U.S. District Court Judge Mark Pittman in Fort Worth, TX, struck down a Texas law prohibiting adults under 21 from carrying handguns.
The decision comes two months after the U.S. Supreme Court ruled “that the Second Amendment guaranteed an individual right to carry weapons in public for self-defense.”
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.”
The Firearms Policy Coalition and two plaintiffs filed the challenge in 2021. The plaintiffs claimed the law prevented them “from traveling with a handgun between Parker, Fannin and Grayson counties, where they lived, worked and went to school.”
Pittman wrote that the law banning law-abiding adults under 21 “violates the Second Amendment, as incorporated against the States via the Fourteenth Amendment.”
“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,” explained Pittman. “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.”
The Second Amendment: 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.
Pittman first mentioned that the Second Amendment text does not mention age, which is “notable” because “when the Framers meant to impose age restrictions, they did so expressly.”
He also said the Court concluded the 18-20-year-olds fall under “the people” within the text, especially since Heller stated, “Second Amendment right is exercised individually and belongs to all Americans.”
Texas tried to argue “that there was a historical basis for determining who could carry guns based on age.”
Pittman provided Texas with a civics lesson:
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 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 18to-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 judge also reminds Texas it is a shall-issue state:
This means Texas implements nondiscretionary licensing restrictions. Texas, however, prohibits lawabiding 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.
Pittman said the Court stayed “this injunction for 30 days” to give Texas time to appeal.
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