IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50641

DOCTOR JENNIFER LYNN GLASS; DOCTOR LISA MOORE; DOCTOR 

MIA CARTER, 

 Plaintiffs - Appellants

v.

KEN PAXTON, in his official capacity as Attorney General of Texas; 

GREGORY L. FENVES, in his official capacity as President, University of 

Texas; PAUL L. FOSTER, JR., in his official capacity as a member of the 

University of Texas Board of Regents; R. STEVEN HICKS, in his official 

capacity as a member of the University of Texas Board of Regents; JEFFREY 

D. HILDEBRAND, in his official capacity as a member of the University of 

Texas Board of Regents; ERNEST ALISEDA, in his official capacity as a 

member of the University of Texas Board of Regents; DAVID J. BECK, in his 

official capacity as a member of the University of Texas Board of Regents; 

ALEX M. CRANBERG, in his official capacity as a member of the University 

of Texas Board of Regents; WALLACE L. HALL, JR., in his official capacity 

as a member of the University of Texas Board of Regents; BRENDA 

PEJOVICH, in her official capacity as a member of the University of Texas 

Board of Regents; SARA MARTINEZ TUCKER, in her official capacity as a 

member of the University of Texas Board of Regents, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before KING, SOUTHWICK, and HO, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2018

Lyle W. Cayce

Clerk

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Three professors from the University of Texas at Austin challenged a 

Texas law permitting the concealed carry of handguns on campus and a

corresponding University policy prohibiting professors from banning such 

weapons in their classrooms. The professors argued that the law and policy

violate the First Amendment, Second Amendment, and Equal Protection 

Clause of the Fourteenth Amendment. The district court dismissed the claims. 

We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Texas enacted Senate Bill 11, which permits certain license 

holders to concealed-carry handguns on college campuses. Tex. S.B. 11, 84th 

Leg., R.S. (2015) (codified as TEX. GOV’T CODE § 411.2031 (West 2017))

(“Campus Carry Law”). Under the law, public colleges may reasonably 

regulate carrying concealed handguns on campus, but the regulations may not 

have the effect of generally prohibiting the exercise of that right. § 411.2031(d1). For example, the law permits public colleges to establish regulations 

concerning the storage of handguns in residence halls. § 411.2031(d). 

The law applies only to concealed-carry license holders. § 411.2031(b). 

To become a license holder (with some exceptions), the applicant must be a 

Texas resident who is at least 21 years old, has not been convicted of a felony 

or certain misdemeanors, is not chemically dependent, has participated in 

handgun training, and has passed a proficiency examination. See §§ 411.172, 

411.174, 411.188. 

As a prerequisite to instituting campus concealed-carry regulations, 

colleges must first consult “with students, staff, and faculty of the institution 

regarding the nature of the student population, specific safety considerations, 

and the uniqueness of the campus environment.” § 411.2031(d-1). Following 

enactment of the Campus Carry Law in 2015, the University of Texas at Austin 

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(the “University”) established a working group consisting of students, alumni, 

staff, and faculty tasked with recommending rules and regulations for 

concealed carry on campus. The working group received thousands of 

comments from the public via an online survey, meetings, and public fora. 

The working group’s final report made numerous recommendations to 

University President Gregory Fenves, who accepted the recommendations in a 

policy document entitled “Campus Carry Policies and Implementation 

Strategies.” On the subject of concealed carry inside classrooms, the working 

group summarized comments received from people representing two opposing 

viewpoints. Those in opposition argued that the possible presence of concealed 

handguns in classrooms would “have a substantial chilling effect on class 

discussion.” Supporters of the Campus Carry Law countered that such fears 

are unfounded, citing data “from the Texas Department of Public Safety 

establishing that license holders, as a group, are extremely law-abiding.” 

Sympathizing with the concerns about chilled speech, the working group 

nonetheless recommended against banning concealed carry inside classrooms

because such a regulation would likely violate the Campus Carry Law by 

effectively prohibiting concealed carry for those traveling to campus to attend 

class. 

