Ex Parte Christian Charles Lee

Opinion issued December 29, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00969-CR
———————————
EX PARTE CHRISTIAN CHARLES LEE

On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Case No. 2215871

OPINION

Appellant, Christian Charles Lee, was charged with the offense of unlawfully

carrying a firearm in his vehicle while a member of a criminal street gang, in

violation of section 46.02(a-1)(2)(C) of the Texas Penal Code. See TEX. PENAL CODE

§ 46.02(a-1)(2)(C). Appellant filed a pre-trial application for writ of habeas corpus

challenging the statute as void under the First and Second Amendments to the United
States Constitution. After a hearing, the trial court issued a judgment denying the

habeas application. Appellant filed a notice of appeal challenging the trial court’s

denial.

Asserting five points of error, Appellant argues that section 46.021(a-1)(2)(C)

violates the First and Second Amendments because it (1) “is overbroad, and

therefore fails strict scrutiny, under the Free Speech Clause;” (2) “violates the right

to free association;” (3) “violates the peaceable assembly clause;” (4) “violates the

right to keep and bear arms clause;” and (5) “conditions the exercise of one right on

the surrender of others.” We affirm the trial court’s denial of habeas relief.

The Statute

Section 46.02(a-1)(2)(C) of the Texas Penal Code makes it a crime for a

person who is a member of a criminal street gang to carry a handgun in a motor

vehicle under the person’s control:

(a-1) A person commits an offense if the person intentionally,
knowingly, or recklessly carries on or about his or her person a handgun
in a motor vehicle or watercraft that is owned by the person or under
the person’s control at any time in which:
…
(2) the person is:
…
(C) a member of a criminal street gang, as defined by Section
71.01.

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TEX. PENAL CODE § 46.02(a-1)(2)(C). Under section 71.01(d), a “criminal street

gang” is defined as “three or more persons having a common identifying sign or

symbol or an identifiable leadership who continuously or regularly associate in the

commission of criminal activities.” TEX. PENAL CODE § 71.01(d).

Availability of Pretrial Habeas

Pretrial habeas corpus proceedings are separate criminal actions, and the

applicant has the right to an immediate appeal before trial begins. Greenwell v. Court

of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex. Crim. App.

2005). A claim is cognizable in a pretrial writ of habeas corpus if, resolved in the

defendant’s favor, it would deprive the trial court of the power to proceed and result

in the appellant’s immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex.

Crim. App. 2006) (citing Ex Parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App.

2001)). A claim that a statute is unconstitutional on its face may be raised by pretrial

writ of habeas corpus because the invalidity of the statute would render the charging

instrument void. Ex parte Weise, 55 S.W.3d at 620. Although a pretrial habeas

application can be used to bring a facial challenge to the constitutionality of the

statute, it may not be used to advance an “as applied” challenge. Ex parte Ellis, 309

S.W.3d 71, 79 (Tex. Crim. App. 2010). Here, because Appellant asserts a facial

challenge to the constitutionality of section 46.021(a-1)(2)(C), his challenges were

3
properly raised in a pretrial habeas application and we consider whether the trial

court erred in denying the application.

Standard of Review

In general, we review a trial court’s ruling on an application for writ of habeas

corpus using an abuse-of-discretion standard, and we view any evidence in the light

most favorable to that ruling and defer to implied factual findings supported by the

record. Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d). However, whether a statute is facially unconstitutional is a question

of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.

2013); Ex parte Flores, 483 S.W.3d at 638.

Facial challenges to the constitutionality of a statute must illustrate that the

statute operates unconstitutionally in all of its applications. See Estes v. State, 546

S.W.3d 691, 697–98 (Tex. Crim. App. 2018); State ex rel. Lykos v. Fine, 330 S.W.3d

904, 908–09 (Tex. Crim. App. 2011). To resolve such challenges, we consider the

statute only as written without reference to evidence or facts peculiar to the

complainant. See Lykos, 330 S.W.3d at 908–09.

In considering a facial challenge, we usually presume “that the statute is valid

and that the legislature has not acted unreasonably or arbitrarily,” and the party

challenging the statute bears the burden of establishing that it is unconstitutional. Ex

parte Lo, 424 S.W.3d at 15. This presumption does not apply, however, if the

4
government regulates speech based on its content. Id. (citing United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000)). Content-based regulations—

those regulations that distinguish favored from disfavored speech based on the idea

or message expressed—are presumptively invalid, and the government bears the

burden to rebut that presumption. Id.

