Thread: Getting Ready for 2013 |
I realize I may be pretty early on this but I was wondering if there is any organized effort to prepare for the 2013 legislative session going on yet. Taking a cue from last session, the earlier we jump on this the better. And if we are doing something, is there anything I can do to help?
Sean Sheridan
Here in Oklahoma, we started a facebook page, several months before the legislative session started. By talking it up on various gun owner forums, we collected several hundred members, and we were able to call people to action with emails and phone calls at critical times when we needed someone to move a bill or to vote a certain way. I'm not saying we did it, but I know that hundreds of phone calls and emails didn't hurt.
www.facebook.com/opencarryok
Last edited by okiebryan; 06-05-2012 at 12:39 AM.
I have a a nagging suspicion that the better angels of the ghosts of 2009, and 2011 have offered their wise counsel to "run silent - run deep " in 2013, and the "hard-chargers" have taken heed to that counsel.
Notoriety, balloon flotillas, and the like sometimes sell cars - but not "controversial" legislative measures.
High waves crashing into breakwaters tend to create back-wash, and rip-currents, whereas small leaks can go undetected for years.
I would concentrate for the time being on contacting the respective Texas elected representatives, Governor Perry's office, and Attorney General Abbott's office - and encouraging all concerned to support the repeal of Section 46.035a of the Texas Penal Code.
Section 46.035a is the provision under Texas law that DEFINES the constitutionally reserved "right of every citizen" in Texas to keep arms [even "a handgun on or about their person" ] for the purpose of lawful defense - as constituting a "CRIME against the people of the State of Texas".
Since the Supreme Court of these United States has taken the position that the Second Amendment's right to keep arms actually DOES INCLUDE the "quintessential" choice of most Americans -the HANDGUN- for the purpose of self defense in case of confrontation - maybe it is time for Texas to do the same.
Tell your Texas legislators to remove Section 46.035a from the Texas Penal Code because it violates Article 2, Section 23 of the Texas Constitution.
There is no need to comprehensively address every jot & tittle of Texas statutory law in order to deal with this issue. Texas courts are quite capable of cleaning up the debris left behind following Texas legislative sessions for the last 137 years . They are REAL good at it !
The Texas Concealed Handgun License should be just that - a CONCEALED handgun license and nothing more.
It's long past time for Texas to rise up from the cold, dry ashes of Reconstruction.
Last edited by rushcreek2; 06-08-2012 at 07:59 PM.
Thanks, Rush. Quiet running does seem like a good plan. I'll be sure to familiarize myself more with that section of the law and contact my reps and sens. I just hope this effort doesn't suffer from the same kiddie, grade school division crap as last year. Obviously we saw what back and forth slander, negativity, and refusal to cooperate got everyone last session.
There are those who insist that a "comprehensive" approach must be taken - much like the last session's HB 2756, and the more recent Oklahoma version essentially utilizing the same approach wherein every conceivable potentiality must be addressed.
I am a Coloradoan now so it could be asserted that my opinion ain't worth much in Texas. On the other hand- Texans might want to study the Colorado model for a second or two. Colorado law doesn't have much of anything to say regarding unconcealed carry - other than the embarrassment of the current violation of the State Constitution by Denver County there is no State law addressing open carry.
The simple repeal of 46.035a without any further to-do, or house-keeping will suffice in expunging the "crime" of licensed open carry from the books in Texas. The CHL already preempts local meddling with a concealed handgun licensee. Attach the 46.035a repeal measure as a rider to some reasonably germane bill - other than campus concealed carry of course.
The CHL provides exception to the application of the unconstitutional Sections of Chapter 46 of the Penal Code anyway - who cares if some bureaucrats are confused by the obscure presence of the phrase "CONCEALED handgun" salted throughout the maize of Texas statutes. Maybe that would be a good thing - get the focus back on CONCEALED - instead of HANDGUN.
