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Thread: Three Men ‘Illegally’ Arrested for Openly Carrying ‘Black Powder’ Pistols in Texas –

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    Three Men ‘Illegally’ Arrested for Openly Carrying ‘Black Powder’ Pistols in Texas –

    Three people were reportedly arrested on Friday for openly carrying Civil War-era pistols during a pro-gun protest outside the Texas Capitol. Gun rights activists tell TheBlaze the arrests were unlawful as it is legal in Texas to openly carry a pre-1899 antique firearm.

    Terry Louis Holcomb, 44, identified as a Huntsville-area pastor, and Scott Douglas Smith, 50, a military veteran from San Antonio, and Gary Hayes, a quadriplegic, were reportedly arrested by state troopers in Austin and charged with disorderly conduct, which is defined, by law, as an action with a firearm “calculated to alarm.”

    However, witnesses say the men, one of which was in a wheelchair, had their “black powder” pistols holstered and weren’t causing alarm in any way. More than a dozen other gun-rights activists openly carrying rifles walked free.

    Under Texas law, a gun manufactured before 1899 isn’t even considered a “firearm,” therefore not subject to open carry laws:

    (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.

    All three of the arrests were reportedly caught on video and uploaded on YouTube. In the first video, an individual presses police to clarify how the pro-gun activist was carrying his pistol (holstered) in a way “calculated to alarm.”

    http://www.theblaze.com/stories/2013...-were-illegal/

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    Lots of pictures at the link

    This is some serious activism.

    Nothing like police arresting a disabled veteran for exercising his constitutional rights.
    Last edited by ccwinstructor; 09-15-2013 at 12:00 AM. Reason: changed civil to constitutional

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    Campaign Veteran MAC702's Avatar
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    Kudos to these gentlemen for taking one for the team. They will beat the rap and perhaps the ride will make a difference (even if a dent) overall.
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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    Regular Member HPmatt's Avatar
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    Quote Originally Posted by MAC702 View Post
    They will beat the rap
    Don't know about beating the rap - Austin is Travis County - the bluest in Texas - don't know if the DA would not lie to the Grand Jury about this exception to the law. It might take longer than otherwise unless they've got a great attorney.
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    Regular Member independence's Avatar
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    I also have a thread about this here:

    http://forum.opencarry.org/forums/sh...arrested-today

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    I would like to know how they intend to justify what appears to be an unlawful arrest.

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    Quote Originally Posted by jordanmills View Post
    I would like to know how they intend to justify what appears to be an unlawful arrest.
    I suspect it will be "emphatically" LOL
    RIGHTS don't exist without RESPONSIBILITY!
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    If the above makes me a RADICAL or EXTREME--- So be it!

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    Good job gentleman.

    Now please seek a good constitutional rights attorney and seek redress in Federal Court file under violation of USC 42 section 1983.

    Its a no brainer and your attorneys will recoup all fees from the defendants.

    So what is the justification for denying a law abiding citizen his right to bear arms and not be unlawfully arrested for exercise that right? Let's see.

    How about you start them at say $2,000,000

    Best regards

    CCJ

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    Regular Member Golden Eagle's Avatar
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    So what is the exact Texas law that says a handgun can't be in view?
    All I can find is this law that to me clearly says it can't be in view in a vehicle.

    Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
    (1) on the person's own premises or premises under the person's control; or
    (2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or 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:
    (1) the handgun is in plain view; or
    (Which seems ok to me because if someone can see it out your car window you're probably doing a drive by)
    Last edited by Golden Eagle; 09-17-2013 at 02:14 PM.
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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by Golden Eagle View Post
    So what is the exact Texas law that says a handgun can't be in view?
    All I can find is this law that to me clearly says it can't be in view in a vehicle.



    (Which seems ok to me because if someone can see it out your car window you're probably doing a drive by)
    The part that makes it illegal is the part that says "(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:" Everything below that is just exceptions, but the rule is that it's illegal. So, it's illegal unless it's in a vehicle, but then if it's in a vehicle and in plain view it's still illegal. It's pretty convoluted.

    So, it's not that it's in view, it's that he had it at all. He was intentionally and/or knowingly carrying on or about his person a handgun - except it supposedly wasn't a handgun as defined in Texas law.

    Then if you have a CHL and carry concealed, you have a whole 'nother set of rules elsewhere in the law.
    Last edited by stealthyeliminator; 09-17-2013 at 06:47 PM.