Discussion

First Point of Error: First Amendment Right of Free Speech

In Appellant’s first point of error, he claims that section 46.02(a-1)(2)(C)

unconstitutionally abridges the First Amendment right of free speech. Specifically,

Appellant asserts that “The Statute is overbroad, and therefore fails strict scrutiny,

under the Free Speech Clause.” In other words, Appellant contends that section

46.02(a-1)(2)(C) fails strict scrutiny because it is overbroad. Appellant, however,

applies the wrong level of scrutiny and erroneously conflates First Amendment

overbreadth analysis with strict scrutiny analysis. As discussed below, the statute

survives the appropriate level of scrutiny—in this case, intermediate scrutiny—and

is not unconstitutionally overbroad.

Level of Scrutiny

Whether the regulation is content-neutral or content-based dictates the level

of scrutiny that we will apply. Martinez v. State, 323 S.W.3d 493, 504–05 (Tex.

Crim. App. 2010). Content-based regulations are “those laws that distinguish

5
favored from disfavored speech based on the ideas expressed.” Ex parte Lo, 424

S.W.3d at 15 (citing Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994)).

Such a regulation may be upheld only if it is necessary to serve a compelling state

interest and employs the least speech-restrictive means to achieve its goal. Id.

Although content-based regulations trigger strict scrutiny, content-neutral

regulations and regulations that are justified without reference to the speech’s

content must only satisfy intermediate scrutiny. Turner Broad. Sys, 512 U.S. at 642;

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Additionally, regulations

that do not “fit neatly into either the ‘content-based’ or the ‘content-neutral’

categories,” but are aimed at addressing the “secondary effects” of speech are subject

to intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-

50 (1986). A regulation satisfies intermediate scrutiny if it promotes a significant

governmental interest and does not burden substantially more speech than necessary

to further that interest. See McCullen v. Coakley, 573 U.S. 464, 486 (2014); Ex parte

Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014).

Appellant asserts that strict scrutiny applies because “a restriction on gang

signs and symbols is a content-based restriction.”1 Appellant’s claim that the statute

1
Appellant cites Martinez v. State, 323 S.W.3d 493, 505 (Tex. Crim. App. 2010). In
Martinez, the Court of Criminal Appeals held that an injunction prohibiting the use
of gang hand signs or other symbols that identify membership in a combination was
content-based because it banned the particular message associated with the signs or
symbols. Martinez, 323 S.W.3d at 497, 505. The court observed, however, that an
6
penalizes an expressive element—in this case, the “common sign, symbol, or

color”—is misplaced. Instead, the statute criminalizes weapon possession under

certain circumstances—namely, while a person is simultaneously (1) located in a

vehicle owned by, or under control of, the person, and, (2) a member of a criminal

street gang. See TEX. PENAL CODE § 46.02(a-1)(2)(C).

The same First Amendment challenges to section 46.02(a-1)(2)(C) as a

content-based restriction were addressed and rejected by the Fourteenth Court of

Appeals in Ex parte Flores. 483 S.W.3d 632. As our sister court in Flores correctly

stated, “it is far from clear that this statute regulates handgun possession in a vehicle

based on the message expressed by this sign or symbol, particularly given that the

sign or symbol need not be used in connection with the gun possession (and may not

be used at all if the group has an identifiable leadership).” Id. at 640. Even assuming

enforcement would require reference to such signs or symbols, such reference is

content neutral because the statute actually regulates handgun possession in vehicles.