The Board of Regents incorporated all but one of the President’s new 

policies into the University’s operating procedures.1 Staff and faculty must 

abide by the University’s policy of permitting concealed carry in classrooms. 

Texas concedes that any University professor who attempts to ban concealed 

carry inside a classroom would be subject to disciplinary action for failing to 

abide by University policies. 

 

1 The Board eliminated the policy that prohibited license holders from keeping a liveround loaded in the chamber of their handguns while on campus. 

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In July 2016, Dr. Jennifer Glass and two other University professors2

filed suit in the Western District of Texas, seeking declaratory relief on the 

constitutionality of the Campus Carry Law and injunctive relief against 

enforcement of the law and University policy. Glass raised three claims. First, 

she argued that the law and policy violate her First Amendment right to 

academic freedom by chilling her speech inside the classroom. Next, she 

argued that the law and policy violate her rights under the Second Amendment 

because firearm usage in her presence is not sufficiently “well-regulated.” 

Finally, she argued that the law and policy violate her right to equal protection 

because the University lacks a rational basis for determining where students 

can or cannot concealed-carry handguns on campus. 

Texas moved to dismiss the claims for lack of standing under Federal 

Rule of Civil Procedure 12(b)(1) and, in the alternative, for failure to state a 

claim under Rule 12(b)(6). In July 2017, the district court dismissed Glass’s 

claims without prejudice. In doing so, however, the district court provided 

analysis only for its dismissal of Glass’s First Amendment claim under Rule 

12(b)(1). Glass timely appealed. 

DISCUSSION

Glass raises two issues on appeal. First, she challenges the district 

court’s holding that she lacks standing to raise her First Amendment claim. 

Second, she argues that because the district court failed to provide any 

reasoning for the dismissal of her Second and Fourteenth Amendment claims, 

the panel should reverse and remand for the district court to consider the 

merits of those two claims. 

 

2 Dr. Glass is a Liberal Arts professor in the Department of Sociology and Population 

Research. Dr. Lisa Moore is a professor of English. Dr. Mia Carter is also a professor of 

English. For simplicity, we will refer only to Glass. 

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I. First Amendment

We start by examining Glass’s First Amendment claim. She argues that 

the district court erred when it held that she lacks standing to challenge the 

Campus Carry Law and University policy on First Amendment grounds. 

We review a district court’s “dismissal for lack of standing de novo.” 

Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017). Under the Constitution, 

one element of Article III’s “Cases” and “Controversies” requirement is that a 

plaintiff must establish standing to sue. Clapper v. Amnesty Int’l USA, 568 

U.S. 398, 408 (2013). “To establish Article III standing, a plaintiff must show 

(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and 

the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be 

redressed by a favorable decision.’” Susan B. Anthony List v. Driehaus, 134 S. 

Ct. 2334, 2341 (2014) (citation omitted) (brackets in original). “The party 

invoking federal jurisdiction bears the burden of establishing these elements.” 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). An injury must be 

“concrete, particularized, and actual or imminent.” Monsanto Co. v. Geertson 

Seed Farms, 561 U.S. 139, 149 (2010). 

We know that “standing cannot be conferred by a self-inflicted injury.” 

Zimmerman v. City of Austin, 881 F.3d 378, 389 (5th Cir. 2018). In the context 

of the First Amendment, however, “government action that chills protected 

speech without prohibiting it can give rise to a constitutionally cognizable 

injury.” Id. at 391. Such governmental action may therefore “be subject to 

constitutional challenge even though it has only an indirect effect on the 

exercise of First Amendment rights.” Laird v. Tatum, 408 U.S. 1, 12–13 (1972). 

Glass in the amended complaint argued her classroom speech would be 

“dampened to some degree by the fear” it could initiate gun violence in the class 

by students who have “one or more handguns hidden but at the ready if the 

gun owner is moved to anger and impulsive action.” In an affidavit she 

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expressed particular concern for “religiously conservative students [who] have 

extreme views,” as well as “openly libertarian students,” whom she “suspect[s] 

are more likely to own guns given their distaste for government.” 

