Results 1 to 24 of 24

Thread: Open Carry legally available now, but READ ON

  1. #1
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    Hello all,

    I throw this out to this esteemed group as the executive summary with the details presented later in the post: you can openly carry, in public, in Texas, right now so long as your firearm was manufactured before 1899 (1898 and earlier). :celebrate

    I am NOT a lawyer and don't rely on me. Read it yourself or have your legal counsel do it. Legal and "not gettting arrested" are two different things. If you do this, you will probably get arrested. I don't do it because I don't want to be the test case. Police officers (almost certainly) and even prosecutors will probably NOT understand this initially. I doubt is comes up very often. The adage that "you can beat the rap but you can't beat the ride" applies! In the end, I think such charges would never stick but I'm admitting up front I'm not willing to chance it myself. That doesn't make is any less legal; I just don't have a wallet that let's me fight the government.

    DETAILED REASONING

    The place to begin is at Penal Code section 46 which is entitled "Weapons". Here it directly from the State of Texas website at http://tlo2.tlc.state.tx.us/statutes...0.htm#46.01.00:

    PENAL CODE

    TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS

    CHAPTER 46. WEAPONS

    ยง 46.01. DEFINITIONS. In this chapter:
    (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.
    (4) "Firearm silencer" means any device designed,
    made, or adapted to muffle the report of a firearm.
    (5) "Handgun" means any firearm that is designed,
    made, or adapted to be fired with one hand.

    Notice the definition offirearm and thenhandgun which inherits from firearm. It certainly appears to me that if your firearm was manufactured before 1899, whether or not it possesses a knife or other feature (the word may is crucial there), it is NOT considered a firearm for the purposes of this section. To post all of the relevant sections would be unwieldy, so having posted the exact language of the most crucial section, I am going to resort to references. Using the link above you can access any of them.

    Carrying a handgun is generally illegal in Texas because of seciton 46.02 Unlawful Carrying of a Weapon (UCW). There are exceptions in 46.15 and this is how peace officers and CHL-holders, among others,are able to do so. The key point is that Section 46 contains the key language that regulates weapons including how and where they can be carried.

    If a pre-1899 handgun truly is exempt from all of the prohibitions of section 46, then there is no regulation of how or where you can carry such a weapon that I am aware of (with the possible exception of the "disorderly conduct" statute which I believe isn't serious problem but I can address itif anyone is interested). Why? Because you are exempt from 46.02 which says you can't carry a handgun and 46.03 which defines "Places Weapons Prohibited" as well as every other subsection of section 46! Forget all of the CHL stuff with 51% and 30.06 and court offices, etc. If your sidearm is exempt from all of section 46, none of these areas are prohibited by law. See above about getting arrested as the officer doesn't know this!

    Bottom line summary (again, IANAL): section 46 contains all of the restrictions on carrying weapons (that I am aware of) and your firearm is exempt from scope of section 46. Given this, I don't see any restriction on how or where you carry. It is NOT a coincidence that a pre-1899 weapon is also not considered a firearm for the purposes of federal law. Any FFL should be able to confirm this. These are "antiques" and not subject to the usual procedures. You can buy one, across state lines, sent directly to your door without an FFL being involved. This MIGHT (I have NOT researched this) mean that national parks, post offices, etc. are no longer legally off-limits (to whatever extent they are now). The real point is that by carrying a pre-1899 firearm, you are exempt from many, if not all, restrictions not just from Texas law but from federal law as well!

    My personal opinion is that having one or two pre-1899 handguns would be a good thing and just might save your bacon if you found yourself in a situation not covered by your CHL. Openly carrying them, while legal, will earn you a quick trip to the pokey and until there is a court case or AG's opinion confirming the legality of it, I won't do it but that doesn't mean others shouldn't know the option is available. Hopefully someone out there can slay that dragon for us. Anyone?

    Thoughts?

    SA-TX

  2. #2
    Regular Member
    Join Date
    Nov 2006
    Location
    Mag-bayonettes!, Virginia, USA
    Posts
    1,407

    Post imported post

    At least this time, if a newspaper calls it a cowboy gun-slinger law, they MAY be historically correct. > )
    -Unrequited

  3. #3
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    Not going into great detail, the short story is, this law and definitions were modeled after the Federal law addressing the same topic (almost verbatim) and is referring to Black powder weapons. The definition of antique firearm is made in federal law and clearly indicates it to be a black powder firearm that does not use rim fire or center fire ammunition.

