In the NRA v. McCraw
response brief, the State is backtracking on at least one of its district court claims:
As for section 46.02, the district court found that Payne and his co-plaintiffs lacked Article III standing to bring a pre-enforcement challenge to that statute because they had failed to “demonstrate a credible threat that McCraw will enforce the statute against them.” R.976. Although the State initially urged lack of standing on this basis, R.937-38, it now agrees with the plaintiffs that Payne should not be required to violate section 46.02 and present his constitutional challenges as defenses in a criminal prosecution. See Steffel v. Thompson, 415 U.S. 452, 462, 475 (1974); Ex parte Young, 209 U.S. 123, 165 (1908).
To be sure, there are many deficiencies with the plaintiffs’ challenge to section 46.02, but none of them goes to standing. Section 46.02 imposes criminal liability on persons who carry handguns openly in public or who carry concealed handguns without first obtaining concealed handgun licenses. The plaintiffs have asked the courts to enjoin the State from enforcing this provision, but they have not presented any claim or argument that the Constitution precludes States from banning the carriage of exposed handguns or requiring its citizens to obtain a license before carrying a concealed handgun.
The State takes great pains to show that while the district Judge erred on much of his opinion, the State supplies the reasons that the Judge Cummings should have based his opinion upon.
The State also rightly claims that because the plaintiffs do not contest the States ban on open carry, they have lost on the merits. The State now claims that unless a plaintiff challenges the entirety of the law (ban on open carry and the age limits to licensing of concealed carry), they have no merits claim.
Rmembering that in all of Alan Gura's carry cases, he repeatedly hammers home the idea that some form of carry must be available to be constitutional, here the State is using this exact same argument to nullify the claims of the NRA.
Open carry in public spaces is banned by Texas. Only concealed carry is allowed (albeit with licensing). The NRA has not argued "some form of carry must be available," merely that 18-20 year olds must be treated as adults and given a license to carry concealed.
The State is saying that the NRA has put the cart before the horse and has no valid claim.
In Part III (pp 39), the State gets into its real argument: It is the States that set the age of majority, not the Federal Government.
All in all, this brief points out many flaws in the NRA briefs. Both here at the circuit and at district. Despite the fact that I liked the NRA briefs, if I were to be objective...
Barring something more, I suspect that in this case, the court will decide for the defendants.