### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10091

NATIONAL RIFLE ASSOCIATION OF AMERICA, INCORPORATED; REBEKAH JENNINGS; BRENNAN HARMON; ANDREW PAYNE, Plaintiffs - Appellants

v. STEVEN C. MCCRAW, in his official capacity as Director of the Texas Department of Public Safety, Defendant - Appellee

Appeal from the United States District Court f or the Northern District of Texas

Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: This case presents a constitutional challenge t o Texas’s statutory scheme, which does not allow 1 8-20-year-old adults to carry handguns in p u b l i c
. We
must hold that the state s c heme w i thstands this challenge, b ecause we are bound b y a prior p anel o pinion of this court, NRA v
. Bureau of Alcohol, Tobacco, Firearms, & Explosives , 700 F.3d 185 (5th Cir. 2012) (hereinafter BATF ). FACTS AND PROCEEDINGS Statutory Framework U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D May20, 2013 Ly l e W . Cay ce Clerk Case: 12-10091 Document: 00512247871 Page: 1 Date Filed: 05/20/2013No. 12-10091

I n 1 871, the State of Texas first prohibited individuals from carr y i n g h a n d guns in p ublic. The c urrent v ersion of this proscription, codified in 1973 , provides t h a t a “person commits a n offense i f the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun . . . if the person is n ot: (1) on the person’s own premises or p r e m i s e s u n der the person’s control; or (2) inside of o r directly en route to a motor vehicle or watercraft that i s owned by the person or u nder the per s o n ’ s c ontrol.” T E X

. P E N A L C O D E § 46.02(a )

. This crime is p unishable by imprisonment for up to a year and a fine of up to $4,000. Id. § 46.02(b); see id. § 12.21. In 1995, T exas created an exception to this g e n e ral criminal prohibition when i t enacted the concealed licensing program. The program allows persons who ac q u i r e c oncealed carry licenses to carry concealed handguns in public. T E X

. G O V ’ T C O D E § 4 11.1 7 2 (a). Licenses cost $140 each and applicants must submit their fingerprints and their criminal, psychiatric treatment, a n d d r u g treatment histories. Id. § 411.174. They m ust also successfully complete a 10- hour course, which includes both a written exam and a practical component to de m onstrate p roficiency. Id. § 411.174(a)(7); see id. § 411.188. Moreover, in order to qualify for a license, an applicant must, among o ther things, be “at least 21 y ears of age” and “fully qualified u nder applicable f ederal and s tate l a w to purchase a handgun.” 1 Id. § 411.172(a). During legislative debate o n t he concealed licensing p rogram, several legislators a dv o c a t e d f o r t h e 2 1

- y e a r - o l d m i n i m u m - a g e r e q u i r e m e n t b e c a u s e they believed that younger individuals were generally not mature enough to carry and handle handguns i n public. In 2005, Texas r e laxed the l icensing requirements to a llow p ersons under 21 who had military t raining to apply for

1 U nd er a f

ed eral s tatute recently up held as cons titutional by this court, 18 U

. S. C. § 922(b ) ( 1 ) , f

ed erally licens ed f

irearm s d ealers m ay not sell hand guns to p ers ons und er 21. BA TF , 700 F. 3d at 212. Texas law , how ever, p erm its thos e 18 and over to buy hand guns
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concealed handgun licenses, id. § 4 11.172(g), because this group’s “extensive training in handling weapons” mitigated the legislature’s concern that persons under 21 generally were not sufficiently m ature to handle guns r e s p onsibly. Nevertheless, Texas’s s t a tutory scheme in effect prohibits the majority of 18-20- year-olds from carrying a h andgun in public: the general c riminal provision sets

as the d efault rule that Texans may not carry a handgun in public, and the civil licensin g law makes 18-20-year-olds ineligible for the concealed handgun license exception to this default rule. 2 Procedural Background Three i ndividual plaintiffs, ages 18-20, and t he N ational Rifle A ssociation (“NRA”), on behalf o f its 18-2 0

