     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.

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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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                                  No. 12-10091
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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                                  No. 12-10091
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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   Case: 12-10091   Document: 00512247871    Page: 16   Date Filed: 05/20/2013



                              No. 12-10091
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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