    Black powderguns are not classified as firearms underfederal or state law and, thus, can be carried legally. In fact, no FFL is needed to purchase one, they can be mail ordered and convicted felons can legally possess them.

    In short, the YES, you can carry a black powder revolver in Texas if you wish. If memory serves me correct, this haseven been before theTexas Supreme Court and was upheld there, as well.

    Doc

  4. #4
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    Doc, I agree that black powder weapons are covered, but I disagree that the firearm MUST be black powder. Replicas of pre-1899 weapons cannot use rimfire or centerfire ammo, but I don't see why a truly pre-1899 weapon can't use, say, .38 S&W which is still commercially available. This is true at the federal level, as well. For example, if you want to buy an S&W "lemon squeezer" that is pre-1899, you can receive it without FFL involvement and it is NOT a black powder weapon.

    If you could find a reference to the Texas Supreme Court case, I'd love toread it. Carrying a black power pistol isn't all that appealing, but a nice .38 S&W, or .44, or a pocket derringer might be useful, particularly if there is any uncertainty about CHL rules. Pre-1899 = no rules.

    SA-TX

  5. #5
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    SA-TX wrote:
    Doc, I agree that black powder weapons are covered, but I disagree that the firearm MUST be black powder. Replicas of pre-1899 weapons cannot use rimfire or centerfire ammo, but I don't see why a truly pre-1899 weapon can't use, say, .38 S&W which is still commercially available. This is true at the federal level, as well. For example, if you want to buy an S&W "lemon squeezer" that is pre-1899, you can receive it without FFL involvement and it is NOT a black powder weapon.

    If you could find a reference to the Texas Supreme Court case, I'd love toread it. Carrying a black power pistol isn't all that appealing, but a nice .38 S&W, or .44, or a pocket derringer might be useful, particularly if there is any uncertainty about CHL rules. Pre-1899 = no rules.

    SA-TX

    You have to refer to the definition of an antique firearm, which is established by federal law and used by Texas. Under that definition, the firearm must not use rim fire or center fire ammunition. In order to meet the requirements of the sections you are referring to, the firearm must be an antique, and an antique is a black powder by definition. Replicas are specifically required to meet the same requirements because otherwise someone could argue that it is not an antique, rather a replica, and as such does not have to be black powder (sort of the argument you are using in reverse). So, since antiques are already defined as black powder and this law specifically defines replicas as black powder, only black powder firearms are allowed.


    Also, the federal version goes as far as to stipulate that the firearm can not have been converted to use rim or center fire ammo in order to prevent one fromarguing that the firearm was a black powder despite the fact that it was altered or converted.


    I do not have them readily available, but it is easy to search, so look up the federal statutes on the subject as well as the Texas Supreme court case on the subject.

    Doc


  6. #6
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    DocNTexas wrote:
    SA-TX wrote:
    Doc, I agree that black powder weapons are covered, but I disagree that the firearm MUST be black powder. Replicas of pre-1899 weapons cannot use rimfire or centerfire ammo, but I don't see why a truly pre-1899 weapon can't use, say, .38 S&W which is still commercially available. This is true at the federal level, as well. For example, if you want to buy an S&W "lemon squeezer" that is pre-1899, you can receive it without FFL involvement and it is NOT a black powder weapon.

    If you could find a reference to the Texas Supreme Court case, I'd love toread it. Carrying a black power pistol isn't all that appealing, but a nice .38 S&W, or .44, or a pocket derringer might be useful, particularly if there is any uncertainty about CHL rules. Pre-1899 = no rules.

    SA-TX

    You have to refer to the definition of an antique firearm, which is established by federal law and used by Texas. Under that definition, the firearm must not use rim fire or center fire ammunition. In order to meet the requirements of the sections you are referring to, the firearm must be an antique, and an antique is a black powder by definition. Replicas are specifically required to meet the same requirements because otherwise someone could argue that it is not an antique, rather a replica, and as such does not have to be black powder (sort of the argument you are using in reverse). So, since antiques are already defined as black powder and this law specifically defines replicas as black powder, only black powder firearms are allowed.


    Also, the federal version goes as far as to stipulate that the firearm can not have been converted to use rim or center fire ammo in order to prevent one fromarguing that the firearm was a black powder despite the fact that it was altered or converted.


    I do not have them readily available, but it is easy to search, so look up the federal statutes on the subject as well as the Texas Supreme court case on the subject.

