Tuesday, September 21, 2010

NRA Files Suits Challenging Handgun Bans on 18-20 Year Olds (updated)

On Wednesday, September 8th, the NRA filed two suits in US District Court for the Northern District of Texas challenging laws that impact 18 to 20 year olds who wish to purchase a handgun or carry a handgun concealed.

The first suit, D'Cruz v. BATFE et al, is the one that has garnered all the attention in the media and on blogs. Even the NRA Institute for Legislative Affairs in their release only mentions the suit against BATFE. However, in addition to this lawsuit, the NRA filed a second lawsuit simultaneously that names the Texas Department of Public Safety and the Texas Public Safety Commission as the plaintiffs. That case is D'Cruz v. McCraw et al.

These are not the NRA's first lawsuits that challenge the age-based requirements that discriminate against 18 to 20 year olds with regard to handguns. The original complaint in Benson et al v. Chicago et al challenged that part of the new Chicago handgun law that required 18 to 20 years olds to obtain the written permission of a parent or guardian to apply for a Chicago Firearm Permit. See Section 19 of the original complaint here. This was dropped from the amended complaint along with a few other things as I detailed in this comparison.

So what are the new suits challenging and who is the plaintiff. The plaintiff is 18-year old James D'Cruz of Lubbock, Texas. He was a member of his high school Navy Jr. ROTC program for four years where he participated in the unit's firearms training. In his junior and senior year of high school, he was an award-winning member of the NJROTC shooting team and competed in regional and national competitions. As to what the suits are challenging, I think it is better to discuss each suit individually.

D'Cruz v. BATFE et al

This suit challenges both laws and regulations that prohibit 18 to 20 year olds from purchasing a handgun from a Federally licensed firearms dealer (FFL) on the grounds that these laws and regulations violate both the Second Amendment and the Due Process Clause of the Fifth Amendment. The suit asks the court to declare these laws unconstitutional and to permanently enjoin the government from enforcing them.

 In its introduction, this suit makes note that at the age of 18, law-abiding citizens are generally considered adults. They are eligible to serve in the military, male 18-year olds are eligible to be drafted for military service under Selective Service laws, and male 18-year olds are designated members of the unorganized militia.
Yet, Section 922(b)(1) of the federal criminal code prohibits law-abiding adults in this age group from lawfully purchasing—from the most prevalent and readily available source—what the Supreme Court has called “the quintessential self-defense weapon” and “the most popular weapon chosen by Americans for self-defense in the home.”Heller, 128 S. Ct. at 2818.
A stated purpose of the Gun Control Act of 1968 was to aid law enforcement in their fight against crime and violence.The intent was not to place "any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity.”

However, Title 18, Section 922(b)(1) forbade the sale of handguns and handgun ammunition to those under the age of 21. Likewise, the derivative Federal regulations forbade a Federally licensed firearm dealer from selling a handgun to someone under age 21. Additionally, these same Federal regulations mandate the use of a Federally licensed dealer for transactions and transfers involving residents of different states.
20. The combined effect of these provisions is a significant, unequal, and impermissible burden on the right to keep and bear arms of a class of millions of law-abiding 18-to-20 year-old adult citizens. Section 922(b)(1) flatly bans the sale of handguns and handgun ammunition, by any person who engages in the regular business of selling guns, to anyone eighteen to twenty years of age. These law-abiding adults are thus relegated to the irregular secondary market for face-to-face intrastate sales of used handguns. And because Section 922(a)(5) bars interstate face-to-face sales, these law-abiding adults cannot even access larger used-gun markets that the Internet and other mediums might otherwise provide.
Count 1 of this lawsuit asks the court to declare that Title 18, Sections 922(b)(1) and 922(c) and relevant Federal regulations infringe and "impose an impermissible burden upon, the Plaintiff’s right to keep and bear arms under the Second Amendment."