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    Quote Originally Posted by Golden Eagle View Post
    So what is the exact Texas law that says a handgun can't be in view?
    All I can find is this law that to me clearly says it can't be in view in a vehicle.
    The other is 46.035:

    UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
    And just to be clear, 46.02 only requires concealment under its limits, which is in a motor vehicle when not on a journey.

    For every other instance in which it's legal to carry a handgun, the mode isn't specified. That includes on a journey, on property you own or control, or while engaged in (or en route to and from) porting activity commonly requiring use of a handgun.

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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by KBCraig View Post
    ...And just to be clear, 46.02 only requires concealment under its limits, which is in a motor vehicle when not on a journey....
    I'm in Texas a couple times a year. Do they define "journey?"
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    Regular Member stealthyeliminator's Avatar
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    I don't recall there being any exception for when someone is on a journey... When I run a search for the keyword 'journey' against the penal code I get nada. Sure you weren't thinking of Arkansas?

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    Quote Originally Posted by stealthyeliminator View Post
    I don't recall there being any exception for when someone is on a journey... When I run a search for the keyword 'journey' against the penal code I get nada. Sure you weren't thinking of Arkansas?
    You're right, the correct word is "traveling".


    Quote Originally Posted by MAC702 View Post
    I'm in Texas a couple times a year. Do they define "journey?"
    No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

    But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

    46.15 NONAPPLICABILITY
    (b) Section 46.02 does not apply to a person who:
    (2) is traveling;
    (6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by KBCraig View Post
    You're right, the correct word is "traveling".



    No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

    But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

    46.15 NONAPPLICABILITY
    (b) Section 46.02 does not apply to a person who:
    (2) is traveling;
    (6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
    I don't think I ever knew that was there :O

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    Campaign Veteran smellslikemichigan's Avatar
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    they returned all but the black powder revolver... not sure why
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    Regular Member We-the-People's Avatar
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    Quote Originally Posted by KBCraig View Post
    You're right, the correct word is "traveling".



    No, they don't. There is no statutory nor statewide case law defining "traveling" in Texas. That's why they added the motorist protection act, so that it doesn't matter if you're traveling so long as you're in a motor vehicle you own or control.

    But, that's not the only way to travel. People travel by foot, by bicycle, and still by horse and wagon. If one is traveling, there is no requirement that it be concealed, because 46.02 doesn't apply -- exactly the same as it doesn't apply to someone carrying a concealed handgun with a license.

    46.15 NONAPPLICABILITY
    (b) Section 46.02 does not apply to a person who:
    (2) is traveling;
    (6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
    So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?
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    Regular Member rushcreek2's Avatar
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    Quote Originally Posted by We-the-People View Post
    So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?
    IANAL.....but.......

    If I may rephrase your question slightly , I believe the answer will reveal itself.

    "So you are saying that if I am ON FOOT and carrying a concealed pistol and a valid license under Subchapter H, Chapter 411, Government Code, that I am NOT SUBJECT TO the provisions of 46.02 ? "

    Answer: YES [ citing 46.15(b)(6) ] IF..... the CHL exception is authenticated by the presentation of a valid CHL.

    Answer to your question: YES [ citing 46.15(b)(2) ] IF..... the traveling exception is authenticated by the presentation of indices of legitimate engagement in a process readily recognizable by any reasonably minded person as constituting a journey.

    Texas courts have never exhibited any interest in stretching the term "traveling" beyond legitimate engagement in a process that may readily be recognizable by any reasonably minded person as constituting a journey.

    As we have seen recently even though a pre-1899 black powder revolver may very well not be a "handgun" - or even a "firearm" for that matter - under Texas law, the burden of proof seems to rest on the person carrying one to be able to present authentication of that fact.

    Same "rule of thumb" logic would seem to apply to the traveling exception under 46.15(b)(2).

    This is my take away from how one Texas court addressed the "traveling" exception in Moosani v Texas.

    www.ptexans.com/moosani.htm
    Last edited by rushcreek2; 09-26-2013 at 12:21 AM.

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    Quote Originally Posted by We-the-People View Post
    So are saying that if I am travelling on foot between two cities, that I am, under 46.15, able to open carry a pistol and not be subject to 46.02?
    It's not just my opinion. It's the law that 46.02 doesn't apply to someone who is travelling. Open or concealed dooesn't matter.