    Doc
    Hi Doc,

    I respectfully disagree.Neither 46.01 nor any other Texas statue defines "antique firearm" or "curio firearm" or "antique or curio firearm". Even just "curio" only turns up in PC 46.01 and "antique" has several hits but only the one relating to firearms. I searched here: http://tlo2.tlc.state.tx.us/statutes/index.htm.

    Whether or not Texas law makes a distinction between pre-1899 firearms that are "regular firearms" --in your view,those that are not black powder -- and those that are "antique or curio firearms"is unclear and debatable. Notice that "black powder" appears nowhere. Notice that a reference to federal law definitions appear nowhere. The Legislature knows how to make such references when they want to (see 46.03 for machine guns where they refer to the NFA as a defense to prosecution).

    As for replicas, that is a relatively new twist to TX law passed in 1999 (see here: http://www.legis.state.tx.us/tlodocs...l/HB02825F.HTM). I believe that this was done to more clearly match federal law. Prior to that, no replics qualified as "antiques" no matter what they shot. I agree with you that the requirement for no centerfire or rimfire ammo means you can't "have the best of both worlds" (new gun that looks retro and qualifies as an antique). That does not mean, however, that all pre-1899 guns aren't antiques no matter their ammo.

    My research on federal law is taken from here: http://uscode.house.gov/uscode-cgi/f...20%20%20%20%20

    Here is the definition that appears there:


    (16) The term "antique firearm" means -


    (A) any firearm (including any firearm with a matchlock,


    flintlock, percussion cap, or similar type of ignition system)


    manufactured in or before 1898; or


    (B) any replica of any firearm described in subparagraph (A) if


    such replica -


    (i) is not designed or redesigned for using rimfire or


    conventional centerfire fixed ammunition, or


    (ii) uses rimfire or conventional centerfire fixed ammunition


    which is no longer manufactured in the United States and which


    is not readily available in the ordinary channels of commercial


    trade; or



    (C) any muzzle loading rifle, muzzle loading shotgun, or muzzle


    loading pistol, which is designed to use black powder, or a black


    powder substitute, and which cannot use fixed ammunition. For


    purposes of this subparagraph, the term "antique firearm" shall


    not include any weapon which incorporates a firearm frame or


    receiver, any firearm which is converted into a muzzle loading


    weapon, or any muzzle loading weapon which can be readily


    converted to fire fixed ammunition by replacing the barrel, bolt,


    breechblock, or any combination thereof.


    My reading of this is that there are (3) types of "antique firearms" and you identified 2 of them :

    1) Those that are pre-1899 and then they specifically list some of the ignition systems that qualify but you could eliminate the whole parathentical group and it is clear to see that all pre-1899 firearms qualify whether or not the ignition system is listed.

    2) Replicas, which you accurately discussed in your post.

    3) Muzzleloading firearms which you accurately discussed in your post.

    As I mentioned in my prior post, I can point to numerous pre-1899 guns for sale by FFLs (who darn well better be right) that are not black-powder based and who are labeled as antiques and not requiring any of the usual BATFE paperwork or FFL transfer (if across state lines).

    Here's what BATFE says from: http://www.atf.gov/firearms/faq/faq2.htm#a3

    (A3) Do antique firearms come within the purview of the GCA? [Back]


    No.

    [18 U.S.C. 921(a)(3) and (16), 27 CFR 478.11 and 478.141(d)]


    Notice the citation from the BATFE FAQ is exactly the provision, above.

    Just to muddy the water, federal law has another class of firearms: curios and relics. These are firearms that are 50 old or older (but presumably manufactured after 1898). You must have at least a C&R FFL to purchase these firearms interstate without going through an FFL who is a licensed dealer. Unfortunately, Texas law mixes the terms together ("antique or curio").

    In conclusion,

    1) While Texas law uses terms that confuse two different classifications of firearms under federal law, I think the 1899 reference makes it fairly clear: if it is pre-1899, it isn't a "firearm" for the purposes of Texas law no matter its operation.

    2) Federal law is clear that pre-1899 firearms are not "firearms" and don't fall within the GCA or Brady/NICS, and don't require an FFL to buy/sell interstate.

    If I goof in any of the above research, please let me know.

