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Thread: BP open carry in Texas?

  1. #1
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    BP open carry in Texas?

    A Black powder pistol is not considered a firearm in Texas. My question: Is it legal to open carry a black powder pistol in Texas. I have a CHL so I'm just wondering. I have had yes and no answers by LEOs that I know.

    Thanks

    Richard

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    Regular Member MikeTheGreek's Avatar
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    Quote Originally Posted by Disinclined View Post
    A Black powder pistol is not considered a firearm in Texas. My question: Is it legal to open carry a black powder pistol in Texas. I have a CHL so I'm just wondering. I have had yes and no answers by LEOs that I know.

    Thanks

    Richard
    If it's not considered a firearm, why would you have a problem? Guitars aren't considered firearms in Texas, can you strap one to your back and walk down the street?

    I'm not a lawyer...but it seems like your answer could be kind of obvious.

    Also, to the best of my knowledge (Have a friend who lives in Texas and has a few BP's) Black Powders are considered Novelties, so anyone can carry them, concealed or open, no matter what past you have, where you live, your age, etc.
    Last edited by MikeTheGreek; 02-01-2013 at 10:54 AM.
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    A guitar is not a weapon. Even if an item is not a firearm, there may be laws regarding carry--if it is a weapon. In fact, since firearms are what most people (including legislators and judges) think of in conjunction with the word "arms" in the 2A, many States have laws against various forms of carry of various weapons that aren't firearms--laws that would be immediately tossed as unconstitutional if applied to firearms. In fact, in States with preemption, you can be fairly certain of gun laws throughout the State, but not so with weapons that are not firearms! So, watch out for local laws. You may be behaving perfectly legally, cross an imaginary line, and become a criminal!

    For example, in Ohio, if I have any blade in my pocket, regardless of how short, I am carrying a concealed weapon--which is illegal, even with a license. Make it a gun, and now it is legal with that license, in every jurisdiction in the State.

    My point is, do not accept what anyone else says the law is regarding black powder pistols in Texas. Folks who live in Texas can help guide you through Texas law on weapons and firearms, but make sure you read it for yourself.

    If I had to guess, and I freely admit that I know zero about Texas law, carrying a black powder gun openly would likely violate either firearms laws in specific or weapons laws in general. To determine which laws would apply, look for the sections of the code that define the terms "firearm" and "weapon."

    Now, just a bit of opinion: Why don't the courts consider knives as "arms" under the 2A. Why can States make virtually any law they wish regarding knives when the same laws would be unconstitutional regarding firearms. It should not be that way.

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    BP open carry

    Thanks for the input

    As usual, nothing is simple down here in Tejas. I have read the statutes and talked to various local and state LEOs and lawyers, the answer I'm getting from these highly trained professionals is a definite maybe. Just seems to be up to the cop on the beat that you come across. Guess Ill continue to CC one of these new fangled automatic pistolas.

    Thanks again
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    There should be a firm answer.

    Again, start with the definitions of "firearm," "weapon," "deadly weapon," etc. What does the black-letter law say that the device is?

    Oh, and never ask a police officer what the law is. They know the mythology cold, but they're a bit shaky on the law.

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    BP open carry in Texas?

    There doesn't seem to be an exception for black powder. The current definition of "firearm" does seem to cover black powder.

    I had heard the same thing for years, and the laws may have changed.

    The exception to PC 46.01 (3)(B) could be applied to muzzle or cylinder-loaded black powder guns. However, it seems that the exception makes legal a replica that would be illegal due to an illegal feature. It does not make the gun a "non-firearm."

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by nonameisgood View Post
    There doesn't seem to be an exception for black powder. The current definition of "firearm" does seem to cover black powder.

    I had heard the same thing for years, and the laws may have changed.

    The exception to PC 46.01 (3)(B) could be applied to muzzle or cylinder-loaded black powder guns. However, it seems that the exception makes legal a replica that would be illegal due to an illegal feature. It does not make the gun a "non-firearm."
    I was going to mention 46.01 (3)(A) which doesn't seem to stipulate that it be a replica, just that it was manufactured before 1899... I can't say I understand what the original writer was getting at. To me the English seems pretty terrible. But,

    (3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

    (A) an antique or curio firearm manufactured before 1899; or

    (B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

    http://www.statutes.legis.state.tx.u.../htm/PE.46.htm

    Not sure. I hate wording like this.

    Edit: Ohh, I think I see what you were getting at with the "does not use rim fire or center fire ammunition"
    Edit 2: Ohh, nevermind. DOH!!
    Last edited by stealthyeliminator; 02-09-2013 at 11:46 PM.

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    Keep in mind the Texas law may use handgun in place of firearm for carry laws. Just as they do in NC. Even though a BP is not a firearm by NC or Federal law, concealed carry offense is for weapons. Concealed carry permits are for handguns. So carrying a BP concealed with out a privilege card would result in an arrest. Here we can carry large blade knives as long as they are not concealed, a small pocket knife can be carried without a permit. Just like Ohio carrying a concealed fixed blade knife is an offense even with a privilege card.

    I once resided in Texas but that has been so long ago the laws probably have changed since I was there. Do not trust a police officer, read the laws and also check the court opinions.
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    Regular Member rushcreek2's Avatar
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    Under Texas law- 46.01 (3) -a pre-1899 Colt revolver is NOT a "firearm".

    It is NOT a "handgun" either, because 46.01 (5) defines a "handgun" as FIRST AND FOREMOST A "FIREARM"(which it is not) - that is designed, made, or adapted for use with only one hand.

    Openly sporting one of these perfectly functional, and loaded "antiques" does not meet the test for 46.01(a) applicability because it is simply NOT a "handgun".

    Neither does it meet the test of 46.035(a) -intentional failure to conceal a handgun by a licensee -for the same reason - it is not a "handgun" under Texas law for the forestated reason.

    Here's the only snag I can see - it COULD meet the test of 42.01 (a)(8) display of a DEADLY WEAPON in public in a manner calculated to cause alarm.

    It is clearly a DEADLY WEAPON (if functional & loaded) - even though it is not a "firearm", or a "handgun" - under Texas law. That's why some folks carried them CONCEALED prior to enactment of the CHL law. Texas still has no law defining concealed carry in and of itself as a criminal offense - unlike most states.
    Last edited by rushcreek2; 02-11-2013 at 08:56 PM.

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    PC 46.02:
    "...
    (3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
    (A) an antique or curio firearm manufactured before 1899; or
    (B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition..."

    The first sentence says that a black powder gun is a firearm. The second sentence applies to guns with illegal characteristics AND is either (A) or (B). This oddly-worded provision may intend to exempt ALL antiques and curios of that age, and replicas of those, but it is not really clear. Do you know if this provision had been amended recently?

  11. #11
    Regular Member rushcreek2's Avatar
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    Regardless of the rationale for exempting pre-1899 "curios", "antiques", and post-1899 "replicas" that do not fire modern ammunition from Chapter 46 applicability, they are nevertheless exempted.

    Although such firearms are NOT "firearms" pursuant to Chapter 46, they exhibit recognizable features identifying them as firearms, and would therefore invoke an identical public reaction despite the fact that they are not "firearms", or "handguns" under Chapter 46.

    There are some obvious intersections of State, and federal law - such as schools, courthouses, and airport secure areas where this would likely be considered a distinction without a difference on the grounds that the exemption was never intended to facilitate threats to public safety.

    Texas case law also draws a distinct line between certain special circumstance exceptions and "habitual" practices.

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