What’s next after judge strikes down law that bans Texans under 21 from carrying handguns?

U.S. District Judge Mark Pittman said the law violated the Second Amendment.

By Rhonda FanningAugust 26, 2022 12:25 pm,

Under Texas law, most people between the ages of 18 and 20 are prohibited from obtaining a license to carry a handgun or carrying a handgun for self-defense outside their homes. With support from a group called the Firearms Policy Coalition Inc., two plaintiffs in that age group filed a lawsuit in November claiming the Texas law prevented them from traveling with a handgun between Parker, Fannin and Grayson counties, where they lived, worked and went to school.

On Thursday, U.S. District Judge Mark Pittman struck down the law, saying it violated the Second Amendment.

Charles Rocky Rhodes, a professor of state and federal constitutional law at South Texas College of Law, joined Texas Standard to discuss the rationale behind the decision and what comes next.

This transcript has been edited lightly for clarity:

Texas Standard: What did the judge say about the Texas law banning 18- to 20-year-olds from getting a handgun license or carrying for self-defense outside the home? 

Charles Rocky Rhodes: He said it violated the Second Amendment as recently interpreted by the Supreme Court this summer in New York State Rifle Association vs. Bruen, which considered the New York regulations that did not allow a license to be issued for a handgun unless you had good cause.

And he said that that case had created a new approach to interpreting the Second Amendment, that you first have to look at the text of the Second Amendment to see if the individual is asserting a right that is protected by the text. And if the individual is asserting a right that’s protected by the text, then the government can only regulate that if it can show a long-standing history of this type of regulation that dates back to 1791.

So this is that historical context that the Supreme Court brought up in the New York case that was decided back in June. 

Exactly right. And he’s saying that this new approach is so different than what has been used previously that he therefore felt justified in finding and holding this regulation prohibiting 18- to 20-year-olds from having handguns was unconstitutional, even though it’s been upheld several times by the 5th Circuit, which is the appellate court that’s over him and that’s going to be reviewing his ruling.

The judge has stayed his ruling pending appeal. As a practical matter, what does that stay mean? And given what the Fifth Circuit has said in the past, how are they likely to rule on this? 

He recognized that a stay was probably appropriate here because the 5th Circuit had come to different conclusions on this similar issue in past cases. And so therefore to stop a disruption, he said he would stay the effect of his order to give time for the 5th Circuit to weigh in on whether or not it wants to stay within its past precedent or not.

The issue is going to be, does the 5th Circuit think that the Supreme Court’s decision this summer has altered its approach enough that its past decision was erroneous? Of course, one thing – and we can talk a little bit more about this historical analysis – is by going back to 1791, we had no town in the United States that had any more than 33,000 people. That was New York City; that’s how many people it had. We have a hundred cities in Texas with more than 33,000 people today.

If you’re trying to use the historical analysis, you know, what is your baseline for the context in modern terms? I mean, so much has changed, and a lot of people have have noted that. And I guess a lot of folks will be looking at the 5th Circuit to see just how much this changes the court’s approach overall to the Second Amendment. Is it beyond the realm of possibility that this one might actually end up in the Supreme Court depending on outcome? 

I think this one would be one that could be subject to Supreme Court review if the 5th Circuit agrees with Judge Pittman, because there are so many laws – you know, there’s federal law, state laws everywhere – that prohibit 18- to 20-year-olds. So this would be a sea change. And these laws have been around in the United States beginning in the 1850s. So it’s not like these are newfangled laws that prohibit 18- to 20-year-olds from being able to carry handguns.

Some people who say they’re supporters of Second Amendment rights have said that there might be some room on restricting purchases of semiautomatic rifles for people under age 21. And after the shooting in Uvalde, we saw Sen. John Cornyn cross the aisle to help pass the first major new federal gun legislation in decades. Do you see this decision affecting any of that momentum we’ve seen since Uvalde? 

Well, it certainly makes us more cautious that the courts may put a wrench into that. I’m not sure that as a political matter, it’s going to change the calculus, but it is a big concern with respect to what the judiciary is going to say about these laws at the end of the process.

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