A Texas law prohibiting 18-20 year olds from obtaining licenses to carry handguns outside the house was struck down Friday by US District Judge Mark Pittman. The decision could mark the beginning of a wave of cases across the country against similar laws.
“Based on the Second Amendment’s text, as informed by Founding-Era history and tradition, the Court concludes that the Second Amendment protects against this prohibition.” Pittman wrote. “Texas’s statutory scheme must therefore be enjoined to the extent that law-abiding 18-to-20-year-olds are prohibited from applying for a license to carry a handgun.”
Judge Pittman decided the case applying the major Supreme Court opinion by Justice Clarence Thomas in New York State Rifle and Pistol Association v. Bruen earlier this year, striking down New York regulations against requiring good cause for carrying handguns. The Thomas opinion was potent, not only because of the particular outcome of the case, but because it suggested a relatively extreme way of deciding gun cases, namely, that the government can only regulate guns if it can show a long-standing history of the particular type of regulation that dates back to 1791.
It is not as though prohibitions against older teenagers carrying handguns are some strange new rule by a gun-unfriendly state. It is notable that even gun-friendly Texas had this law. “There are so many laws – you know, there’s federal law, state laws everywhere – that prohibit 18- to 20-year-olds from being able to carry handguns,” explained Professor Charles Rocky Rhodes of the South Texas College of Law.
The decision reflects the enormous implications of Justice Thomas’ approach. In 1791 there were no laws about guns for those with “red flags” in their past, or those who had engaged in domestic violence, or those buying semi-automatic weapons (which of course had not been invented yet). Judge Pittman seems to be saying that, to be blunt, “anything goes” – states cannot control anything that was not prohibited 131 years ago.
It is not as though Judge Pittman had no choice but to rule as he did. Although Justice Thomas spoke for the majority in the New York Rifle Association case in a 6-3 decision, two Justices wrote a concurrence about the limits of the decision. Justice Brett Kava
Their opinion pointed that the court was not stopping states from imposing standards for licensing for carrying a handgun. Justice Kavanaugh noted 43 states have laws that mandate licensing but also in some places require fingerprinting, a background check, a mental health records check, and training in fire-arms handling, among other things.
Judge Pittman does have very solid legal credentials including having been a federal trial lawyer in several agencies and having experience as a state judge. However, he was not welcomed to the bench by everyone. In the Senate, on the question to confirm President Trump’s nomination of him, there was a vote almost on party lines. Of those present, all Republicans plus Senators Joe Manchin, Kyrsten Sinema and Doug Jones voted for him. All the other Democrats voted against him. So perhaps it is still an open question how the coming wave of cases like this one will be decided elsewhere.
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