    It's the exact same law that makes 46.02 not apply to someone who is carrying a concealed handgun and a valid CHL.
    Last edited by KBCraig; 09-25-2013 at 09:23 PM.

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    Regular Member hammer6's Avatar
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    so is it like it is in florida for open carry going to/from or engaged in fishing? meaning, if you stop on your travel for lunch, are you allowed to carry? because in florida, consensus is that if you are not going directly to fishing or coming from fishing, you can not open carry (ie: stopping at walmart on your way to the pier is not included)

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    I haven't hunted, or fished in Texas in many years....in Texas - I just "travel".

    I limit my display while traveling to those activities reasonably proximate to my vehicle, and tangential to the journey - fueling at the pump, rest area stops, walking the dog, and when entering or exiting my motel room.

    I usually do not open carry across private thresholds when traveling in Texas- such as meal stops. During my traveling in Texas - I have on 2 occasions discouraged opportunistic interest, and advances in my direction by being visibly armed.

    Most people don't know this nuance of Texas law- so I don't push the envelope . I also make an effort to dress, present , and conduct myself in a manner that should not cause any reasonable person to experience "alarm" - and I haven't yet.

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    Regular Member rushcreek2's Avatar
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    I have a sense that critical mass may not be too far off in the effort by Texans to shrug off the 142 year old legacy of Reconstruction Governor E.J. Davis.

    Governor E. J. Davis may have had the best intentions in 1870, when he called for a prohibition -except for the "frontier"- on the carry of any weapons other than shotguns, and rifles by "every citizens" in Texas. (Disarmament Act of April 12, 1871)

    This is where the "traveling" exception under 46.15(b)(2) actually derives from.

    That's why "traveling" from Arlington, Texas to Grand Prairie, Texas in 2013 may not seriously be deemed to constitute "traveling" in Texas as it did in 1875. There isn't much "frontier" separating those two municipalities( at least none that a shotgun or rifle can't deal with).

    Now if I'm traveling between Arlington, Texas and San Angelo, Texas ...there's a bit of " frontier " here and there.

    Here's the deal - at least as I see it .

    That 1871 Law was passed under the 1869 Texas Reconstruction Constitution - which was pretty pitiful in the RTKBA department to be charitable.

    Along comes 1876, and the current Texas Constitution which says absolutely nothing about categories of weapons(shotguns, rifles, handguns) - only the "WEARING OF ARMS".

    The 1876 Texas Constitution slacked off just a bit from the Reconstruction mindset, and allowed for "every citizen" in Texas to be armed in the lawful defense of him(her)self - while only reserving discretionary power for the Legislature to regulate by law the WEARING of weapons - WITH A VIEW TO PREVENT CRIME.

    The "WEARING OF ARMS" thing is problematic because it has correctly been construed to apply to handguns, knives, and clubs - which are readily CONCEALED - to which condition a "view to prevent crime" is reasonable attachable.

    OK - then. Now that Texas has a provision under its laws to LICENSE handgun "WEARERS" - to ensure that they are NOT IN FACT CRIMINALS - what lingering reason exists for requiring that those "every citizens" must CONCEAL their arms at all times ?

    NONE - because the caveat " with a view to prevent crime " has been more than satisfied.

    The only remaining " with a view to prevent crime " concern attached to display of a licensed handgun would have to be DISORDERLY CONDUCT 42.01 (a)(8). That particular concern is addressed if the LICENSED handgun is secured in a holster =it is NOT DISPLAYED - it is IN FACT - STORED.

    I'm still hopeful for an Attorney General law enforcement advisory opinion to be issued to D.A.'s, and LE agencies clarifying what I have just stated.

    ATTORNEY GENERAL Gregg Abbott....future Governor of Texas.... WHAT SAY YOU ?
    Last edited by rushcreek2; 10-10-2013 at 09:02 PM.

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    Regular Member rushcreek2's Avatar
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    In other words...............IN A COURT OF LAW........I would argue that - since the State of Texas has bestowed upon me the privilege of EXERCISING MY RIGHT TO BE ARMED IN LAWFUL DEFENSE OF MYSELF by carrying a handgun precisely because I have been determined not to be a threat to public safety, there is no CONSTITUTIONAL reason for the State of Texas to require me to CONCEAL said handgun.

    What say YOU ?
    Last edited by rushcreek2; 10-11-2013 at 02:20 PM.

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