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).
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."
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 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
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 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.
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).
Plaintiffs appeal the district court's decision that they lack standing to challenge Texas's general criminal provision barring persons from carrying handguns in public. They also claim that the district court
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.
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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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 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.
Although the remaining plaintiffs continue to have the requisite personal
"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, 99 S.Ct. 2301, 60 L.Ed.2d 895 (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."
Plaintiffs contend that the district court erred in upholding this Texas scheme, because
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.
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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783. 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, 128 S.Ct. 2783.
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:
BATF, 700 F.3d at 194-95 (citations and quotation marks omitted). We proceed to evaluate the Texas scheme according to this test.
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, 128 S.Ct. 2783, 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.
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 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, 128 S.Ct. 2783). "[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
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.
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, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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, 104 S.Ct. 2403, 81 L.Ed.2d 207 (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 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
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 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.
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.
Because the state scheme does "not impermissibly interfere with Second Amendment rights," id. at 212, or disadvantage a protected class,
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 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.