Id.; see also Ward, 491 U.S. at 791 (“A regulation that serves purposes unrelated to

the content of expression is deemed neutral, even if it has an incidental effect on

some speakers or messages but not others”).

order “bann[ing] all hand signs” would not be content-based. Id. at 505.Unlike the
injunction in Martinez, the statute in this case does not prohibit any expressive
content.
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 Appellant asserts that “[t]he Fourteenth Court in Flores got free speech

wrong” because (1) “regulations on handgun possession in vehicles may abridge

liberties that appear totally unrelated to handguns” and (2) although the statute does

not prevent use of gang signs and symbols, it discourages them “by depriving [gang

members] of their right to bear arms in their vehicles for self-defense.” We disagree

and find Appellant’s arguments regarding potential incidental effects on speech

unpersuasive.2

The Supreme Court has held that “[a] regulation that serves purposes

unrelated to the content of expression is deemed neutral, even if it has an incidental

effect on some speakers or messages but not others.” Ward, 491 U.S. at 791. If the

regulation is aimed at the “secondary effects” that tend to accompany such

expression, so that it is “justified without reference to the content” of the expression,

the regulation will be subject to intermediate scrutiny. City of Renton, 475 U.S. at

47–48; see also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 389–90 (1992); Ex

parte Thompson, 442 S.W.3d at 345–46; Texas Dept. of Transp. v. Barber, 111

S.W.3d 86 93–95, 100 (Tex. 2003).

As the Fourteenth Court recognized, “[s]ection 46.02(a-1)(2)(C) falls into this

category because it is regulating not the direct impact of viewing identifying signs,

2
Appellant incorrectly attempts to insert arguments regarding associational,
assembly, and Second Amendment rights into his argument regarding free speech.
We address these arguments separately below.
8
but the secondary effect of gun violence by gang members who sometimes use such

signs.” Flores, 483 S.W.3d at 641. The State has a compelling interest in ensuring

the safety of its citizens by eliminating gang violence and other criminal activities.

Id. (citing Martinez, 323 S.W.3d at 505–06). The justification of controlling such

violence is unrelated to any message likely to be expressed by identifying signs. Id.

Any reference to the content of a sign or symbol in the statute is not due to any

disagreement with the content or message, “but because the sign identifies those

people whose possession of a handgun in a vehicle is more likely to lead to violent

secondary effects.” Id. Moreover, a person can avoid the statute’s incidental limits

on use of identifying signs or symbols by not carrying a handgun in a vehicle, which

confirms that the statute’s focus is not on suppressing expression. Id. Because the

statute regulates the secondary effects of gun violence related to gang activity, and

not the display of gang-related colors, symbols or signs, the statute triggers

intermediate scrutiny and not strict scrutiny. See id.

For these reasons, we hold Appellant’s contention that section

46.02(a–1)(2)(C) facially abridges freedom of speech is subject to intermediate

scrutiny. As in Flores, Appellant’s brief does not challenge the trial court’s implied

finding that the statute is constitutional under an intermediate scrutiny analysis. See

id. Accordingly, section 46.02(a-1)(2)(C) does not unconstitutionally infringe upon

Appellant’s free speech rights under the First Amendment.

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 Overbreadth

Appellant’s overbreadth argument is that (1) “Because the speech restricted

by section 46.02(a-1)(2)(C) is wholly protected by the First Amendment from

content-based restriction, the statute restricts a real and substantial amount of

protected speech” and (2) “Because section 46.02(a-1)(C) [sic] restricts a real and

substantial amount of protected speech based on its content, it is not narrowly

tailored, but instead is substantially overbroad.” Appellant’s assertion that a statute

is overbroad if it regulates the content of speech erroneously conflates overbreadth

with applying strict scrutiny. For the reasons discussed above, Appellant’s argument

fails at the outset because the statute does not regulate speech based upon content

and is subject to intermediate rather than strict scrutiny. To the extent that a separate

overbreadth argument not based upon the application of strict scrutiny can be

discerned from Appellant’s brief, we examine such an argument below.

“The overbreadth doctrine is ‘strong medicine’ to be employed with hesitation

and only as a last resort.” Ex parte Thompson, 442 S.W.3d at 349 (quoting New York

v. Ferber, 458 U.S. 747, 769 (1982)). A statute will not be invalidated for

overbreadth merely because it is possible to imagine some unconstitutional

applications. See Members of City Council of City of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 800–01 (1984). Laws that inhibit the exercise of First

Amendment rights will be held facially invalid as overbroad only if the

10
impermissible applications of the law are substantial when judged in relation to the

statute’s plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973); see also Ex parte Wheeler, 478 S.W.3d 89, 94 (Tex. App. —Houston [1st

Dist.] 2015, pet. ref’d) (“According to the First Amendment overbreadth doctrine, a

statute is facially invalid if it prohibits a ‘substantial’ amount of protected speech

‘judged in relation to the statute’s plainly legitimate sweep.’”) (quoting Virginia v.