In Count 2, the court is asked to declare that because these laws and regulations treat law-abiding citizens between the ages of 18 and 20 differently than those age 21 or over, they violate the Due Process Clause of the Fifth Amendment.

D'Cruz v. McCraw et al

This suit takes aim at the State of Texas's concealed carry law which requires a holder to be either at least age 21 or, if an 18 to 20 year old, to be a member or honorably discharged member of the military (active duty, reserve, or national guard). While Texas law does allow a non-military 18 to 20 year old to possess a handgun in either his or her home or car, they are not allowed to carry concealed.

Texas law does permit anyone over the age of 18 to purchase a handgun. However, as the case above makes clear, this purchase must be a private sale and not one handled by a Federally licensed dealer. It also allows those over 18 but under 21 to "supervise a minor’s use of a firearm for purposes of hunting, sporting, or other lawful purposes." Texas law also permits Mr. D'Cruz to carry a rifle (or shotgun) just like any other adult.

Mr. D'Cruz wants to carry a handgun concealed for self-defense just like his parents. He and his parents sometimes shop in the less desirable parts of town. On September 3rd, he visited the Department of Public Safety website to fill out an electronic application for a concealed carry permit.
The website stated that to apply, Mr. D’Cruz “must be at least 21 years of age or at least 18 years of age if currently serving in or honorably discharged from the military.” Mr. D’Cruz was thus unable to lawfully proceed further with his application for a carriage permit.

Aside from the age and military requirements, Mr. D’Cruz already meets—or stands
ready, willing, and able to meet—all requirements for obtaining a Texas concealed-carry permit.
In discussing the impact of the ban on the plaintiff, the complaint does make the following allegation which, to be honest, sounds pretty lame:
Mr. D’Cruz also has a 29-year-old brother and military friends who share his interest in firearms safety and collecting. He would like to transport to, and carry a handgun in, their homes so that they might jointly discuss and demonstrate proper cleaning and safety practices with the handgun.
To jointly discuss and demonstrate proper cleaning? I wonder what the heck the lawyers were thinking when they put that "impact" in the complaint.

This lawsuit challenges the Texas Penal Code Sec. 46.02 and Texas Government Code Sec. 411.172(a)(2), (A)(9), (g) on the grounds that it violates the right to keep and bear arms as secured by the Second and Fourteenth Amendments by denying the right to carry a handgun for self-defense to those adults who are between 18 and 20 years of age. The lawsuit further charges that the above codes violate the Equal Protection Clause of the Fourteenth Amendment because they deny equal protection of the laws to those 18 to 20 year olds who have not or are not serving the United States military, reserve, or national guard.

UPDATE: Tom Gresham made a very pertinent observation on this case. The judge in these cases, Sam Cummings, is the same judge who presided over the Emerson case. His opinion in that case was one of the first to hold that the Second Amendment is an individual right. That decision is available here.

Not only are these cases being heard in the friendly confines of Texas but you couldn't ask for a better judge to hear the case than Judge Sam Cummings.


  1. Article 1 Section 8 describes the missions of the militia:
    "[a] execute the Laws of the Union, [b] suppress Insurrections and [c] repel Invasions;"

    Said individual is a member of the militia and therefore may not be disarmed.

    TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

    § 311. Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    A militia may not be said to be "well organized" in the sense of the 2nd Amendment if it cannot perform it's duties by virtue of being disarmed of the equipment in Heller's "common use" by our employees (LEO's and military) to perform similar missions.

    When a state disarms a member of the militia it prevents the federal government from having the resource available, and general disarmament without reference to due process (conviction of a felony or insanity) is prohibited. QED

    IANALNDIPOOTV that's the way it ought to be in any event.

  2. Why can't they allow a honorably discharged military serviceman an exemption from the 21 year old requirement.I'm all for the law as it stands but would support an exemption for any honorably discharged serviceman under 21 receiving an exemption form the age requirement. Or would that be to simplistic ?

    1. There is exactly that sort of exemption in the law. It also includes current service members.

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