- y e a r -old members, brought this constitutional challenge t o Texas’s constructive ban on 18-20-year-olds carrying handguns in public. Each of the three individual plaintiffs claim that they w ish t o carry a handgun in public for self-defense but are unable to apply for one solely because of their age. While this appeal w as pending, however, two of t h e m , R e b e kah Jennings and Brennan Harmon, turned 21. The third, Andrew P ayne, will not turn 21 until July 2013. Following discovery, the parties filed cross-motions for summary judgment. The district court denied plaintiffs’ m otion and granted the s t a t e ’ s motion. The c ourt first a dd r e s s e d t h e question o f s tanding. It concluded that the individual p laintiffs had standing to challenge the licensing law, because they had presented evidence that, except for their age, they qua l i fied for concealed h andgun licenses. Moreover, they had each alleged that, but for their inability to get a l icense, they would carry a handgun in public for self-defense

. But the court h e ld that plaintiffs lacked standin g t o c h a llenge the general criminal provision b ecause t hey had n o t a l leged that they wanted t o carry

2 Fo r clarity , w e re fe r to § 46.02 as the “ g e ne ral criminal pro v is io n,” § 4 11.172 as the “lice ns ing law ” o r “lice ns ingpro g ram,” and the tw o s tatute s , w o rkingto g e the r, as the “Te x as s che me .” 3 Case: 12-10091 Document: 00512247871 Page: 3 Date Filed: 05/20/2013No. 12-10091

handguns without a license, which the court conclud e d was necessary to show the credible threat of p rosecution under the law required f or Article III standing. The court recognized t h a t i t need not address w hether the NRA had associational standing, since “[o] n c e a c o u rt has determined that at least one plaintiff has standing, i t n eed not consider w heth e r t h e r e m a i n i n g p l a i n tiffs have standing to maintain the suit.” Turning to the merits, t he district court upheld the handgun licensing law

on the ground that “the Second Amendment does not confer a right that extends beyond the home.” Thus, a prohibition on carrying a handgun in public did not infringe o n plaintiffs’ Second A mendment r ights. And, because neither age nor non-military status i s a s uspect classification, the court applied rational basis scrutiny to the Texas law and rejected plaintiffs’ equal protection claim. Plaintiffs appeal. STANDARD OF REVIEW This court reviews q uestions of standing de novo
. NAACP v. City of Kyle, Tex. , 626 F.3d 233, 2 36 (5th Cir. 2010). Th e p arties seeking access to federal
court bear the burden of establishing their standing. Time W arner C able, Inc.

v. Hudson , 667 F.3d 630, 635 (5th Cir. 2012). The court “review[s] a district court’s grant of summary j udgment de novo , applying the same standard as did the district court.” Stults v. Conoco, Inc. , 76 F.3d 651, 654 (5th C ir. 1996). We “may affirm summary j udgment on any l egal ground raised below, even if it was not the basis for the district court’s decision.” P e rformance A utopl e x I I Ltd. v. Mid-Continent Cas. Co. , 322 F.3d 847, 853 ( 5th Cir. 2003). We examine de novo the constitutionality of state statutes. Ortiz v. Quarterman , 504 F.3d 492, 496 (5th Cir. 2007). DISCUSSION Plaintiffs a ppeal the district court’s decision that they lack standing to challenge Texas’s general criminal p rovision barring persons from c arrying

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handguns in public. They also claim that the district court erred i n ruling that the Tex a s scheme regulating persons carrying handguns in public does not violate the Second Amendment rights of, or deny equal protection to, nonmilitary or non-veteran 18-20-year-olds. Plaintiffs contend that 18-20-year-olds have full Second Amendment rights and that the fundamental right to carry a handgun for self-defense extends to carrying a h andgu n i n public. Texas opposes these contentions and also alleges that p lain t i f f s Jennings’s and H armon’s claims are moot because they are now 21 years old. A. Mootness Although all parties agree that the claims raised by P ayne are not moot, Texas argues that the court should dismiss Jennings’s and Harmon’s claims as moot because both are now 21. 3 If a claim is moot, i t “ p r esents no Article III c ase or c o ntroversy, and a court has no constitutional j urisdiction to resolve the issues it presents.” Goldin