Hicks, 539 U.S. 113, 118–19 (2003)).

The overbreadth doctrine prohibits the government from ‘banning

unprotected speech if a substantial amount of protected speech is prohibited or

chilled in the process.’” Wagner v. State, 539 S.W.3d 298, 310 (Tex. Crim. App.

2018) (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002)). But,

as discussed, section 46.02(a-1)(2)(C) does not ban any speech. Even if it did,

Appellant fails to demonstrate that the statute prohibits a substantial amount of

protected speech judged “in relation to the statute’s plainly legitimate sweep.”

Wagner, 539 S.W.3d at 310; Ex parte Wheeler, 478 S.W.3d at 94.

Appellant summarily asserts that the statute is overbroad because it “restricts

a real and substantial amount of protected speech” but fails to provide support

demonstrating that any restriction on protected speech is “substantial.” Moreover,

the statute must prohibit a substantial amount of protected speech judged “in relation

to the statute’s plainly legitimate sweep.” See Wagner, 539 S.W.3d at 310; Ex parte

11
Wheeler, 478 S.W.3d at 94. Appellant does not dispute the legitimate sweep of the

statute. Instead, Appellant attempts to avoid any weighing of the statute’s legitimate

sweep by arguing that “[b]ecause section 46.02(a-1)(2)(C) restricts a real and

substantial amount of protected speech, it is not narrowly tailored; because it is not

narrowly tailored, it is not necessary to consider whether it promotes a compelling

government interest.” Appellant’s attempt to read away any weighing of the statute’s

legitimate sweep is contrary to well-established caselaw. Once again, Appellant’s

argument that the statute is “not narrowly tailored” incorrectly conflates strict

scrutiny (which is not applicable) and overbreadth.

Accordingly, Appellant has not satisfied his burden of demonstrating that the

impermissible applications of the law, if any, are substantial when judged in relation

to the statute's plainly legitimate sweep. Broadrick, 413 U.S. at 612–615.

Second Point of Error: First Amendment Right to Associate

In his second point of error, Appellant claims that—distinct from his free

speech claims—section 46.02(a-1)(2)(C) abridges his First Amendment

associational rights because the statute targets members of criminal street gangs. In

doing so, Appellant tries to fit the square peg of criminal street gang affiliation into

the round hole of associational rights. As with Appellant’s first point of error, this

argument was also addressed and rejected by the Fourteenth Court in Flores. See

12
Flores, 483 S.W.3d at 641-42. We agree with our sister court that section

46.02(a-1)(2)(C) does not interfere with associational rights. Id. at 642

The First Amendment protects freedom of association in two distinct contexts,

neither of which is implicated here. One line of cases involves certain “intimate

human relationships [that] must be secured against undue intrusion by the State

because of the role of such relationships in safeguarding the individual freedom that

is central to our constitutional scheme.” Roberts v. United States Jaycees, 468 U.S.

609, 617–18 (1984). These types of relationships “are those that attend the creation

and sustenance of a family.” Id. at 617–20 (discussing freedom of association in this

context). Another line of cases involves “a right to associate for the purpose of

engaging in those activities protected by the First Amendment—speech, assembly,

petition for the redress of grievances, and the exercise of religion.” Id. at 618.

“[I]mplicit in the right to engage in activities protected by the First Amendment [is]

a corresponding right to associate with others in pursuit of a wide variety of political,

social, economic, educational, religious, and cultural ends.” Id. at 622 (citing cases).

This right of “expressive association” does not provide generalized protection for

“social association,” however. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

The Flores court correctly held that section 46.02(a-1)(2)(C) does not

implicate either of these categories of protected association. See Flores, 483 S.W.3d

at 642. The statute does not address family relationships. Nor does it prevent gang

13
members from gathering to engage in any activities protected by the First

Amendment, including the use of identifying signs or symbols. Rather, this statute

prevents people from carrying handguns in their vehicles—an activity that does not

convey a particular message—if they also regularly associate in committing criminal

activities.