It should be that simple, but it's not, and the TSRA and powers that be won't let it be.Originally Posted by rushcreek2
They are convinced that if there is legal OC in Texas, the 30.06 signs will spring up like dandelions, thus affecting their precious concealed carry. They're very resistant to any modification of 30.06, afraid it will get worse.
Whether they're right or wrong, they're steadfast in their opposition to legal OC for this reason.
Aside from the short-sightedness of that particular 30.06 sign perspective, the number of CHL's that would endeavor to open carry into non-30.06 posted businesses would be extremely small.
Open carry is a "point-man/woman" endeavor. I suspect that projections regarding the number of licensees who would OC even 10 percent of the time is highly over esitmated. CHL's that would never OC at all would be at least 85 percent.
The legal option of doing so however would prevent crime - particularly in shopping center parking lots.
The 30.06 sign issue has nothing to do with the need to delete the single sentence criminal provision of Section 46.035a. The remainder of Section 46.035 can be retained , and re-outlined to wit (b) becomes (a), and so forth on down the line.
It was clearly not the intent of of Article 2, Section 23 that "every citizen shall have the right to keep and bear arms in lawful defense of himself " - as long as the arm in question isn't a handgun.
An act of the Legislature requiring concealment of a handgun by a CHL holder (Sec.46.035a) is an affront to those who drafted, and adopted the 1876 Texas Constitution.
It strikes me as a little silly - this whole big to-do over the 30.06 signage. It seems a bit ironic that the same folks who are so concerned about MORE OF THEM POPPING UP if licensed OC is legal seemed to think it was a great idea in the first place to establish this statutory signage. This is a prime example of regulatory excess serving only to counter the very right presumably being advanced.
One legislator could attach a rider repealing 46.035a to some other house-keeping amendment to Chapter 46 - such as adding the word "concealed" in front of the word "handgun" in Section 46.02a. What a concept - actually bring Chapter 46 of the TPC into compliance with the Texas Constitution!
The problem that 30.06 addressed was real, and serious, but their fix amounted to applying a full body cast, when all that was needed was to clip off the problematic hangnail.
Instead of fixing 30.05 so that legal carriers would no longer get whacked with a Class A misdemeanor (up to a year in jail) for carrying past an obscure sign, they made the sign huge, unmistakeable, and ugly (thus unpopular among business owners). We wouldn't have the 30.06 issue to deal with, if carrying after receiving notice was the same as any other simple trespass.
Some further thoughts I have on this subject .
My feeling is that the real & serious problem under Section 30.05 for CONCEALED handgun licensees was predominately associated with folks who were either unaware, unresponsive, or insensitive to the principle of common law property rights. This problem was presumably "cured" by the establishment of a statutory 30.06 signage model that has become a rallying point and guide-on banner for those favoring continuation of the State's suppression of the constitutionally reserved right of every citizen in Texas to carry openly.
Section 46.02a hasn't to my knowledge yet been revisited in a Texas court room in light of the Heller/McDonald decisions. Prior to the Heller/McDonald 2A benchmark, Texas may have had a plausibly persuasive argument for the statutory exclusion of the "quintessential" handgun from that State's otherwise highly regarded constitutional right to keep/carry firearms.
Pending QUESTION - Can Texas courts TODAY still articulate a viable argument that would reconcile Texas case law upholding the State's "power to regulate" into oblivion the constitutionally reserved right of every citizen in Texas to keep a handgun on their person for lawful defense in case of confrontation ?
Probable ANSWER - NO, because it appears that the only remaining allowable circumstance cited under Heller/McDonald dicta for Texas to restrict the precise manner of handgun carry under its Article 2, Section 23 "regulate the wearing" clause is within the context of CONCEALMENT.
The totality of current Texas handgun law serves to outright suppress the exercise of a right in return for the State's grant of a privilege. State licensing of handgun carry is one thing. Suppression of unconcealed carry under such a licensing provision is another matter all together.
Last edited by rushcreek2; 06-13-2012 at 10:56 AM.
Actually, in OK, all they really needed to do was add their one word "Concealed" in their carry prohibition language and unlicensed OC would have been legal.