The district court held that Glass and her fellow professors alleged

“standing based on their self-imposed censoring of classroom discussion caused 

by their fear of the possibility of illegal activity by persons not joined in this 

lawsuit.” Glass lacked standing because she alleged a “subjective” First 

Amendment chill that was contrary to the presumption her students “will 

conduct their activities within the law and so avoid prosecution and 

conviction.” O’Shea v. Littleton, 414 U.S. 488, 497 (1974). 

Before analyzing the parties’ arguments on appeal, it is helpful to begin 

with a summary of how the Supreme Court came to recognize the concept of a 

“subjective chill.” In Tatum, the plaintiffs challenged an Army surveillance 

program authorized to gather intelligence about potential domestic civil unrest 

by sending agents to attend public meetings throughout the country. 408 U.S. 

at 6. They argued that “the very existence of the Army’s data-gathering system 

produce[d] a constitutionally impermissible chilling effect upon the exercise of 

their First Amendment rights.” Id. at 13. The “precise connection” between 

the challenged program and the alleged chill was “somewhat unclear;” the 

Court held a number of arguments would be improper, including relying on 

“speculative apprehensiveness that the Army may at some future date misuse 

the information in some way that would cause direct harm” to the plaintiffs. 

Id. at 13 & n.7. To the extent the Tatum plaintiffs had decided to self-censor 

their speech based on such speculation, any allegation of a chilling effect was 

“subjective” in nature. Id. at 13–14. “Allegations of a subjective ‘chill’ are not 

an adequate substitute for a claim of specific present objective harm or a threat 

of specific future harm.” Id. 

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In Amnesty International, various lawyers and journalists challenged a 

provision of the Foreign Intelligence Surveillance Act allowing for the

surveillance of certain foreign individuals. 568 U.S. at 406. The plaintiffs

argued that their speech was chilled because they desired to communicate with 

likely targeted persons but would now decline to do so given the likelihood of 

government surveillance of their conversations. Id. at 406–07. First, the Court 

rejected the circuit court’s application of a test asking whether there was an 

“objectively reasonable likelihood” of the plaintiffs’ communications being 

intercepted in the future. Id. at 410. Such a standard fell short of the 

“requirement that ‘threatened injury must be certainly impending.’” Id.

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The plaintiffs’ 

theory about future interception of their communications relied on a highly 

speculative and “attenuated chain of possibilities” partially based on “the 

decisions of independent actors.” See id. at 410–14. Parties “cannot 

manufacture standing merely by inflicting harm on themselves based on their 

fears of hypothetical future harm that is not certainly impending.” Id. at 416. 

Under the “certainly impending” standard, the Court held that the 

plaintiffs “set forth no specific facts demonstrating that the communications of 

their foreign contacts will be targeted.” Id. at 412 (emphasis added). Whether 

or not the plaintiffs’ communications would be surveilled rested on a “chain of 

contingencies,” some of which were dependent on the discretion or decisions of 

independent actors. Id. at 410. The Government had multiple statutorilyauthorized surveillance methods available for use against the foreign contacts 

— the plaintiffs assumed that the Government would choose the challenged 

provision as the method of surveillance in each instance. See id. at 412–13. 

Additionally, the plaintiffs could “only speculate as to whether [the Foreign 

Intelligence Surveillance Court would] authorize such surveillance.” Id. at 

413. In discussing this chain of contingencies, the Court reiterated its usual 

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“reluctan[ce] to endorse standing theories that require guesswork as to how 

independent decision makers will exercise their judgment.” Id. Therefore, 

demonstrating that only a single link in a chain of contingencies was certainly 

impending did not “satisfy the requirement that any injury in fact must be 

fairly traceable to” the challenged government action. Id. at 411. 