v
. Bartholow , 166 F.3d 7 10, 7 17 (5th Cir. 1999). A claim b ecome s m o o t w h e n “the parties lack a l egally cogniz a b le interest in the outcome.” P owell v. McCormack , 395 U.S. 486, 4 96 (1969). “Mootness in this context is t he doctrine of standing s et i n a time frame: T he requisite personal interest t hat m ust exist
at the commencement o f the litigation (standing) must continue throughout its

3 The partie s als o ag re e t hat the dis trict co urt w as co rre ct that it ne e d no t addre s s the NRA’s
as s o ciatio nal s tandingbe caus e M assachusetts v. EPA ho lds that “[o ]nly o ne o f the pe titio ne rs ne e ds to hav e st a n d i n g t o pe rmit us t o co ns ide r the pe titio n fo r re vie w.” 549 U.S. 497, 518 (2007); see also Bo w sher v. Sy nar , 478 U.S. 714, 721 (1986) (ho lding that b e caus e it w as cle a r that unio n me mbe rs had
s t anding , the Co urt ne e d no t co ns ide r the s tanding is s ue as to the Unio n o r Me mbe rs o f C o ng re s s w ho
w e re partie s to the cas e ). Plaintiffs co nte nd that the co urt ne e d no taddre s s Je nning s ’s and Harmo n’s
s t anding fo r the s am e r e as o n. W e dis ag re e
. While EPA and Bo w sher g iv e co urts lice ns e to avo id
co mple x q ue s t io ns of s t anding in cas e s w he re the s tanding of o the rs make s a cas e j us t iciable , it do e s no t fo llo w that the s e cas e s pe rmit a co urt t hat kno w s that a party is w itho ut s t anding to no ne the le s s allo w that party to participate i n the cas e
. Cf. Nat’l So lid Waste Mg mt. A ss’n v. Pine B elt Reg ’l So lid Waste Mg mt. A uth. , 389 F.3d 491, 501 n.18 (5th Cir. 2004) (“[W]he n o ne o f multiple co -partie s rais ing the s ame claims and is s ue s pro pe rly has s tanding , w e do no t ne ed to verify the inde pe nde nt s tanding o f the o the r co -plaintiffs .” (e mphas is adde d)). 5 Case: 12-10091 Document: 00512247871 Page: 5 Date Filed: 05/20/2013No. 12-10091

existence (mootness).” Goldin , 166 F.3d at 717 (citation and quotation marks omitted). Our court’s recently issued opinion i n B A TF controls this issue. In that

case, the same plaintiffs a ppealing here brought constituti o n a l challenges against a federal law p rohibiting federally licensed f irearms dealers from selling handguns to persons under 2 1 years of a ge. 4 BATF , 700 F.3d at 188. Addressing the standing of the n ow-21-year-old plaintiffs Jennings and H armon, the court held that, “[b]ecause t hey have a ged out of the demographic group a f f e c t e d by the b an at bar, the i ssues on appeal are moot as t o them.” Id. at 191. The court then concluded that “Payne and the NRA, o n b e h a l f of its u nder-21 members, have standing.” Id. We reach the same conclusion. Jennings’s and Harmon’s claims are moot, a s these t wo plaintiffs h a v e a g e d out of the 18-20-year-old
range. B. Standing Although the remaining plaintiffs c ontinue to have the requisite personal interest to pursue t h e i r c l aims, their claims m ust a lso satisfy the injury requirement f

or Article III standing. T he d istrict court determined that plaintiffs had such standing to challenge the concealed handgun licensing law, but concluded that p laintiffs lacked s t anding to challenge the g eneral c riminal provision b anning carrying a handgun in public. It came t o t h i s c o nclusion based on t he fact that plaintiffs did not alle g e “that they desire to carry a handgun openly ( a s o p p o s e d to concealed), concealed without a license, or i n a

manner inconsistent with the limitations governi n g licensed concealed carry.” According t o the court, “because the possession of a validly issued [license] excepts the lic e n s e h older from p rosecution

