The Newest NRA Lawsuits - Texas

Not uncommon to have 15 year old parents and soldiers in some parts of the world today - sadly.

The issue is, for a psychologist, whether impulse control is sufficient at a certain cut off age. For those who want to lower the age to 18, the strongest argument is the rights arguments based on voting, marriage and entering the service.

If you want to argue the neurophysiology of impulse control that is not the best argument for the lowering of the age, I have to say. It has been argued that in good old days, the younger males were supervised by older males more than today.

Sorry to be a downer on that, but I know what I know.

Glenn
 
That really was the point I was clumsily trying to make earlier, in the post that got pounced on and got me branded a "Brady-buncher" :mad:

My experience is that less kids these days, especially males, have effective role models growing up. We see it more every year in our school, and the result is prolonged childhood, not the other way around.
 
You could even call it forced, and enforced, late "childhood". Young people do not accept responsibility because they are not expected to.

When I was 12 I recieved my first firearm (that was "mine", in my room, for me to use when I could afford the ammo) Some back then (50's) got "their" first gun earlier, so later...but...

My first gun was a single shot .22 rifle. I wanted a repeater and was very disappointed that it was a single shot. Dad said, "you show you are responsible with the single shot, we can talk about a repeater next year." Yes, that was my 12th birthday present. Oh, and yes, I did get the repeater for my next birthday...still have it. Marlin Model 80.

If you did that today you would be considered crazy, or neglegent. No 12 year-old is "responsible" enough everyone says. Why? because they are never given, or are required to be responsible.
 
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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.
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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. :(
 
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.
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OK, if this indeed is the case, then why is an 18 year old male required by federal law, not state law, to register for the draft?
My understanding, though it very well can be wrong, is that the federal age of majority is 18 and the draft registration requirement is based on that.

And isn't the legal age to vote also based on the same thing?
 
And isn't the legal age to vote also based on the same thing?
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Not at all. I, f'rinstance had to register for the draft at 18 (1966) but couldn't vote until I was 21. I had to dodge the draft the hard way -- I enlisted! :eek::rolleyes:

Back then, one of the big arguments for lowering the voting age was that if you were old enough to die for your country, you should be old enough to vote. I don't necessarily agree with that logic. Like they say, the only difference between the Army and the Boy Scouts is that the Boy Scouts have adult leaders! :D
 
In the "For What It's Worth Department..."

The real problem here is that the Right to Keep has been ruled upon. We have yet to have the Circuits, much less the Supreme Court. agree that the Right to Bear means bear in public spaces.

That's what all of Gura's carry cases are about.

Not so the NRA. They have jumped the gun with this case. After all, Texas agrees that there is a right to bear in public spaces, but that right can be regulated. They choose to regulate by having no open carry and a licensing scheme for concealed carry.

Where they disagree is on the age of majority and they have made a very strong showing for regulating that age. As far as the 14th amendment is concerned, the historical age is on their side... Unless you take into account how the 14th reads, as amended. Huh? You didn't know it was amended?

Clause 2, section 2 of amendment 14 (as amended) reads:

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male OR FEMALE (19th amendment) inhabitants of such State, being twenty-one EIGHTEEN (26th amendment) years of age, and citizens of the United States, ...
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I would have argued that with the 19th and 26th amendments the gender and age requirements of the 14th were effectively rewritten.

There is also Supreme Court precedent (Roper v. Simmons, 543 U.S. 551 (2005) - Capitol Punishment can not be used on minors/juveniles/infants - those under 18 years) that could have been used to bolster the age of majority argument.

Then the argument becomes that some form of carry must be available to the adult citizens of Texas.

The NRA did none of these things at district court. They can not now bring this up. It is a new argument and not one briefed at the lower court.
 
Perhaps the NRA should restrict itself to doing what it does best -- lobbying and influencing legislation (and legislators).

Leave the SAF to what they do best -- litigating.

I'm an Endowment NRA Life Member. Perhaps I should strongly suggest this concept to the leadership. ;)
 
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.
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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.
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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.
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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.
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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).
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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.
 

Attachments

Just out today, the decision in the case of NRA (was Rebecca Jennings) v. BATF #11-10959, the CA5 panel has affirmed the dismissal of the lower district court.

http://www.ca5.uscourts.gov/opinions/pub/11/11-10959-CV0.wpd.pdf

In addressing the issue of standing, the court reasoned that the plaintiffs did have standing to challenge the law. That's the good news.

The bad news is that while the CA5 adopted the 2-prong approach used by Skoien (CA7), Chester and Maciandaro (CA4), and Marzzarella (CA3), the panel reasoned that the founding term of including infants as prohibited persons was sound. Infants as the court concluded were those children and minors below the age of historical (and common law) majority: i.e. 20 yrs. and below.

If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18-to-20-year-olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18-to-20-year-old’s right to keep and bear arms.
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While earlier, the court gave some notice of the early militia acts, they have not completely ignored the fact that those very same acts demanded that all males aged 18-to-45 be armed. This is addressed in FN #17 (pp 28).

In short, the NRA shot its own foot and gave the court its "out" in the matter of age/majority. The 2A claim was rejected on Intermediate Scrutiny.

Likewise, the Equal Protection clause was rejected on Rational Basis.

Expect the same treatment in the somewhat related case of NRA (was Jennings) v. McCraw (age of Texas CCW holders).

These cases jumped the gun and have provided a rather negative precedence, all because the NRA did not want to wait for the issue of "carry" to be fully formed.
 