From the outset, it is therefore critical that we identify the harm serving 

as the catalyst for Glass’s self-censorship. If her allegation of harm involves a 

“chain of contingencies” as in Amnesty International, then we must follow the 

Court’s approach and identify each contingency prompting the self-censorship. 

See id. at 410–14. Each link in the chain of contingencies must be “certainly 

impending” to confer standing. See id. 

Glass first argues that there is no question of injury here because the 

University will certainly discipline her if she bans concealed carry in her 

classroom. Given Texas’s concession that consequences would follow if she 

were to ban concealed carry, Glass argues that the inquiry is complete because

harm is certainly impending. Thus, the singular harm at issue is the 

University policy. Tatum and Amnesty International, she argues, are 

distinguishable because whether those respective plaintiffs’ speech would be 

surveilled was purely speculative. 

Texas counters that Glass has only alleged certainty about a single link 

at the end of a chain of contingencies similar to the plaintiffs in Amnesty 

International. Notwithstanding likely future disciplinary action, Glass is 

ultimately deciding to self-censor her speech based on the hypothetical future 

decisions of students in her classroom. Regardless of the likelihood of her being

disciplined for banning concealed carry, her decision to self-censor her speech 

rests on a harm that is not certainly impending. 

By arguing that the harm here is certain based on the University policy 

alone, Glass essentially argues that there is no chain of contingencies giving 

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rise to her self-censorship. Her own description of how she came to self-censor 

her speech, however, reveals that there is indeed a chain of contingencies 

causing her alleged injury. In her amended complaint, Glass describes her 

decision to self-censor as an “inevitable” response to the possibility that a 

“student has the present wherewithal for violent classroom action with a gun.” 

She argues robust classroom debate “inevitably will be dampened to some 

degree by the fear that it could expose other students or [herself] to gun 

violence [and] by the professor’s awareness that one or more students has one 

or more handguns hidden but at the ready if the gun owner is moved to anger 

and impulsive action.” Her self-censorship admittedly arises from her fears

about the behavior of students who are concealed-carrying firearms in class. 

In other words, Glass’s fear of potential violent acts by firearm-carrying 

students prompts her to self-censor by avoiding topics she worries might incite 

such violence or intimidation, which would be unnecessary but for the law and 

policy that prevent her from banning firearms in her classroom. 

Glass’s allegation of harm contains at least two contingences: (1) harm 

from concealed-carrying students incited by classroom debate and (2) harm 

from University disciplinary action. Each contingency must be “certainly 

impending.” See id. The parties agree that disciplinary action would follow an 

attempt to ban concealed carry in her classroom. Whether Glass has standing

therefore turns on whether the alleged harm threatened by concealed-carrying 

students is “certainly impending.” 

Texas analogizes to the layers of speculation in Amnesty International, 

arguing that Glass’s fear of harm rests on the assumption students with 

concealed-carry licenses, as independent decision-makers, are virtually certain 

to illegally use their firearms to intimidate, threaten, or commit violence in 

response to controversial classroom discussion. Glass argues that her fears are 

neither speculative nor subjective. She challenges the district court’s 

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conclusion that she failed to present concrete evidence to substantiate her fears 

about students. First, she cites to a “broader community of views” which 

believes that the presence of guns in the classroom will chill professors’ speech. 

This community of views includes multiple University faculty members and 

multiple national educational organizations. Second, she cites to various 

academic studies discussing a so-called “weapons effect.” According to Glass, 

“[t]hese studies conclude that the hidden presence of guns does threaten 

disruption of classroom activities, increases the likelihood that violence will 

erupt in the classroom, and intimidates non-carrying students — and 

undoubtedly professors, too.” 