I was reading your 46.035...looks like TX has a bigger mess than OK did.
First, let me get it out of the way that I am not from Texas, yes, I know, and as such am not familiar with the history behind TSRA and "the powers that be", but most states have dealt with similar issues. In Utah our biggest limiting factor was/is the NRA.
Now, the first question is, does TSRA run you or do you (members) run TSRA? Stand up, join up, and take control of your destiny.
Second, "running silent" is BS. It gets you nowhere but out of the conversation.
I was part of the "revolution" that got Utah law changed to "shall issue" and "state preemption" since then I have continued to work for further improvements which we gain every year or two. We spent hundreds of hours on capitol hill talking to and pushing legislators to take a public, open stand on their positions. Don't let them waffle, corner them until they give a definitive position statement on the record.
Pick one or two state legislators and concentrate on replacing them with pro-gun representatives. Put all of your effort into unseating just one or two where you have the probability of success. Organize yourselves and do a door to door campaign in their districts, not just dropping literature, but talking to voters. It is not all that difficult to get agreement from the voters when you actually talk to them and explain your position. Make liberty the issue.
Don't be quiet about your goals. When you succeed at unseating an opponent, hold a press conference and make sure you send press releases to all of the rest of the state legislators so they know what their fate will be if they continue to fight against your freedom.
Oh, and by the way, history has proved that "they" are wrong. The number of "30.06" signs might increase for a while, but when you start taking your dollars away from those business _and make sure they know why and how much_ the signs will come down.
I do appreciate your reply, rpyne, and I admire what y'all achieved in Utah.
"Texas," as the tourism slogan says, "is like a whole other country."
Utah is vastly unpopulated and mostly owned by the Federal government. There is the collection of cities in the north-central part of the state, then St. George in the southwest, and Vernal in the northeast, and a couple of others in the 10,000 or under population range.
Texas has almost no federal land except for military bases, is populated even in the "unpopulated" portions, and has four major metropolitan areas (three of them in the top 25 largest in the country, and El Paso at #65). Texas has almost 10 times the population of Utah.
Utah has a marked difference between their urban centers and the desert dwellers, but the latter don't have a significant political presence in the state. Whatever goes in SLC and Ogden, pretty much goes for the whole state. In Texas, though, DFW, Houston, El Paso, San Antonio, and Austin all have markedly different cultures. And those are just the major metro areas - unlike Utah, small towns in Texas make up a good chunk of the population, and representation in the state legislature. Things in Waco and Wichita Falls are very different from Texarkana and Tyler. Lubbock is not Laredo; Midland is not Alpine. Even on the coast, Corpus Christi is not Galveston.
I'm not dissing Utah; I love the state, and would love to visit. It's just not Texas, and the geo-political challenges are very different.
In Texas, political decisions are made by consensus, and the consensus relies on established political machines. The TSRA is one of those machines, and legislators hesitate to listen to anyone else when it comes to gun issues.
Seriously, we could put together a coalition just as big as TSRA, and still be ignored. We could even take over TSRA and be ignored, because the political power brokers would still talk to the same individuals they talked to before.
If this were true, Utah would have some of the most draconian gun laws in the nation. It is exactly the influence and work of us "desert dwellers" that made the changes happen. Salt Lake City and Ogden routinely elect liberal democrat anti-gun representatives, but the rest of the state is able to counter that through organization and hard work.
We have the same problem with the "power brokers" who think that the NRA represents Utah gun owners. One of them, who was otherwise pro-gun, recently lost his bid for a congressional seat because he listened to the NRA instead of the Utah gun owners.
Since Texas has ten times the population, it should have ten times as many people available to step up and fight for their rights.
Everyone down there IS IN UNISON with the concealed carry on campus effort, but many are concerned that the push for "open carry" would jeopardize passage of CCC. There is considerable logic attached to a concern that the opposition to CCC would argue that OCC would be the result. This is the reason that "run silent - run deep" will accomplish more than a "canon-ball" in the center of the pool.