. . . , Plaintiffs have not

4 Be caus e t he s tatut e challe ng e d in BA TF w a s a fe de ral s tatute , the plaintiffs bro ug ht the ir claims dire ctly unde r the Se co nd Ame ndme nt and thro ug h the e qual pro te ctio n co mpo ne nt o f the Fifth Ame ndme nt. 6 Case: 12-10091 Document: 00512247871 Page: 6 Date Filed: 05/20/2013No. 12-10091

demonstrated a credible threat of prosecution” necessary to show i n jury. Both plaintiffs and the state argue that the court erred in this conclusion. “A plaintiff who challenges a s tatute must d emonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United F arm Workers Nat. Union , 4 42 U.S. 289, 298 (1979). When asking a federal court to engage in pre-enforcem e n t r eview of a criminal statute, a plaintiff need not v iolate the statute; he may meet this injury requirement by showing “an intention to engage in a course of conduct a rguably affected with a constitutional interest, but proscribed b y a statute, a nd

. . . a credible threat of prosecution thereunder.” Id. The district court erred in i ts standing analysis. P laintiffs maintain that “Texas must permit them some manner of exercising their f undamental right to
carry a handgun.” 5 The criminal provision forbids them from carrying a h a ndgun altogether. The licensing program declines t o grant their age gr o u p , specifically, a l imited exception in the form of a c o ncealed handgun l icense from this alleged burden on t heir Second Amendment rights. Thus, both laws, as part of a statu t o r y scheme, combine to deprive plaintiffs of their alleged constitutional rights. While striking down the age restriction in the concealed handgun licensing l aw wou l d g r a n t the plaintiffs the relief t hey s eek – some

ma nner in w hich to legally c arry a handgun i n p ublic – and lift the threat of prosecution, so would inv a l i dation of the general criminal provision alone,

5 Te x as arg ue s t hat “plaintiffs ’ s o le co nte ntio n” is that the y are co ns titutio nally e ntitle d to apply fo r co nce ale d handg un lice ns e s
. Altho ug h t he s t ate co nce de s that plaintiffs hav e s tanding , it as s e rts that “plaintiffs ’ failure t o s uppo rt the ir co ns titutio nal challe ng e to s e ctio n 46.02’s pro hibitio ns on unlice ns e d
o r e xpo s e d handg un carriag e s ho uld le ad the Co urt to rej e ct the ir claims o n the me rits ” afte r the co urt de te rmine s that the plaintiffs do hav e s tanding to challe ng e the c r i m i n a l p ro v is io n. Te x a s ’s unde r s t a n ding , ho w e v e r, is plainly re fute d by plaintiffs ’ Se co nd A me nde d Co mplaint, in w hich the y alle g e t hat the lice ns ing pro vis io n a nd criminal pro v i s io n, in co nce rt, “pro hibit law -abiding adults be tw e e n the ag e s o f e i g hte e n and tw e nty , w ho are no t o r hav e no t be e n in the U n i t e d State s arme d fo rce s , fro m carry ing a handg un o utside the perso n’s o wn premises o r auto mo bile

. ” (Emphas is adde d.) Plaintiffs are cle arly co nte nding that the tw o s tatu t e s unco ns t itutio nally pre ve nt the m fro m carry ing a handg un in public, no t me re lythat the lice ns ingpro v is io n bars the m fro m apply i ng fo r a lice ns e
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because then p laintiffs could carry guns openly, even if they could not obtain a license to carry them concealed. Plaintiffs, t herefore, have standing to challenge both l a ws together, because together t hey b ar 18-20-year-olds f r o m c arrying handguns in public in Texas. C. Second Amendment claim Plaintiffs contend that the district c ourt erred i n upholding this Texas scheme, because such a b ar violates the Second Amendment. They argue that

a scheme t hat bans 18-20-year-olds from carrying h andguns i n p u b lic, either openly o r concealed, is an unconstitutional infringement on 18- 2 0-year-olds’ right to use handguns in self-defense. Texas responds that i ts scheme is the type of lon g s t anding prohibition that the Supreme Court recognized a s l awful in District of Columbia v. Heller , 554 U.S. 570 (2008). The Second A mendment states that “ [a] w e ll regulated Militia, being
necessary to the s ecurity of a free State, t he right of the people to keep and bear Arms, shall n ot be infringed.” U.S. C O N S T