The problem with Glass’s argument is that none of the cited evidence 

alleges a certainty that a license-holder will illegally brandish a firearm in a

classroom. Elaborating on the academic studies, for example, the amici 

American Association of University Professors and the Giffords and Brady 

Centers to Prevent Gun Violence argue that the “weapons effect” demonstrates

“the tendency of provoked individuals to behave aggressively when in the 

presence of actual guns,” meaning that “carrying a concealed weapon can 

increase aggressive behavior by the person carrying.” Even assuming the 

validity of the weapons effect, however, a tendency toward increased 

aggression falls short of certainly impending aggression. Ultimately, whether 

concealed-carrying students pose certain harm to Glass turns on their 

independent decision-making. Because she fails to allege certainty as to how 

these students will exercise their future judgment, the alleged harm is not 

certainly impending. 

Glass objects to a plain application of the “certainly impending” standard 

from Amnesty International, arguing that it sets the bar impossibly high. 

Instead, she asks us to confer standing on the basis that her fears are 

“objectively understandable and reasonable.” We cannot adopt this standard 

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because it was already rejected in Amnesty International. There, the Court 

rejected the Second Circuit’s holding that the plaintiffs had standing because 

their injury was not “fanciful, paranoid, or otherwise unreasonable.” Id. at 

416. Such a standard, the Court held, “improperly waters down the 

fundamental requirements of Article III.” Id. Parties’ “contention that they 

have standing because they incurred certain costs as a reasonable reaction to 

a risk of harm is unavailing — because the harm they seek to avoid is not 

certainly impending.” Id. 

Contrary to Glass’s argument, Amnesty International reiterated that 

standing is not impossible in every instance in which independent decisionmaking comes into play. An example of the Court’s willingness to depart from 

its “usual reluctance” was Meese v. Keene, 481 U.S. 465 (1987). In Keene, the

plaintiff, a California State Senator, argued that the Department of Justice’s

decision to label three films as “political propaganda” violated the First 

Amendment. 481 U.S. at 467. Under the Foreign Agents Registration Act of 

1938, the Department of Justice labeled three Canadian documentaries as 

“political propaganda” because they could be “reasonably adapted” to 

“influence the foreign policies of the United States.” Id. at 470. In order to 

exhibit the films in public, the State Senator was required to provide a copy of 

the material to the Attorney General along with a report “describing the extent 

of the dissemination.” Id. In addition, he was required to disclose that by 

showing the films, he was acting as the agent of a foreign principal. Id. at 470–

71 & n.6. 

The Court began by noting that “[i]f Keene had merely alleged that the 

appellation deterred him by exercising a chilling effect on the exercise of his 

First Amendment rights, he would not have standing to seek its invalidation.” 

Id. at 473. Instead, Keene alleged that the future reputational harm 

prompting his self-censorship was certain, and not merely possible. See id. In 

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support, he provided detailed affidavits citing public opinion polls showing that 

approximately one in two voters would be less inclined to vote for a candidate 

who showed a foreign film labeled as political propaganda by the Department 

of Justice. Id. & n.7. 

Glass analogizes to Keene by arguing that the same rationale confers 

standing here. She misreads Keene. Although Keene’s allegation of harm 

involved the contingency of individual voter decisions, he nonetheless alleged 

certainty about voter decision-making based on supporting affidavits and 

opinion polling. See id. at 473. Indeed, he alleged that “if he were to exhibit 

the films while they bore such characterization, his personal, political, and 

professional reputation would suffer and his ability to obtain re-election and 

to practice his profession would be impaired.” Id. (emphasis added) (citation 

omitted). By contrast, Glass alleges reasonable probability of future harm from 

concealed-carrying students. According to her, she is “faced with the 

knowledge that there is a reasonable probability that sitting at one of the desks 

in [her] enclosed classroom is a young student” who believes that a “gun can be 

used when the appropriate circumstances present themselves.” 