TSRA leadership seems to be opening up to the efficacy ( and popularity) of repealing TPC Section 46.035a (failure to conceal with a license), but is still resistant to any "wedding" arrangements being made between CC, and OC.
That is OK actually. You don't need "no stinking marriage license" in Texas - it is a common law RIGHT of "every citizen" TO CHOOSE TO WED a person of the opposite sex without the State of Texas granting its permission through the issuance of a marriage license. Those who prefer the legal sanctions and shackles involved with having the State being a third party to your marriage are still free to seek the permission of the State through issuance of a marriage license. Open carry is the common law right in this case, whereas Concealed carry is State sanctioned.
An available option is action to seek declaratory judgement in Austin challenging the constitutionality of BOTH Sections 46.02a, and 46.035a under the combined scrutiny of Article 2, Section 23 of the Texas Constitution, and the 2A per Heller/McDonald. These two TPC sections transgress upon the RIGHT to keep a handgun on one's person outside of the home or vehicle as long as it is not concealed, due to the fact that Section 46.02a sets up the requirement for CHL-specific Section 46.035a which then requires concealed carry.
I believe Section 46.035a would be declared to be constitutionally invalid on grounds that it's scope of application is overly broad constituting the wholesale suppression of the Article 2, Section 23 right reserved to every citizen. Section 46.02a would be held to be constitutional ONLY in application to concealed carry of a handgun under circumstances NOT EXCEPTED from 46.02/03 application under Section 46.15.
Given that Texas Attorney General Gregg Abbott was instrumental in McDonald v Chicago, it is hard for me to imagine his office putting up much resistance to an action challenging -in the light of Heller/McDonald - the continued application of 46.02a to the otherwise lawful carry of a handgun, and 46.035a which is totally inconsistent with Article 2, Section 23 of the Texas Constitution. The AG would be debating himself in the court room - per his stated position in the McDonald amicus brief.
The AG, and the Governor contend that this is a matter requiring legislative action. That it is -BUT they are the officials tasked with enforcing the current unconstitutional application of these laws. They can honor their sworn oaths to uphold the Texas Constitution by employing their respective good offices in the form of LEADERSHIP for legislative action, and law enforcement constitutional re-calibration. Would that be asking too much of your good Governor, and the Attorney General ?
The AG, and the Governor could be very instrumental in re-focusing the resources of the Texas criminal justice system upon the actual PREVENTION of crime against persons- which I believe is the intent of the State's constitutional "power to regulate the wearing of arms".
Last edited by rushcreek2; 06-14-2012 at 03:04 PM.
ain't that the troof.
There's just one little "RUB" - as they say - to the above pathways to restoring the right in Texas.
Lip service is customarily given to constitutional law within these United States - but when certain constitutional provisions ( the 2A/ Article 2, Sec. 23 -TX Const.) are found to be "PROBLEMATIC" when reflected in actual practice - the constitutional provisions get ignored, or the "meaning" of the constitutional provision re-constructed by statute, or creative case law.
The people who elect those State officials unwilling to abide by their oath to uphold the constitution are going to have to come to grips with the fact that their elected representatives only reflect the collective will of the voters who put them in office. It is the reflection in the mirror.
State's like Texas tolerate unconstitutional gun laws , because they tend to agree with those UNCONSTITUTIONAL provisions. That's why if the Texas Court of appeals, and the Texas Supreme Court were to rule in favor of my above stated arguments on 46.02a. and 46.035a - the Texas Legislature would immediately act to restrict access to the free exercise of the restored right by enacting a CHL OC/CC measure to ensure that there would be no unlicensed handgun carry in Texas. Why is that ?
Simply stated - Although Article 2, Section 23 declares that "EVERY CITIZEN" in Texas shall have the RIGHT to keep & bear arms in lawful defense of him/her-self, the majority of voters in Texas are not comfortable with " EVERY CITIZEN" (just ANYBODY) being ALLOWED to carry a handgun. So much for the Texas Constitution - huh !