. amend. II. 6 In He l ler , the S upreme Court struck d own a D.C. law that banned handgun possession and required all f i r e a r m s i n the h o me to be kept in an inoperable state, because t h e statute violated this amendment. 554 U.S. at 635. After conducting an analysis “of both
text and history,” id. at 595, the C ourt recognized that t he Second Amendment “guarantee[s] the individual right to p ossess and c a r r y w e a pons in case of confrontation,” id. at 592. The “ central component of [this] right” i s self-defense. Id. at 599. Because the law at issue in Heller “bann[ed] from t he home the most preferred firearm in the nation to keep and use for protection of one’s home and family, [ it] fail[ed] constitutional muster.” I d. at 628-29 (citation and quotation marks omitted).

6 The Supre me Co urt has he ld that the Se co nd Ame ndme nt rig ht is fully applicable to the s tate s thro ug h the Fo urte e nth Ame ndme nt. McD o nald v. City of Chicag o , 130 S. Ct. 3 020, 3026 (2010). As o f the Te x as no te s , the Fo urte e nth Ame ndme nt its e lf re fe re nce s the ag e of tw enty -o ne , no t e ig hte e n. See U.S. C O NST

. ame nd. X IV, § 2. 8 Case: 12-10091 Document: 00512247871 Page: 8 Date Filed: 05/20/2013No. 12-10091

Despite holding t hat the statute before it w as unconstitutional, the Court expressly noted that “the right was not unlimited, just as the First Amendment's right of free s peech was not.” Id. at 595. It recounted that, historically, “[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained th a t t h e r ight was n ot a right t o keep a nd c a rry any weapon whatsoever i n a ny manner wh a t soever and for whatever p urpose.” Id. at 626. For example, the Court said, “ the majority of the 19th-century courts to consider the question held that prohibitions o n c a rrying concealed weapons were lawful under the Second Amendment or state analogues.” Id. It w ent on to make clear that “nothing in our o p inion should b e taken to cast doubt on [ such] longstanding prohibitions.” Id. It then “identif[ied several m o r e o f ] these presumptively lawful regulatory measures [] as examples,” which i ncluded “prohibitions on the possession of firearms by felons a nd the mentally ill, or laws forbidding the carrying of firearms in sensitive p laces such as s chools and gove r n m ent buildings, or laws i mposing conditions and qualifications on the commercial sale of arms.” Id. at 626-67 & n.26. Following Heller and McDonald v. C ity of Chicago , this c ircuit adopted a two-step inquiry to evaluate whether a f irear m s r e g u lation comports w ith the Second Amendment: [T]he first inquiry is whether the conduct at issue fall s w ithin t h e scope o f the S econd A mendment right.

. . . I f t h e c h a l lenged law burdens c onduct that falls outside the Second Amendment’s s cope, then t he l aw passes constitutional mu s ter. If the law burdens conduct that f

alls within the Second Amendment’s scope, we then proceed to apply the appropriate l evel o f means-ends scrutiny. We agree with the prevailing view t hat the appropriate level o f scrutiny depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right. BATF , 700 F.3d at 194-95 (citations and quotation marks o mitted). We proceed to evaluate the Texas scheme according to this test.

