Proponents of common sense in the balancing of gun rights and gun safety notched another victory on Thursday. Judge Sam Cummings of federal district court in Lubbock, Texas, tossed a challenge to a Texas restriction on gun ownership brought by several plaintiffs, including the National Rifle Association (NRA).
The plaintiffs brought a Second Amendment challenge to a Texas law limiting eligibility for a concealed handgun license (CHL) to persons who are at least 21 years of age. The law contains an exception for those who are at least 18 years of age, but not yet 21 years of age provided that – broadly stated – they are currently in the military or are veterans. The defendant in this case was Steven McCraw, as Director of the Texas Department of Public Safety (DPS).
McCraw challenged the plaintiffs' ability to bring the suit on grounds of standing – in short that there was no controversy for the plaintiffs to actually bring before the court: they had not, in fact, applied for a CHL, and they were not facing criminal prosecution for violating the law. On the grounds that it would be futile to attempt to obtain a CHL, the court held that the plaintiffs had standing to challenge the civil statute; on the grounds of threatened criminal prosecution under the Texas Penal Code, the court held that the plaintiffs did not have standing. Therefore, the plaintiffs' Second Amendment challenge was to the civil statute alone, Tex Gov't Code §411.172.
The court then turned to the heart of the case – the Second Amendment challenge. The text of the Second Amendment goes as follows:
“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.
In the case before the federal court in Lubbock, the court's analysis in upholding the Texas law relied on distancing itself from the relatively recent U.S. Supreme Court case, District of Columbia v. Heller, 554 U.S. 570, 595 (2008), which upheld an individual right to keep and bear arms. The Lubbock court stated that Heller “is actually quite narrow in that the opinion focuses primarily on self-defense in the home.” The court distinguished the present case from Heller in noting that the plaintiffs in the present case sought to carry a handgun outside of the home. As such, the court took the privileges afforded by the CHL in Texas outside of the constitutional rights afforded by the Second Amendment: “It is axiomatic that a statutory scheme that essentially provides more protection of an individual right than that conferred by the Constitution cannot, therefore, be unconstitutional.” The court further advised that the plaintiffs' proper path to redress was not through the courts, but rather, through the legislature in Texas, or a constitutional amendment.
As a footnote to the Second Amendment challenge, the plaintiffs attempted a challenge under the Equal Protection Clause, but the court quickly disposed of this, reasoning that the group of persons aged 18-20 who are neither veterans nor current servicemembers are not a suspect class, and also that the CHL age restriction has a rational relationship to public safety not unlike laws that prohibit the sale of alcohol to minors.
The case is Jennings, et al. v. McCraw, 5:10-CV-141-C in the United States District Court for the Northern District of Texas, Lubbock Division.
The order in this case can be viewed here
The text of the seminal case District of Columbia v. Heller, 554 U.S. 570, 595 (2008), can be viewed here