Glass further argues that a denial of standing would improperly fail to 

construe the factual allegations of her complaint in her favor. See Lujan, 504 

U.S. at 561. Her argument is misplaced for the same reason that Keene is 

distinguishable. The issue here does not concern the weight given to her 

factual allegations, but rather the absence of any allegation of certainty about 

the students’ future decisions. Keene alleged certainty about the voters’ future 

decisions based on polling, which empowered him to allege certainty about 

future reputational harm. Keene, 481 U.S. at 473. Construing the factual 

allegations of Glass’s complaint in her favor, she nonetheless fails to allege 

what is required under Amnesty International. The requirement is that harm 

from concealed-carrying students be certainly impending. 

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The same concerns fueling the Court’s “usual reluctance” in Amnesty 

International are present here. Although Glass’s claim centers on the First 

Amendment, her standing arguments invoke notable separation of powers 

concerns. By adjudicating claims for which the alleged harm is not certainly 

impending, federal courts risk disregarding their constitutional mandate to 

limit their jurisdiction to actual cases and controversies and thereby avoid the 

issuance of advisory opinions. 

Glass cannot manufacture standing by self-censoring her speech based 

on what she alleges to be a reasonable probability that concealed-carry license 

holders will intimidate professors and students in the classroom. The district 

court did not err. Glass lacks standing to bring her First Amendment claim. 

II. Second and Fourteenth Amendment claims

In her amended complaint, Glass raised three claims challenging the 

Campus Carry Law and University policy. As we just discussed, Texas moved 

to dismiss Glass’s First Amendment claim for lack of standing under Rule 

12(b)(1). Texas also moved to dismiss the Second and Fourteenth Amendment 

claims for failure to state a claim under Rule 12(b)(6). The district court 

dismissed all three claims without prejudice but only provided analysis for its 

dismissal of her First Amendment claim under Rule 12(b)(1). Glass argues we 

should reverse and remand the dismissal of her Second and Fourteenth 

Amendment claims for the district court to consider. Texas argues we should 

reach those issues and affirm their dismissal. We therefore analyze whether 

we should reach Glass’s remaining claims on appeal. 

Glass relies on precedent stating that “[i]t is the general rule, of course, 

that a federal appellate court does not consider an issue not passed upon 

below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). At the same time, “[t]he 

matter of what questions may be taken up and resolved for the first time on 

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appeal is one left primarily to the discretion of the courts of appeals, to be 

exercised on the facts of individual cases.” Id. at 121. Although the Supreme 

Court has declined to state a general rule as to how appellate courts should 

exercise their discretion, “there are circumstances in which a federal appellate 

court is justified in resolving an issue not passed on below, as where the proper 

resolution is beyond any doubt . . . or where ‘injustice might otherwise result.’” 

Id. (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)). When the only 

remaining issues are purely legal questions that were briefed below, we have 

been willing to resolve those issues on appeal to avoid a waste of judicial 

resources. See Halbert v. City of Sherman, 33 F.3d 526, 530 (5th Cir. 1994).

Glass describes our traditional approach as categorically rigid, citing to 

a case where we declined to “consider an issue passed over by the district court” 

absent special circumstances. Man Roland, Inc. v. Kreitz Motor Express, Inc., 

438 F.3d 476, 483 (5th Cir. 2006). That opinion is not a blanket prohibition. 

The new issue there concerned an unaddressed cross-motion for summary 

judgment, meaning the district court had not “considered any of [the movant’s] 

arguments with the burdens and presumptions favoring . . . the nonmovant.” 

Id. Regardless, Man Roland’s meaning must be analyzed consistently with 

preexisiting precedential rulings such as Halbert, in which we recognized our 

option to consider purely legal issues for the first time on appeal. See 33 F.3d 

at 530. Here, Glass’s remaining claims present purely legal questions that 

were briefed to the district court. In stewardship of judicial resources, we 

exercise our discretion to reach all of Glass’s claims. 