In other news, NRA v. McCraw was set for oral arguments, yesterday:

10/24/2012 CASE CALENDARED for oral argument on Monday, 12/03/2012 in New Orleans in the East Courtroom -- PM session. In accordance with our policy, lead counsel only will receive via email at a later date a copy of the court's docket and an acknowledgment form. All other counsel of record should monitor the court's website for the posting of the oral argument calendars.. [12-10091] (SMH)
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I purchased my first gun, a Rem 510, when I was 10. I walked with a friend who was about 12 from Queen City, TX to Atlanta Tx (3mi) by the RR tracks, and bought it for $7.50 from a hardware store. No adult was with me. My grandmother had borrowed the money from a neighbor.
Many boys had a shotgun or .22 by the time they were 12-14.

In that period children did not kill their teachers or school mates for whatever reason, but settled with other boys with fists, and teachers with "Yes maam." The teacher or principal might administer a spanking with a belt or paddle.

But things are not the same now. I don't need any study to tell me that. I recently saw a TV program where youth were playing games. Some were violent.
An 8 year old was asked why he liked to play the games, and his reply was, "Because I get to kill people."

There is a very different mindset today than in my youth, and the movies and games plus the absence of fathers greatly contribute to it. We see the results in the mass shootings and killings of others, and even killing parents and children.

So for that reason I do not object to the age requirements currently in effect.

No need to tell me if a young man is old enough to fight and even die for his country he is old enough to purchase a firearm.
I does not take the same mature judgment to fight as you have been trained and under good leadership, that drinking or owning a gun requires.
Having 28 years of military service, 22 active, does give me some understanding of young men. I realize others of equal or more service might disagree, but that is my view resulting from my personal experience.

Regards,
Jerry
 
"These cases jumped the gun and have provided a rather negative precedence, all because the NRA did not want to wait for the issue of "carry" to be fully formed."
As they taught us in law school, bad facts/clients make bad (appellate) law. Bad precedent keeps on giving exactly what we did not want.
 
In the case of NRA v. BATF, Stephan Halbrook wrote an article to Jurist Magazine, in which he categorizes the mistakes made by that panel: NRA v. BATFE: A Misinterpretation of History

So it seems that the NRA will shortly be filing a petition for an en banc hearing.

We know that the State case, NRA v. McCraw, is scheduled for orals on Monday, Dec. 3rd. But, in the current docket we have:

11/01/2012 Open Document ORAL ARGUMENT panel has requested of the parties the following: supplemental letter briefs on the similarities/distinctions between the issues in the case #'s 12-10091 Natl Rifle Assn of America Inc, et al v. Steven McCraw and 11-10959 - National Rifle Association, et al v. Bureau of Alcohol, Tobacco, et al. The letter briefs should be no more than three pages in length. Miscellaneous (SUPPLEMENTAL LETTER BRIEFS) due for electronic filing by Appellants Brennan Harmon, Rebekah Jennings, National Rifle Association of America, Incorporated, Andrew Payne and Appellee Steven C. McCraw by Friday, November 9, 2012. [12-10091] (SMH)

11/09/2012 Open Document APPELLANTS' SUPPLEMENTAL BRIEF filed by Appellants Mr. Brennan Harmon, Ms. Rebekah Jennings, National Rifle Association of America, Incorporated and Mr. Andrew Payne referencing OA Panel Request [7219701-2]. Date of Service: 11/09/2012 via email - Attorney for Amicus Curiae: Medlock; Attorney for Appellants: Bustos, Cooper, Koukoutchos, Patterson, Thompson; Attorney for Appellees: Davis, Harris, Mitchell [12-10091] REVIEWED AND/OR EDITED.
. # of Copies Provided: 0. Paper Copies of Brief due on 11/19/2012 for Appellants Brennan Harmon, Rebekah Jennings, National Rifle Association of America, Incorporated and Andrew Payne. [12-10091] (Charles Justin Cooper )

11/09/2012 Open Document APPELLEE'S SUPPLEMENTAL BRIEF FILED by Appellee Mr. Steven C. McCraw Appellee's Supplemental Brief Filed Date of Service: 11/09/2012 via email - Attorney for Amicus Curiae: Medlock; Attorney for Appellants: Bustos, Cooper, Koukoutchos, Patterson, Thompson; Attorney for Appellees: Davis, Harris, Mitchell [12-10091] REVIEWED AND/OR EDITED. # of Copies Provided: 0 Miscellaneous deadline satisfied. Paper Copies of Brief due on 11/19/2012 for Appellee Steven C. McCraw. [12-10091] (Bill L. Davis )
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We know that the two cases were similar, only the means of attack differed. The Court has certainly noticed this and has asked for a short, concise supplemental briefing.

The State now argues that the other case is controlling and that oral arguments are no longer necessary.

The Appellants/Plaintiffs argue that the State cannot make the same arguments they made at the other case, as they do issue permits to 18-20 year olds who are military. They briefly state that the other panel was wrong (see Halbrook's article, linked above).

Thanks for this update go to Krucam (MDShooters), as I completely missed it.
 

Attachments

A couple of things that have occurred in regards the 18-20 ye. old buying from an FFL:

11-25-2012 - Petition for rehearing and en banc hearing filed.
01-04-2013 - Response filed by BATF
04-30-2013 - Petition for rehearing denied.​

So the en banc rehearing was denied, but you really should read the dissenting opibnion! The vote was a 8-7 vote, a very narrow loss, Judge Jones' dissent was quite powerful and may well pique the attention of the Supreme Court on an NRA petition for cert.

And yes, I do expect the NRA to file the cert petition. They have until July 29th to file.
 

Attachments

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