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1. Step one The first q u estion is w hether t he challenged conduct is even w ithin the
scope of the S econd A mendment right. Here, t h e T e xas statutes collectively prohibit carrying a h andgun in public by 18-20-year-olds. This court has held tha t s tatutes enacted to safeguard the public using age-based restrictions on

acce s s to and use of firearms are part of a succession of “longstanding prohibitions,” Heller , 554 U.S. at 626, t h a t a r e likely outside the scope of the S e c o n d Amendment, because such restrictions are “consistent with” both t he “longstanding t radition of targeting select groups’ abilit y t o access and to use

arms for the sake of p ublic safety” and the “long s t a n d i n g t radition of age- and safety-based restrictions on the ability to access arms,” BATF , 700 F.3d at 203. In BATF

, the court h eld that a federal law that r estricted 1 8-20-year-olds’ access to and use o f firearms by prohibiting f ederally l i c ensed firearms dealers from selling handguns to those under 21 was consistent with these traditi o n s , b ecause Congress had passed the law to deter violent crime by restricting the ability of minors under 21, who were relatively immature, to buy h a n d guns. Id. The Texas scheme restricts the s ame age group’s access to and use of handguns for the same reason. T h erefore, under circuit precedent, we c onclude that the conduct burdened by the T exas scheme l ikely “falls outside the Second Amendment’s protection.” Id. 2. Step two Notwithstanding this conclusion, we face the same c oncern about the “institutional challenge s in conducting a definitive review o f the relevant historical record,” i d

. at 204, that the court f aced in BATF

. This concern leads us to proceed to the second step of the analysis, just as the BATF court did. In the second step, we initially d etermine which level o f scrutiny to apply. “[T]he a ppropriate level of scrutiny d e p e n ds on [1] the nature of the conduct being regulated and [2] the degre e t o w h ich the challenged law burdens the

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right.” Id. at 195 ( citation and quotation marks omitted). “A law that burdens the core of the S e cond Amendment guarantee – for example, ‘ t h e r i g h t of l awabiding, responsible citizens to use arms in defense o f hearth and home,’ – would trigger strict scrutiny.” Id. at 205 (quoting Heller , 554 U.S. a t 635). “[A] less

severe law” only “requires the government to show a reasonable fit between the law and an important government objective.” Id. This court held that the age-based federal statute challen g e d i n BATF “[u]nquestionably” triggered nothing mor e than the latter, i n termediate scrutiny. Id. The court f irst concluded that the federal statute does not burden the c ore of the Second Amendment based on (1) the fac t t h at t he law is “not a salient outlier in t he historical landscape of gun control” and, (2) “unlike the D.C. ban in Heller , this ban does not disarm an e ntire community, b u t instead prohibits commercial handgun sales to 18-to-20-year-olds – a discrete category.” Id. F u r t h e r m ore, the court observed, “[t]he Second Amendment, at its core, protects ‘law-abiding, responsible ’ citizens,” and Congress had d etermined that
persons under 2 1 t end t o be irresponsible and e motionally immature, and can b e thrill-bent and prone to criminal b ehavior. Id. a t 206 (quoting Hel l e r , 5 5 4 U.S. at 635) (emphasis added in BATF ). The court also gave three reasons why, even if t he Second Amendment rights o f 18-20-year-olds c ome within the core of the amendment, the degree to which the federal statute burdens those rights is not severe: (1) the l aw affects only handgun sales, rather than completely banning handg u n p o ssession and

use; (2) the law does not prevent 18-20-year-olds from possessing and u sing guns i n d e f e n s e o f hearth and home; and (3) the l aw’s age qualification has onl y a temporary effect that e nds as soon as t h e p e r s o n turns 21. See i d. at 206-07. Because the f

ederal law does not burden t he core of t he Second Amendment right a nd, even if it does, the degree o f b urden is not severe, the BATF c ourt held that the law warranted intermediate scrutiny.

