hearth and home,’ – would

trigger strict scrutiny.” Id. at 205 (quoting Heller, 554 U.S. at 635). “[A] less

severe law” only “requires the government to show a reasonable fit between the

law and an important government objective.” Id.

This court held that the age-based federal statute challenged in BATF

“[u]nquestionably” triggered nothing more than the latter, intermediate

scrutiny. Id. The court first concluded that the federal statute does not burden

the core of the Second Amendment based on (1) the fact that the law is “not a

salient outlier in the historical landscape of gun control” and, (2) “unlike the D.C.

ban in Heller, this ban does not disarm an entire community, but instead

prohibits commercial handgun sales to 18-to-20-year-olds – a discrete category.”

Id. Furthermore, the court observed, “[t]he Second Amendment, at its core,

protects ‘law-abiding, responsible’ citizens,” and Congress had determined that

persons under 21 tend to be irresponsible and emotionally immature, and can

be thrill-bent and prone to criminal behavior. Id. at 206 (quoting Heller, 554

U.S. at 635) (emphasis added in BATF).

The court also gave three reasons why, even if the Second Amendment

rights of 18-20-year-olds come within the core of the amendment, the degree to

which the federal statute burdens those rights is not severe: (1) the law affects

only handgun sales, rather than completely banning handgun possession and

use; (2) the law does not prevent 18-20-year-olds from possessing and using guns

in defense of hearth and home; and (3) the law’s age qualification has only a

temporary effect that ends as soon as the person turns 21. See id. at 206-07.

Because the federal law does not burden the core of the Second Amendment

right and, even if it does, the degree of burden is not severe, the BATF court held

that the law warranted intermediate scrutiny.

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The BATF court’s rationales for why an age-based restriction on gun

possession and use does not burden the core of the Second Amendment right

apply equally to the state’s age-based restriction here. Moreover, we cannot say

that, even if 18-20-year-olds’ gun rights are at the core of the Second

Amendment, the Texas scheme burdens those rights to any greater degree than

the federal law challenged in BATF. As in BATF, the restriction here has only

a temporary effect. And, because it restricts only the ability to carry handguns

in public, it does not prevent those under 21 from using guns in defense of

hearth and home. Finally, it is not a complete ban on handgun use; it bans such

use only outside a home or vehicle. Therefore, we must follow our decision in

BATF and apply intermediate scrutiny to the Texas laws.

In order to withstand intermediate scrutiny, the Texas scheme must be

reasonably adapted to achieve an important government interest. Id. at 207.

Furthermore, “[t]he justification must be genuine, not hypothesized or invented

post hoc in response to litigation,” or relying “on overbroad generalizations.”

United States v. Virginia, 518 U.S. 515, 533 (1996).

The Texas laws advance the same important government objective as the

one upheld in BATF under the intermediate scrutiny standard, namely,

advancing public safety by curbing violent crime. BATF, 700 F.3d at 209 (“‘The

legitimate and compelling state interest in protecting the community from crime

cannot be doubted.’” (quoting Schall v. Martin, 467 U.S. 253, 264 (1984))).

Evidence in the record shows that curbing gun violence by keeping handguns out

of the hands of immature individuals was in fact the goal of the state legislature

in enacting the licensing provision. And historical analysis in the record

indicates that Texas implemented the general criminal provision to keep its

public spaces safe. Federal statistics also back up this rationale. Id. at 208-10.

Texas’s handgun carriage scheme is substantially related to this important

government interest in public safety through crime prevention. The discussion

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in BATF and the record in this case emphasize that those under 21 years of age

are more likely to commit violent crimes with handguns than other groups.

Nevertheless, plaintiffs argue that the laws are ill-adapted to promote public

safety because they are overbroad and, in any event, will not further the state’s

proffered goal. Plaintiffs contend that the Texas scheme is too broad because it

amounts to a total ban on carrying handguns in public by 18-20-year-olds. They

further challenge the breadth of the Texas scheme by arguing that the laws

assume that all 18-20-year-olds are too immature to carry a handgun in public.

