[Al Norris]

On May 30th, the Brady Group filed an amicus brief, which I did not bother to download, let alone read. We've all read their drivel way too much, as it is.

On June 18th, the NRA filed its response brief.

On the question of standing (Rebekah Jennings and Brennan Harmon have reached the age of 21 and the State wants them dropped from the suit as no longer having standing to sue), the NRA responds that since the State concedes that Andrew Payne still has standing, that all other parties may remain. See footnote #1 (pp 10 of the pdf).

Moving on...

Because the State has declined to defend the district court’s holding that the Second Amendment right is limited to the home, see State Br. 23, the question in this case is simply whether 18-to-20-year-old adults are protected by the Second Amendment at all. Texas argues that they are not, see, e.g., State Br. 31, 36, but the history of the right to keep and bear arms proves otherwise.

The NRA brings up the Militia Act of 1792 to bolster their claim:

The State argues that “embracing the Militia Act of 1792 would limit the beneficiaries of the right to keep and bear arms in unjust — indeed, indefensible — ways,” because it extended only to “able-bodied white males who had not yet turned 46.” State Br. 45-46. But this misses the point entirely: we are not arguing that the right to keep and bear arms is limited to militia members, but rather that the right must extend at least that far.

Congress’s inclusion of 18-to-20-year-olds in the Militia Act of 1792 establishes that the founding generation understood 18-to-20-year-olds to be members of the citizens’ militia and hence entitled—indeed, required—to keep and bear arms. See Pl. Br. 33-34. And given that 18-to-20-year-olds were among “the people” entitled under the Second Amendment to keep and bear arms for the purpose of militia service, it follows that they were also entitled to keep and bear arms for all other lawful purposes, including the “core lawful purpose of self-defense.” Heller, 554 U.S. at 630.

Indeed, the legislative history of the Militia Act of 1792 illustrates that the government was not understood to have plenary authority over the right of 18-to- 20-year-olds to keep and bear arms, despite their minority status. A member of the House proposed an amendment that would have required the United States to provide arms to militia members who were poor, apprentices, or minors. See 2 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 1853-56 (Gales & Seaton 1834). The proposal failed. As one Representative remarked, “as to minors, their parents or guardians would prefer furnishing them with arms themselves, to depending on the United States when they knew they were liable to having them reclaimed.” Id. at 1856 (emphasis added). If the founding generation objected to the government providing 18-to-20-year-olds with arms for fear that the government could subsequently take those arms away, it is inconceivable that the government was understood to have the authority to prohibit 18-to-20-year-olds from carrying arms altogether.

Given all of the above, attorney Charles Cooper then writes:

Texas’s reliance on the common-law age of majority, of course, suffers from an additional fatal flaw: the State has repudiated this common-law doctrine. The laws of Texas establish that “the age of majority in this state is 18 years.” TEX. CIV. PRAC. & REM. CODE § 129.001. Indeed, when it reduced the age of majority to 18 years in 1973, the Texas legislature expressly stated that “the purpose of this Act is to extend all the rights, privileges, and obligations of majority to all persons who are at least 18 years of age.” GENERAL AND SPECIAL LAWS OF THE STATE OF TEXAS, PASSED BY THE REGULAR SESSION OF THE SIXTY-THIRD LEGISLATURE, ch. 626, § 1 (1973).

The above quotes were among the first 9 pages of the reply brief (pp 10-18 of the pdf). For all intents and purposes, I think the States cause has just been repudiated, quite thoroughly.

Mr. Cooper then goes into attacking the States reliance on the 14th amendments voting age, as a distinction to majority age in Part II of the brief.

In Part III, Mr. Cooper addresses the "in the home" mantra of the lower court that the State did not defend. Right off the bat, Mr. Cooper attacks the Brady amicus brief.

Part IV of the brief goes to scrutiny. If not TH&T, then Strict Scrutiny must be applied. Even under Intermediate scrutiny, as applied to law-abiding citizens, the laws of Texas would fail.

Part V addresses the Equal Protection Clause of the plaintiffs.

All in all, a very well thought out and written brief that counters each and every claim of the States response.