Thread: 46.02 is unconstitutional
The 7th Circuit recently ruled that similar laws in Illinois, that prohibited public possession of guns, are unconstitutional. Our laws deny all but a few percent of citizens their right to publicly possess handguns. Why is that not a priority for the legal movement that is driving all the new court cases? Why will Texas not lead the nation with the wave of new case law on the 2nd Amendment?
No, it's about the children. Right? Seeing a gun might frighten a child, or make an otherwise normal child go berserk. That must be it, because there isn't another reason.
Seriously, with the 1875 amendment to the Constitution, adding the phrase "but the Legislature shall have power by law to regulate the wearing of arms, with a view to prevent crime", they inked our fates. Previously, Governor Davis had taken away our arms, but 1876 saw an agreement that the legislature could not prohibit wearing of arms, only specify the acceptable and unacceptable manner of doing so. But we lost that too.
Again, our government has forgotten that it serves us and doesn't really have the authority to tell us what we may and may not do, absent our consent. I suspect that a constitutional convention today would do more harm than good, since there are likely to be lawyers and professional politicians involved, instead of real people.
I recall some provision to the effect that the Governor may have authority to issue a frontier proclamation waiving 46.02/46.03 in designated "frontier" zones subject to bandit, or Indian marauding.
Whether this power is still invested in the office of the Governor would be the question. I have always felt that the Governor does in fact have sufficient emergency powers to significantly "amend" applicability of certain provisions of Chapter 46.
I wonder if the Governor could preempt the necessity for school districts to authorize teachers, and staff with CHL's to carry in schools.
The public schools would seem to qualify for "frontier" designation - in the aftermath of the Sandy Hook tragedy.
My point was though that the legislature has failed us for over a hundred years, and nothing on the horizon is a driver for change. We don't even have an effective lobby to the legislature. The TSRA is lobbying to merely appease the most vocal opponents to gun control. If anything, in my mind, that's counter productive to restoring the rights of all Texans. They aren't doing anything to represent people like my wife, a teacher, who is so intimidated by the gun laws on the books that she won't exercise her right.
We do have access to the courts, and the 7th Circuit just ruled that they agree the Heller and McDonald rulings do apply to public possession of guns. They ruled again that states will have to justify any restrictions with more than a mere rational basis, almost ridiculing that the states' arguments wouldn't meet even a rational basis standard. The 2nd Amendment applies to the states. The right includes self defense with common weapons. The right applies to public settings, not just in the home. All of this is brand new territory for the states. Texas laws have never lived up to any of these standards.
The 46.02 law flat out bans the possession of handguns on it's face. It was written against a state constitutional standard that gave the legislature the power to regulate our right however they chose. It stood beyond a constitutional amendment intended to specifically limit that power and repeal the 1871 act. It stood after the reconstruction governor that signed it had to be removed from office at the Capital by armed citizens. It stands today banning possession, in the face of the plain language of the constitution that grants the legislature only the power to regulate the wearing of arms, not banning possession. It's been upheld, for example in State v Duke, only with respect to precedence from cases like Cruikshank and Slaughterhouse. The only case law upholding the Texas law, and even the Texas constitution itself, are flawed by the same reasoning the Supreme court has already addressed in Heller and McDonald.
We have the SAF going after cases like in North Carolina where the states citizen's rights are only violated sometimes, like in declared emergencies. No doubt that's important, but I don't understand how that's more important than in Texas where all citizens have been denied their rights for well over one hundred years. Rather than focusing on lobbying the legislature, why doesn't an organization like opencarry.org focus on fighting for our rights in the judiciary?
Because court battles are expensive. If you have the scratch, I have the standing to be heard.