Third Point of Error: First Amendment Right to Peaceable Assembly

In his third point of error, Appellant claims that section 46.02(a-1)(2)(C)

violates Appellant’s right to assembly. But Appellant fails to cite any cases regarding

the freedom of assembly. Instead, Appellant analogizes, without support,

“assembly” to “speech.” Appellant then injects the word “assembly” into the place

of “speech” in selected quotations from U.S. v. Stevens, 599 U.S. 460, 470 (2010).

In an attempt to rewrite these quotations from Stevens, Appellant asserts the

following in his brief:

The right to assembly is affected by this millennium’s free-speech First
Amendment Supreme Court jurisprudence: as the guarantee of free
speech “does not extend only to categories of speech that survive an ad
hoc balancing of relative social costs and benefits, so does “[o]ur
Constitution foreclose[] any attempt to revise [its] judgment [that
peaceable assembly is protected] simply on the basis that some
[assembly] is not worth it.”

Stevens, however, concerns a First Amendment freedom of speech challenge and

does not provide any guidance on, much less mention, the right to assembly. The

actual text from Stevens reads as follows:

14
 The First Amendment’s guarantee of free speech does not extend only
to categories of speech that survive an ad hoc balancing of relative
social costs and benefits. The First Amendment itself reflects a
judgment by the American people that the benefits of its restrictions on
the Government outweigh the costs. Our Constitution forecloses any
attempt to revise that judgment simply on the basis that some speech is
not worth it.

Stevens, 599 U.S. at 470. Appellant’s attempted refashioning of Stevens is

misplaced. Appellant fails to provide any support for the proposition that “assembly”

and “speech” are afforded the same protections. See Thomas v. Collins, 323 U.S.

516, 323 (1945) (stating that, although speech and peaceable assembly are

inseparable, they are “not identical”).

Assuming that the right to “assembly” is distinct from the right to associate,

its purposes are not implicated in this case. The right to peaceable assembly has

largely been construed in the context of marches and demonstrations. See, e.g.,

Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147 (1969) (reviewing

permitting system for “parade or procession or other public demonstration”);

Gregory v. City of Chicago, 394 U.S. 111 (1969) (reviewing arrest for holding a

demonstration); Brown v. Louisiana, 383 U.S. 131 (1966) (same). The purpose of

peaceable assembly is “for lawful discussion.” Thomas, 323 U.S. at 539; see also

CISPES (Comm. in Solidarity with People of El Salvador) v. F.B.I., 770 F.2d 468,

477 (5th Cir. 1985) (holding that statute did not infringe on right to assembly because

“the statute does not prevent simple peaceable assembly for the purpose of lawful

15
discussion, which of course, cannot be made a crime.”); Faulk v. State, 608 S.W.2d

625, 630–31 (Tex. Crim. App. 1980) (holding that Texas’s riot statute did not violate

right to assemble because it prohibited participation in “unlawful” assembly). The

purpose of a criminal street gang, as defined in the statute, is not for lawful

discussion, but to “continuously and regularly associate in the commission of

criminal activities.” TEX. PENAL CODE § 71.01(d). Moreover, the possession of a

firearm in a motor vehicle is not “lawful discussion” and does not convey an idea or

thought. Accordingly, the statute does not implicate the right to assembly.

Fourth Point of Error: Second Amendment Right to Bear Arms

In his fourth point of error, Appellant contends that section 46.02(a-1)(2)(C)

violates the Second Amendment to the United States Constitution. We disagree.

The Second Amendment provides that “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 has recognized,

however, that “[l]ike most rights, the right secured by the Second Amendment is not

unlimited.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Further, “the

right was not a right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose.” Id. The Court has identified, among other

things, that particular classes of persons may be lawfully prohibited from carrying

firearms. Id. at 626-27, n.26. Although the Court has specifically listed felons and

16
insane persons, its list is non-exhaustive. See id.; see also Nat’l Rifle Ass’n of

America, Inc. v. McCraw, 719 F.3d. 338, 347 (5th Cir. 2013) (recognizing the

“longstanding tradition of targeting select groups’ ability to access and to use arms

for the sake of public safety”) (quoting Nat’l Rifle Ass’n of America, Inc. v. Bureau

of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d. 185, 203 (5th Cir. 2012)

(hereinafter “B.A.T.F.E.”)).