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The BATF court’s rationales f or why an age-based restriction on gun possession and use does not burden the c or e o f the Second Amendment right apply equally to the s tate’s a ge-based restriction here. Moreover, we cannot say that, even if 18-20-year-olds’ gun rights a r e a t the core o f t he Second Amendment, the Texas scheme burdens those r i ghts to any greater degree than the federal law challenged in BATF

. A s in BATF

, the restriction here has only

a temporary effect. And, b ecause it restricts only the ability to carry handguns in public, it does not prevent those un d e r 2 1 f r o m using guns in defense of hearth and home. Finally, i t i s not a complete ban on handgun use; it bans such

use only o u t s i d e a home or vehicle. Therefore, we must follow our decision in BATF and apply intermediate scrutiny to the Texas laws. In order t o withstand i ntermediate scrutiny, the Texas sche m e must be reasonably adapted to achieve an important g overnment interest

. Id

. at 207. Furthermore, “[t]he justification m ust be g e nuine, n ot h y pothesized or invented post hoc in response to litigation,” or relying “on overbroad generalizat i o n s.” United States v. Virginia , 518 U.S. 515, 533 (1996). The Texas laws advance the same important government o bjective as the

one upheld in BATF under the intermediate s crutiny s tandard, namely, advancing public safety by curbing violent crime. B ATF , 700 F.3d at 209 (“‘The legitimate and c ompelling state interest i n protecting the community from crime
cannot be doubted.’” (quoting Schall v
. M artin , 467 U.S. 253, 264 (1984))). Evidence in the record s hows that curbing gun violence by keeping handguns out of t he h ands of immature individuals was i n fact the goal of the state legislature i n enacting the licensing provision. And h istorical a nalysis in the re c o r d indicates that T exas implemented the g eneral criminal provision to keep its public spaces safe. Federal statistics also back up this rationale. Id. at 208-10. T e x a s ’ s h a n d gu n c a r r i a g e s c h e me is substantially related to thi s i m p o r t a n t government interest in public safety through crime prevention. The discussion

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in BATF and the record in this case emphasize that those under 21 y ears of age

are more l ikely to c ommit violent crimes with handguns than other groups. Nevertheless, plaintiffs a rgue that the laws a re ill-adap t e d t o promote public safety b ecause t hey a re o verbroad and, in a ny event, will n ot f urther the state’s proffered goal. Plaintiffs contend that the Texas s cheme is too broad because it
amounts to a total ban on carrying handguns i n public by 18-20-year-olds. They further challenge the bread t h o f t h e Texas scheme by arguing that the laws

assume that all 18-20-year-olds are too immature to carry a handgun in public. The nu mber of m odifiers plaintiffs must use by itself undermines both these arguments: the Texas laws prohibit (1) 18-20-year-old s f r o m ( 2 ) p ub l i c l y c arrying (3) handguns. Fir s t , t h e T exas laws have a similarly “narrow ambit” as the federal law in BATF

. I d. at 205. Both the state s c h eme and the federal laws target the “discrete category” of 18-20-year-olds. Id. Second, the s t ate scheme is in some ways more r elated to Tex a s ’ s public s afety objective that the law in BATF , because the state laws only regulate those persons who carry guns in public. Third, the Texas scheme restricts only the carrying of o ne t y pe of gun

– handguns. It is true, as p laintiffs claim, that T exas could have taken other, less restrictive approaches, such as allowing 18-20-year-olds to get a license if they demonstrate a particularly high level o f p r o f i c i e n c y a n d r esponsibility with guns. But t he state scheme must merely be rea s o n a b l y adapted to its public safety

o bj e c t iv e to pass constitutional muster under an intermediate s c r u t i ny s t a n d a r d

. Texas need not employ the least restrictive means to achieve its g oal. Given the substantial tailoring of t h e Texas scheme, plaintiffs overbreadth argument is unpersuasive. Plaintiffs next argue that Texas’s scheme will not promote public safety. They first contend that the scheme “assumes that 18-20-year-olds who are disposed toward v i olent criminal behavior will refrain from carrying a h andgun if doing so is u nlawful.” That assumption would b e far-fet c h e d , s ince it is not