It's the same story in Colorado. If a certain provision of the Colorado Constitution is "PROBLEMATIC" - well....... we'll simply IGNORE IT - or re-construct the "meaning" of that provision by way of statute, or creative case law.
Last edited by rushcreek2; 06-14-2012 at 03:07 PM.
Well, as far as the history of posted signage goes, I can offer another example on top of Utah's experience that backs up rpyne's claims. A few years ago I was a Tennessean and, at the time, we were engaged in a very noisy, very widely publicized and heated political fight to allow carry in places that serve alcohol so long as the carrier was not drinking. We finally got it passed and, unlike here, there was no percentage distinction. The opposing side, including business owners of very widespread franchises, threatened to post signs and indeed it was a very public fear that those signs would go up "Everywhere" if the law got passed. To this day I know of two establishments that posted immediately following the legislatures decision and one of those, after many phone calls from regular customers, took their signs down in less than a week. It never became the widespread epidemic people said it would be, any more than gun fights in the bars and streets as proclaimed by the opposition.
In that case, making the initiative as public and pervasive as possible was what made it happen. But nearly the entire carrying community was behind it and that's where Texas is different. Apparently, due possibly to some factors mentioned in previous posts here, Texan gun owners just can seem to agree on anything. Honestly, I was shocked at all the bickering and name calling and just downright hatred being fired off in both directions when I first started looking into getting involved. For the moment, that does seem to have quieted down approaching this session but I'm not sure I should hold out hope as we actually get into it.
Now, Tennessee is an Open Carry, Shall Issue state and I know from experience that I wasn't the only one who occasionally did OC. That's not to say that there weren't people uncomfortable with that. But that on top of the "Restaurant Carry" bill, as those of us with cooler heads liked to call it, should at least show an encouraging example of posted signage not being nearly the threat some people are reasonably afraid it would become. I think if we could unite the carrying community through civility and honest education using already established examples, we would stand a much better chance of getting this passed. Campus Carry wouldn't suffer from the extra unified support either. The door swings both ways, as Egon would say.
What a refreshing and objective perspective, Ravendove. Not a lot of legal mumbo-jumbo , but to the point. Thank you.
Every state has its own unique history, and political environment. Texas sadly is now paying the price for its "good ol' Boy" history. Texans allowed unconstitutional and restrictive laws to remain on the books in order to maintain the "status quo" - if you will. Now the anti-gun crowd has co-opted that legal "system" and succeeded in aiming it right back at even the good o' boys.
Court action challenging the unconstitutionality of Texas handgun carry statutes isn't far away.
Interestingly though, the powers that be seem to be a bit reluctant to push the issue in the courts. Hmmm....
Last edited by rushcreek2; 06-14-2012 at 08:58 PM.
Many here, including me, would like to have seen more action in the legislature in the last few sessions. After all, we've only gotten as far as getting a bill introduced and perhaps heard in committee. That said, I think 2013 is going to be much different and we should take "yes" for an answer.
Whatever you might think of TSRA, it is highly likely that they will facilitate/help/support a bill that some member introduces that repeals 46.035(a). As mentioned above by Rush and others, it would take away the criminal sanction for open carry by a license holder even though the "concealed" will still exist in many places. That will be taken care of in the next session when the bill/amendment to eliminate it can be described as a "code cleanup" and non-controversial.
Let's work to get this year's bill passed, get it signed into law, declare victory, and not dwell on the past. We will have won. Open carry, though licensed, will be the law in Texas. Even then there will be much to do to make Texas law even better so I say forget the past and work with all 2A advocates and stay on the offensive. A house divided ...
I still believe that Texas Attorney General Greg Abbott is the one State official who can help facilitate the repeal of 46.035a during the 2013 session. He knows that inane provision of the Texas Penal Code cannot withstand constitutional scrutiny in the courts under either the Texas Constitution, or the 2A per Heller/McDonald.
If the mail volume begins to pile up high enough in the AG's inbox I believe some impetus would be forthcoming to stimulate action on this much needed "code cleanup" measure.
