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Old January 22, 2012, 12:10 AM   #61
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,524
Judge Samuel Cummings has denied the MSJ for the plaintiffs and granted the Defendants MSJ in Jennings v. McCraw. This is the same judge that called 18yr olds "infants" in the case BATF case, that is now before the 5th CCA.

In this decision Judge Cummings grants standing on the one hand;

Although Plaintiffs have not actually completed their applications for a CHL, to do so would be futile. The issuance of this license to non-military individuals under 21 years of age is categorically prohibited by statute. See Tex. Gov’t Code § 411.172(a)(2) & (g). Plaintiffs have put forward evidence that they would be qualified for a CHL but for the minimum age requirement, and McCraw has not demonstrated evidence to the contrary. The futility of a formal application, coupled with the fact that Plaintiffs would qualify for a CHL but for the age requirement, is sufficient to confer standing.
and then turns around and denies it on the other:

Plaintiffs have not alleged facts sufficient to confer standing to challenge Texas Penal Code § 46.02 because they cannot demonstrate a credible threat that McCraw will enforce the statute against them. ... At no point in their complaint do Plaintiffs 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. And because the possession of a validly issued CHL excepts the license holder from prosecution under Texas Penal Code § 46.02 for all intents and purposes, Plaintiffs have not demonstrated a credible threat of prosecution.

Therefore, the Court is of the opinion that Plaintiffs lack standing to challenge Texas Penal Code § 46.02. The Court is also of the opinion that, because the relief sought by the NRA with respect to its challenge to Texas Penal Code § 46.02 involves the issuance of CHLs for its otherwise qualified 18- to 20-year-old membership, it therefore lacks standing for the same reasons that are fatal to the Individual Plaintiffs’ challenge.
And then denies the plaintiffs MSJ and grants the defendants MSJ on 2A grounds (markups in the original):

While not skirted entirely, the focus of the parties’ briefing does not center on the breadth of the Second Amendment but rather on the question of at what age does the right to keep and bear arms vest. This approach puts the cart before the horse. Because the Court is of the opinion that the Second Amendment does not confer a right that extends beyond the home, it need not reach the question regarding the age of investiture of such a right. See United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (suggesting that a court’s inquiry into the constitutionality of a statute is complete upon holding that a challenged law does not burden conduct falling within the scope of the Second Amendment’s guarantee).

Therefore, with regard to the Second Amendment issue, Defendant’s Motion for Summary Judgment is GRANTED and Plaintiffs’ Motion for Summary Judgment is DENIED.
Now for the Equal Protection Clause (again, all markups are in the original):

As the Court has discussed above, the licensing scheme does not burden the fundamental right to keep and bear arms.8 Neither does the licensing scheme target a suspect class. Traditionally, suspect class status is applied to a class that has been “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).

The Supreme Court has categorically rejected age as a suspect classification. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000) (“[A]ge is not a suspect classification under the Equal Protection Clause.”). Therefore, Texas “may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” Id. The Constitution permits states to “draw lines on the basis of age when they have a rational basis for doing so at a class-based level, even if it ‘is probably not true’ that those reasons are valid in the majority of cases.” Id. at 86.
Accordingly, with regard to the Equal Protection issues, Defendants’ Motion for Summary Judgment is GRANTED and Plaintiffs’ Motion for Summary Judgment is DENIED.

8 Although pleaded in broad terms, Plaintiffs’ Equal Protection argument seems to center on the infringement of a fundamental right. The Court has rejected that argument. Therefore, the Court will conduct only a short analysis on suspect classification because, although not clear from the complaint, Plaintiffs’ briefing indicates that they likely did not intend to raise this issue.
The judge has used rational basis to uphold the Texas law. At least he was honest enough not to attempt to cloak it as intermediate scrutiny. Public Safety, trumps the right to self defense. Seemingly, at any age.
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