The number of modifiers plaintiffs must use by itself undermines both these

arguments: the Texas laws prohibit (1) 18-20-year-olds from (2) publicly carrying

(3) handguns. First, the Texas laws have a similarly “narrow ambit” as the

federal law in BATF. Id. at 205. Both the state scheme and the federal laws

target the “discrete category” of 18-20-year-olds. Id. Second, the state scheme

is in some ways more related to Texas’s public safety objective that the law in

BATF, because the state laws only regulate those persons who carry guns in

public. Third, the Texas scheme restricts only the carrying of one type of gun –

handguns. It is true, as plaintiffs claim, that Texas could have taken other, less

restrictive approaches, such as allowing 18-20-year-olds to get a license if they

demonstrate a particularly high level of proficiency and responsibility with guns.

But the state scheme must merely be reasonably adapted to its public safety

objective to pass constitutional muster under an intermediate scrutiny standard.

Texas need not employ the least restrictive means to achieve its goal. Given the

substantial tailoring of the Texas scheme, plaintiffs overbreadth argument is

unpersuasive.

Plaintiffs next argue that Texas’s scheme will not promote public safety.

They first contend that the scheme “assumes that 18-20-year-olds who are

disposed toward violent criminal behavior will refrain from carrying a handgun

if doing so is unlawful.” That assumption would be far-fetched, since it is not

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clear why those disposed to violent criminal behavior would refrain from

violating the statutory ban on publicly carrying handguns. But Texas is not

necessarily making such an assumption. The state may also wish to have a way

to take 18-20-year-olds who are disposed to violence off the street before they

commit such violence. Convicting them of carrying a gun in public would

accomplish this goal. Second, plaintiffs note that 18-20-year-olds are at greater

risk of harm by violent offenders than older persons. They do not, however, say

who perpetrates such harm or where it occurs. If members of the 18-20-year-old

age cohort are at greater risk of harm from peers with guns, then the Texas

scheme may reduce the risk. And if the harm occurs in the home, the laws,

while not reducing this risk, will not prevent the 18-20-year-olds from defending

themselves in their residences.

Texas determined that a particular group was generally immature and

that allowing immature persons to carry handguns in public leads to gun

violence. Therefore, it restricted the ability of this particular group to carry

handguns outside their vehicles in public. This means is substantially related

to the Texas’s stated goal of maintaining public safety, and it still allows 18-20-

year-olds to have handguns in their cars and homes and to apply for concealed

handgun licenses as soon as they turn 21. The Texas scheme thus survives

intermediate scrutiny, and we affirm the district court’s conclusion that it does

not violate the Second Amendment.

D. Equal protection claim

Plaintiffs argue that the Texas scheme denies them equal protection of the

laws because it burdens their fundamental right to bear arms. They contend

that the state scheme cannot survive the strict scrutiny it must withstand for

burdening such a fundamental right. Whether or not Texas’s scheme satisfies

the strict scrutiny standard is not the question presented by this appeal.

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“‘Equal protection analysis requires strict scrutiny of a legislative

classification only when the classification impermissibly interferes with the

exercise of a fundamental right or operates to the peculiar disadvantage of a

suspect class.’” Id. at 211-12 (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,

312 (1976)). If a law does not implicate such a protected right or class, then it

need only be rationally related to a legitimate government interest to survive an

equal protection challenge. Id. at 212. And for such laws, plaintiffs “‘bear[] the

burden of proving the facts on which the classification is apparently based could

not reasonably be conceived to be true by the governmental decisionmaker.’” Id.

(quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000)).

Because the state scheme does “not impermissibly interfere with Second

Amendment rights,” id. at 212, or disadvantage a protected class,7 it does not

trigger strict scrutiny. We evaluate the Texas statutes merely to determine that

they rationally relate to a legitimate government interest. Plaintiffs did not

attempt to carry their burden by showing that the state scheme is irrational in

the district court or on appeal. Moreover, we concluded in the previous section

that the scheme survives the more stringent intermediate scrutiny. Therefore,

we affirm the district court’s decision to uphold the Texas scheme against

plaintiffs’ equal protection challenge.

CONCLUSION

Because plaintiffs Jennings and Harmon are now 21, we REMAND their

claims to the district court with instructions to dismiss them as moot. We also

REVERSE the district court’s ruling that the remaining plaintiffs do not have

standing to challenge Texas’s general criminal provision barring persons from

carrying handguns in public. Finally, with respect to the general criminal

7

As the district court noted, neither age nor military status is a suspect classification.

Plaintiffs do not argue that they are members of or that the laws discriminate on the basis of any other

suspect classification.

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provision, we RENDER, and with respect to the licensing law we AFFIRM the

district court, holding that the Texas scheme does not violate the Second

Amendment or the Equal Protection Clause.

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