The same political dynamics apply to the concealed carry on campus effort. Amplifying the decibels of any controversial legislative effort in Texas is counter-intuitive because the State has "....a long way to go, and a short time to get there" legislative reality.
Unfortunately,I believe Texans will have to live with LICENSED OC for some time, but at least that is progress.
Unlike Colorado - Texas still bears the scars of being on the losing side of the Civil War. You would think that after 147 years Texas could push past the Reconstruction mentality . Missouri by contrast was a Union state , and is today an open carry state . I remember being a kid in Missouri during the 1940's when the KKK would put on its annual "Veiled Prophet's Parade" in downtown St. Louis.
Governor Perry was touting the every- other- year Texas Legislature as a model for the U.S. Congress during his GOP primary campaign. That needs to change. Texas is too big, too populated, and too culturally diverse to be governed by a part-time legislature.
Last edited by rushcreek2; 06-15-2012 at 02:24 PM.
I dread to think how much damage they could do as a full-time professional legislature. As the old saying goes, they meet for 140 days every two years, and it's a shame it's not the other way around.
Yes, it takes a long time to make positive changes, but there would be more we would have to change, and stay on top of and beware. At least we get a little breathing time now.
The most positive change we could make to the legislature would be to make it bigger. Much bigger. New Hampshire has 400 state representatives serving just 1.3 million people. At the same ratio, Texas would have almost 8,500 representatives, each serving about 3,000 people. That would make them truly accountable to their friends and neighbors; in such small districts, you can't hide from the voters.
Oh, and NH only pays their reps $10 a year, plus mileage and tolls. This is set in the state constitution, and can't be changed by the legislature.
Historically in Texas since 1871 the carry of a handgun has been a criminal offense. The legislature has provided a few extenuating exceptions. Since September 1996 the State granted PRIVILEGE of carrying a concealed handgun has been available to a growing number of "every citizens"- presently numbering around 500,000- plus those holding out-of-state recognized licenses.
What ever happened to the constitutional RIGHT TO CARRY in Texas ?
This is of course a rhetorical question. The point that I wish to make is that this is going to be a matter for the courts to address in Texas - if the Legislature doesn't address it during the next session.
I think the best course of action is baby steps in Texas. As many have said it is like a whole other country. It is big, diverse, and a small group from one part of the state is not going to have enough influence. There needs to be a consensus that the majority of the state can agree on. So, I wouldn't expect Texas to allow unlicensed OC in 2013 -- maybe in 2015 or 2017 if you get licensed OC in 2013. I don't think a license to exercise a right is in any way Constitutional, but I don't think you will get anywhere if you try to get everything at once. I would think that the option to OC would be reasonable considering the climate in TX, but I digress. Signage does appear after a major change in carry laws, but those same signs come down after the sky doesn't fall like everyone expects. I have had some casual conversation in a couple of gun stores around Dallas and they seem inclined to at least have the option to OC.
Here's a thought -- if you add licensed OC in Texas, would it be possible to change the law to Constitutional Carry at some point?
I don't see OC as being a high priority for Austin next year. Unless you can convince your lobbying power to side on OC. I would advise them to watch what happens in Oklahoma between now and next year and use trends from states that had recent changes in their carry laws -- Wyoming, Arizona, and Wisconsin come to mind.
Texas remains one of the few states that still treats the carry of a handgun as a criminal act.
In order to restrict the licensed carry of a handgun in 1996 the legislation included a criminal penalty provision requiring concealment by licensees.
The repeal of that criminal penalty would not automatically translate into widespread open carry by licensees in Texas. I have no desire when in Texas to advertise the fact that I am carrying a holstered handgun. On the other hand there may be moments in time, and certain circumstances under which I would in fact feel much safer by not concealing that fact.
I believe that this rationale is shared by the vast majority of concealed handgun license holders in Texas.
Section 46.035a is an extreme statutory provision that serves only to establish criminal conduct in the absence of any criminal conduct.
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