We review de novo the legal question of whether Glass’s allegations state 

a constitutional claim. See Caine v. Hardy, 943 F.2d 1406, 1415 (5th Cir. 1991) 

(en banc). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. “[T]he tenet that a court must accept as true all of the allegations contained 

in a complaint is inapplicable to legal conclusions.” Id. We turn now to Glass’s 

Second Amendment claim. 

a. Second Amendment

Glass argues that the Campus Carry Law and University policy violate 

the Second Amendment because firearm usage in her presence is not 

sufficiently “well regulated.” The Second Amendment states: “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. The 

Supreme Court held that the Second Amendment “guarantee[s] the individual 

right to possess and carry weapons in case of confrontation.” District of 

Columbia v. Heller, 554 U.S. 570, 592 (2008). The Court also held that 

“individual self-defense is ‘the central component’ of the Second Amendment 

right.” McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (citation omitted) 

(emphasis in original). 

Glass contends that to the extent the Second Amendment recognizes an 

individual right to carry firearms, persons not carrying arms have a right to 

the practice being well-regulated. Glass’s argument collapses the distinction 

between the Amendment’s two clauses: the militia-focused prefatory clause 

and the operative clause. In Heller, the Court relied on text, history, and 

tradition to interpret the prefatory clause as “announc[ing] the purpose for 

which the right was codified: to prevent elimination of the militia.” Heller, 554 

U.S. at 599. Codification of the right occurs in the operative clause. Id. at 579. 

Notwithstanding this distinction, Glass advocates an “independent meaning” 

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of the prefatory clause which recognizes “a constitutional right not to have the 

government force [individuals] into allowing guns in their professional 

presence as a condition of public employment unless gun possession and use 

are ‘well-regulated.’” “Like it or not,” Glass argues, “there is specific 

constitutional language that premises the right, whatever its extent, on the 

use of guns [as] ‘well-regulated.’” She argues that the prefatory clause places 

a “condition” on the individual right. 

Her “admittedly fresh” take on the Second Amendment therefore turns 

on the proper interpretation of the Amendment’s prefatory clause. In support, 

Glass cites to a line in Heller where the Court interpreted “well-regulated” as 

“the imposition of proper discipline and training.” 554 U.S. at 597. She further 

relies on one of our opinions where we stated that “gun use and gun control 

have been inextricably intertwined” such that “an expectation of sensible gun 

safety regulation was woven into the tapestry of the [Second Amendment] 

guarantee.” National Rifle Ass’n v. BATFE, 700 F.3d 185, 200 (5th Cir. 2012). 

Glass’s argument is foreclosed by Heller. In two separate locations in the 

majority opinion, the Court held that the Second Amendment’s prefatory 

clause does not limit its operative clause: “The [prefatory clause] does not limit 

the [operative clause] grammatically, but rather announces a purpose.” 554 

U.S. at 577. Indeed, the “prefatory clause does not limit or expand the scope 

of the operative clause.” Id. at 578. The Amendment’s first clause “is prefatory 

and not a limitation on the amendment itself.” Hollis v. Lynch, 827 F.3d 436, 

444 (5th Cir. 2016). Because the operative clause provides the codification of 

the individual right, the prefatory clause cannot “limit or expand the scope” of 

the individual right. Heller, 554 U.S. at 578. 

The prefatory clause does not limit the scope of the individual right

codified in the operative clause. She has failed to state a claim under the 

Second Amendment. 

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b. Equal protection

Finally, Glass argues that the Campus Carry Law and University policy 

violate her right to equal protection under the Fourteenth Amendment because 

the University lacks a rational basis for determining where students can or 

cannot concealed-carry handguns on campus. 

“The equal protection clause essentially requires that all persons 

similarly situated be treated alike.” Mahone v. Addicks Util. Dist.of Harris 

Cnty., 836 F.2d 921, 932 (5th Cir. 1988). The parties do not dispute that 

rational basis review applies because the professors are not members of a 

protected class nor does the alleged classification infringe a fundamental 

constitutional right. See Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015). 