13 Case: 12-10091 Document: 00512247871 Page: 13 Date Filed: 05/20/2013No. 12-10091

clear why t h o s e d isposed to violent criminal behavior would refrain from violating the s tatutory ban o n publicly carrying handgun s
. B u t Texas is not necessarily m aking s uch an assumption. The state may also wish to have a way to take 18-20-year-olds w ho a re disposed t o violence off the street b efore they

c ommit such violence. Convicting them o f carrying a gun in publi c w o u l d accomplish this goal. Second, plaintiffs note that 18-20-year-olds are at greater risk of harm by violent offenders than older persons. They do not, however, say who perpetrates such harm or where it o ccurs. If m embers of the 18-20-year-old
age c o h o rt are at greater risk of harm from peers with guns, t h en t he Texas scheme m a y red u c e t h e risk. And if the harm occurs in the home, the laws, while n ot reducing this risk, w ill not prevent the 18-20-year-olds from defending themselves in their residences. Texas deter m i n e d that a particular group was g enerally i mmature and that a llowing immature persons to carry handguns in public leads to gun violence. Therefore, it r estricted the ability of this particular group to carry handguns outside their vehicles in public. This m eans is substantially related
to the Texas’s stated goal of maintaining public safety, and it still allows 18-20- year-olds to have h andguns in their cars and homes and to apply for concealed handgun licenses as soon a s they turn 21. Th e Texas scheme t hus survives intermediate scrutiny, and we affirm the district court’s conclusion t h at it does not violate the Second Amendment. D. Equal protection claim Plaintiffs argue that the Texas scheme denies them e qual protection of the laws b ecause i t burdens their fundamental right t o bear arms. They contend that the state scheme cannot survive the strict scrutiny it must withstand for burdening such a fundamental right. Whether or not Texas’s scheme satisfies the strict scrutiny standard is not the question presented by this appeal.

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“‘Equal protection analysis requires strict scrutiny of a legisla t ive classification only when the classifi c a t ion impermissibly interferes w ith the

e x e r c i s e of a fundamental right or operates to the p eculiar disadvantage of a suspect c lass.’” Id. at 211-12 (quoting M ass. B d. of Ret. v. Murgia , 427 U.S. 307, 312 (1976)). If a law does not implicate such a protected right or class, then it need o nly b e rationally related to a legitimate government interest t o survive an equal protection challenge. Id. at 2 12. And for such laws, plaintiffs “‘bear[] the burden of p roving the facts o n which the c lassification is apparently based could
not reasonably be c onceived t o be true by the g overnmental decisionmaker.’” I d. (quoting Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 84 (2000)). Because t he state scheme d oes “not impermissibly interfere with Second Amendment r i g hts,” id. at 2 12, or disadvantage a protected class, 7 it does not trigger strict scrutiny. W e evaluate t he T exas s tatutes m erely t o determine that they rationally relate t o a l egitimate g o v ernment interest. Plaintiffs did not attempt to carry t h eir burden by showing that the state scheme i s i rrational in the district c ourt o r on appeal. Moreover, w e concluded i n the previous section that the scheme survives the more stringent intermediate s crutiny. Therefore,

we a ffirm the di s t rict c ourt’s decision to uphold the Texas scheme against plaintiffs’ equal protection challenge. CONCLUSION Because plaintiffs Jennings and Harmon are now 21, w e REMAND their claims to the district c ourt w ith instructions to dismiss t hem as m oot. We also REVERSE the district court’ s r u l i ng that the remaining plaintiffs do not have standing to challenge Texas’s general criminal p r ovision barring pe r sons from carrying handguns in public. Finally, with respect to the general c riminal

7 As the dis trict co urt no te d, ne ithe r ag e no r military s tatus is a s us pe ct clas s ificati o n
. Plaintiffs do no t arg ue that t he y are me mbe rs o f o r that the law s dis criminate o n the bas is o f any o the r s us pe ct clas s ificatio n. 15 Case: 12-10091 Document: 00512247871 Page: 15 Date Filed: 05/20/2013No. 12-10091

provision, we RENDER, and with respect to the licensing law we AFFIRM the district court, h olding that the Texas s c h e m e does not violate the Second Amendment or the Equal Protection Clause.

16 Case: 12-10091 Document: 00512247871 Page: 16 Date Filed: 05/20/2013