Assuming that a Second Amendment right is implicated in this case, the level

of scrutiny that applies depends upon whether the law burdens the “core” of the

Second Amendment guarantee. See Bezet v. United States, 714 F. App’x 336, 340

(5th Cir. 2017). If a core right is burdened, strict scrutiny applies; less severe

regulations on more peripheral rights trigger intermediate scrutiny. Id.

Appellant asserts that the statute is subject to strict scrutiny because it restricts

a core purpose of the Second Amendment, self-defense. The State asserts that the

“core” of the Second Amendment—the type of conduct that requires strict scrutiny

protection—is limited to self-defense in the home.3 But we need not decide whether

3
See, e.g., United States v. McGinnis, 956 F.3d 747, 754 (5th Cir. 2020) (“Under this
framework, a ‘regulation that threatens a right at the core of the Second
Amendment’—i.e., the right to possess a firearm for self-defense in the home—
'triggers strict scrutiny,’ while ‘a regulation that does not encroach on the core of
the Second Amendment’ is evaluated under intermediate scrutiny.”) (quoting
B.A.T.F.E., 700 F.3d at 206); Gould v. Morgan, 907 F.3d 659, 671 (1st Cir. 2018)
(“[T]he core Second Amendment right is limited to self-defense in the home.”);
Woollard v. Gallaghar, 712 F.3d 865, 875 (4th Cir. 2013) (“[I]ntermediate scrutiny
applies ‘to laws that burden [any] right to keep and bear arms outside of the home.’”)
(quoting United States v. Masciandaro, 638 F.3d 458, 470-71 (4th Cir. 2011));
17
the core of the Second Amendment is limited to self-defense in the home to conclude

that intermediate scrutiny applies in this case. Whether inside or outside of the home

the core of the Second Amendment protects “law-abiding, responsible citizens.” See

B.A.T.F.E., 700 F.3d at 206 (“The Second Amendment, at its core, protects ‘law-

abiding, responsible’ citizens.”) (citing Heller, 554 U.S. at 635). Like statutes

restricting firearm possession by felons and the mentally ill, section 46.02(a-

1)(2)(C)’s restricting firearm possession by members of a criminal street gang is an

outgrowth of a long-standing tradition of regulating certain groups’ access to arms

for the sake of public safety. See id. at 205-06. Because the statute is analogous to

longstanding, presumptively lawful bans on possession by felons and the mentally

ill, the statute triggers an intermediate level of scrutiny. See id. at 206.

Even if Appellant could distinguish the statue from such presumptively lawful

bans, intermediate scrutiny still applies in this case because the core right identified

by the Supreme Court in Heller is the right of “law-abiding, responsible citizens” to

possess and carry weapons for self-defense. Heller, 554 U.S. at 635. Because the

statute restricts possession of firearms by individuals who are part of groups

B.A.T.F.E., 700 F.3d at 206 (holding that laws prohibiting commercial sale of
handguns to persons under 21 “do not strike the core of the Second Amendment
because they do not prevent 18-to-20-year-olds from possessing and using handguns
“in defense of hearth and home.”); see also Kachalsky v. County of Westchester,
701 F.3d 81, 93 (2nd Cir. 2012); United States v. Reese, 627 F.3d 792, 800 (10th
Cir. 2010).
18
engaging in unlawful activities, it does not implicate the core right identified in

Heller and is thus subject to intermediate scrutiny. See Wargocz v. Brewer, No. 02-

17-00178-CV, 2018 WL 4924755, at *7 (Tex. App.—Fort Worth Oct. 11, 2018, no

pet.) (mem. op., not designated for publication) (“Because the core right identified

in Heller protects law-abiding, responsible citizens and [appellant] is not such a

citizen, we apply intermediate scrutiny to his claim.”) (citing United States v.