Under this standard, a legislative classification “must be upheld against equal 

protection challenge if there is any reasonably conceivable state of facts that 

could provide a rational basis for the classification.” FCC v. Beach Commc’ns, 

Inc., 508 U.S. 307, 313 (1993). Parties attacking the presumption of validity 

extended to legislative classifications “have the burden ‘to negative every 

conceivable basis which might support it.’” Id. at 315 (citation omitted). 

When applying rational basis doctrine to a dismissal for failure to state 

a claim, a legislative classification must be treated as valid “if a court is able 

to hypothesize a legitimate purpose to support the action.” Mahone, 836 F.2d 

at 934. “[T]he task of hypothesizing necessarily renders less important the 

actual reasons which the state may have had for making the challenged 

classification.” Id. at 936. “[W]hen truth is not the issue, we can understand 

how using discovery procedures to develop facts showing the state’s true reason 

for its actions could be, for all practical purposes, both inefficient and 

unnecessary.” Id. Accordingly, “in some cases it makes sense to use a motion 

to dismiss as the vehicle through which to address the viability of the [equal 

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No. 17-50641

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protection] claim.” Id. This is especially true when “‘it takes but momentary 

reflection’ to arrive at a purpose that is both legitimate beyond dispute and 

rationally related to the state’s classification.” Id. (quoting Holt Civic Club v. 

City of Tuscaloosa, 439 U.S. 60, 74 (1978)). 

In her amended complaint, Glass alleges that “[t]here is no rational basis 

for the division in the state’s policies between where concealed carry of 

handguns is permitted and where it may be prohibited.” She does not 

challenge Texas’s purported government interest: public safety and selfdefense. Instead, she argues that there is no rational basis for Texas to allow

private universities to ban concealed carry but not public universities. In 

addition, she argues that there is no rational basis for the University to allow

concealed carry in classrooms while simultaneously prohibiting the practice in 

other campus locations such as faculty offices, research laboratories, and 

residence halls. 

Texas argues that simple explanations provide the needed rational basis. 

First, the Campus Carry Law distinguishes between public and private 

universities in order to respect the property rights of private universities. 

Second, public safety and self-defense cannot be achieved if concealed carry is 

banned in classrooms because attending class is a core reason for students to 

travel to campus. Texas argues that public safety and self-defense can still be 

achieved if concealed carry is banned in less-frequented areas such as faculty 

offices and research laboratories. 

Glass ultimately fails to address Texas’s arguments concerning rational 

basis. Instead she simply argues that the prohibited concealed-carry zones are 

an “inexplicable hodge-podge.” She argues that a single sentence from our 

precedent requires us to allow her claim to proceed to discovery to present the 

evidence necessary to fulfil her burden. There, we stated that “although 

rational basis review places no affirmative evidentiary burden on the 

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No. 17-50641

19

government, plaintiffs may nonetheless negate a seemingly plausible basis for 

the law by adducing evidence of irrationality.” St. Joseph Abbey v. Castille, 

712 F.3d 215, 223 (5th Cir. 2013). We made that statement in response to a 

state’s purported rational basis that rose to the level of “fantasy.” Id. 

Louisiana enacted a law prohibiting the sale of caskets to anyone except 

funeral directors. Id. at 226. The law was irrational: “Louisiana does not even 

require a casket for burial, does not impose requirements for their construction 

or design, does not require a casket to be sealed before burial, and does not 

require funeral directors to have any special expertise in caskets.” Id. 

Accordingly, the panel could not conceive of a single rational basis connecting 

public health and the state law. Id. 

The Supreme Court has held that when conceiving of hypothetical 

rationales for a law, the assumptions underlying those rationales may be 

erroneous so long as they are “arguable.” Beach Commc’ns, 508 U.S. at 320. 

Here, Texas’s rationales are arguable at the very least. Glass fails to meet her 

burden requiring that she “negative every conceivable basis which might 

support” Texas’s purported rational basis. Id. at 315 (citation omitted). 

AFFIRMED. 

 Case: 17-50641 Document: 00514603748 Page: 19 Date Filed: 08/16/2018