Chapman, 666 F.3d 220, 226 (4th Cir. 2012)). In evaluating a Second Amendment

challenge to a law prohibiting the sale of firearms to individuals under 21 years of

age, the Fifth Circuit explained as follows:

Moreover, as with felons and the mentally ill, categorically restricting
the presumptive Second Amendment rights of 18–to–20–year–olds
does not violate the central concern of the Second Amendment. The
Second Amendment, at its core, protects “law-abiding, responsible”
citizens. See Heller, 554 U.S. at 635, 128 S. Ct. 2783 (emphasis added).
Congress found that persons under 21 tend to be relatively irresponsible
and can be prone to violent crime, especially when they have easy
access to handguns. See Pub. L. No. 90–351, § 901(a)(6), 82 Stat. at
197, 225 (1968) (referring to “emotionally immature, or thrill-bent
juveniles and minors prone to criminal behavior”); cf. Chester, 628 F.3d
at 682–83 (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9), the
federal domestic-violence-misdemeanant firearm possession ban, and
holding that misdemeanant-plaintiff’s claimed “right to possess a
firearm in his home for the purpose of self-defense” was “not within
the core right identified in Heller—the right of a law-abiding,
responsible citizen to possess and carry a weapon for self-defense”).

B.A.T.F.E., 700 F.3d at 206. Here, section 46.02(a-1)(2)(C) regulates possession by

a group that is not law-abiding and, similar to the reasoning in B.A.T.F.E., “tend to

be relatively irresponsible and can be prone to violent crime.” Id. Moreover, unlike

19
bans of firearm possession by felons and the mentally ill, which “extinguish the

Second Amendment rights of the class members by totally preventing them from

possessing firearms,” the statute in this case is not so extreme. Id. Far from a total

prohibition on handgun possession by members of a criminal street gang, the statute

only regulates firearm possession by such people in vehicles and does not prevent

possession in the home.

Because section 46.02(a-1)(2)(C) does not restrict the core purpose of the

Second Amendment, we apply intermediate scrutiny in evaluating Appellant’s

Second Amendment challenge to the statute. We conclude that the statute satisfies

intermediate scrutiny because the statute is reasonably adapted to promote a

significant governmental interest. First, it is undisputed that the State has a

significant interest in regulating firearms possession by members of a criminal street

gang. Second, the statute does not restrict firearm possession more than necessary to

further that interest. Here, the statute is limited to regulating firearms possession in

vehicles and does not burden the core right to bear a firearm in the home. The statute

strikes a balance between the right to carry outside of the home—a right which

receives less protection—and the public safety concerns regarding criminal street

gang members driving around with firearms. In the same way that the State may

restrict possession of firearms by felons due to public safety concerns, the State may

restrict possession by members of a criminal street gang; the sole quality of which

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under the statute is the continuous or repeated commission of crimes. See TEX.

PENAL CODE § 71.01(d).

In sum, although the Second Amendment secures “the right of law-abiding,

responsible citizens to use arms in defense of hearth and home,” Heller, 554 U.S. at

635, it does not entitle members of a group that “continuously or regularly associate

in the commission of criminal activities” to carry a firearm in a vehicle.

Fifth Point of Error: First and Second Amendment

In his fifth point of error, Appellant claims that the statute violates both the

First and Second Amendments conjunctively. Specifically, Appellant contends that

to enjoy one right, he must surrender the other. To support this contention, Appellant

cites to Simmons v. United States, a case dealing with use immunity in the context

of establishing standing in a court proceeding, and the friction between the Fourth

and Fifth Amendment’s guarantees. Simmons v. United States, 390 U.S. 377 (1968).

Appellant fails to explain the relevance of Simmons to his argument. Instead,

Appellant summarily asserts that “[t]here appears to be no test for the surrender of

one constitutional right for another,” and that “nothing can justify making a person

choose between one fundamental right (the constitutionally protected activity of

associating with a criminal street gang) and another (the constitutionally protected

activity of bearing a firearm in a motor vehicle for self-defense).” Appellant’s

argument is both unsupported and insufficiently briefed for consideration. In any

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event, Appellant’s claim that he must surrender a protected right under the statute is

irrelevant because, as discussed, the statute violates neither the First nor the Second

Amendment.

Conclusion

For the foregoing reasons, we affirm trial court’s judgment denying

Appellant’s pretrial application for writ of habeas corpus. We dismiss any pending

motions as moot.

Gordon Goodman
Justice

Panel consists of Justices Lloyd, Goodman, and Hightower.

Publish. TEX. R. APP. P. 47.2(b).

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