    SA-TX

  7. #7
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    Now that I have more time, I will expand on the above post. Here is the legal definition of an antique firearm:

    Title 18, Section 921(a)(16) then defines "antique firearm" as follows:


    "The term 'antique firearm' means -

    (A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; and

    (B) any replica of any firearm described in subparagraph (A) if such replica -


    (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or

    (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade."
    As you can see, (B)(ii) of the federal definition left a small loophole in the ammunition requirement for replica firearms by allowing for the use of rim or center fire ammunition not manufactured or readily available in the United States, however, Texas closed that loophole by expressly redefining the requirements for replicas to omit that allowance.

    As you can see, by definition, antique firearms must be blackpowder and by state law, replicas must be as well, therefore, only black powder handguns are legal to carry under the provisions of Texaslaw.

    Hope this helps.

    Doc

  8. #8
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    SA-TX wrote:
    My reading of this is that there are (3) types of "antique firearms" and you identified 2 of them :

    1) Those that are pre-1899 and then they specifically list some of the ignition systems that qualify but you could eliminate the whole parathentical group and it is clear to see that all pre-1899 firearms qualify whether or not the ignition system is listed.

    2) Replicas, which you accurately discussed in your post.

    3) Muzzleloading firearms which you accurately discussed in your post.

    As I mentioned in my prior post, I can point to numerous pre-1899 guns for sale by FFLs (who darn well better be right) that are not black-powder based and who are labeled as antiques and not requiring any of the usual BATFE paperwork or FFL transfer (if across state lines).

    I feel you have misinterpreted the pertinent provision and understandably so. While the lawcan be read to state"All Firearms" then include those with specific types of ignition, this is not the case. There is no reason to include specific types of ignition if the statement is "All types", since no exclusion is implied by the term "All Firearms".The actual intent is to define which firearm types are included by stating "those with matchlock, flintlock, percussion cap, or similar type of ignition system". This is further upheld by the reasoning that why would they alloy you to carry a pre-1898 firearm capable of utilizing rim or center fire ammunition but specifically prohibit it for replicas of the same firearms?

    While one could argue the intent of the writers of this law as to which way to read it, it actually comes down to the interpretation developed through case law, which is basically the way it has been historically interpreted ans applied by the courts. Case law has determined this law to refer to those firearms with the listed types of ignition systems and not "All Firearms" as some read it to say.

    While I can not say what the original author intended, I know how the courts view and apply the law and that is really all that matters. I would like to apply the reading that you interpret, but that has long been put down by the establishment of case law to the contrary and the only way to change it now is to rewrite the law.

    It would be nice if the laws were straight forward and clearly written, but then we would have to find jobs for a lot of lawyers.

    Take care and be safe,
    Doc

  9. #9
    Regular Member
    Join Date
    Dec 2007
    Location
    Firestone, Colorado
    Posts
    1,189

    Post imported post

    DocNTexas wrote:

    As you can see, by definition, antique firearms must be blackpowder and by state law, replicas must be as well, therefore, only black powder handguns are legal to carry under the provisions of Texaslaw.

    Hope this helps.

    Doc
    I don't see this in the law you quoted. What I see is that if a gun more than 109 years old then it qualifies as a legal antique by provision (A). The parenthetical clause (including...) does not imply that other 109+ year-old guns aren't antiques, and the restrictions on replicas from (B)(i) and (B)(ii) are completely irrelevent if the gun isn't a replica but in fact the real, original McCoy.

    Now, whether or not you'd actually trust, say, a Colt Peacemaker manufactured in 1880 to fire without blowing up in your face, or if you'd want to actually risk damaging such an important antique by shooting it, are separate issues.

  10. #10
    State Researcher
    Join Date
    May 2007
    Location
    , New Hampshire, USA
    Posts
    67

    Post imported post

    Doc:

    The Federal definition of "antique firearm" as posted above does include centerfire or rimfire weapons that were manufactured in or before 1898. I personally own several pre-1899 centerfire weapons that are not considered firearms under federal law.

    If you go to gunbroker.com and look in the category "Firearms (Collectible) > Antiques / pre-1899" you will see many examples of pre-1899 centerfire weapons being sold as antiques and not needing a FFL to complete the transaction.


    Edit to add: The following locations have more stringent laws and consider pre-1899 centerfire weapons to be firearms: NJ, DC, NYC, IL, HI, and OH.


  11. #11
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    +1. I agree with this reading (two posts up -- I thought I was quoting). All means all and then some examples follow.

    I further agree on replicas, though I think this detracts from the core discussion which is: are all pre-1899 handguns not "firearms" for the purposes of Texas law. I say that they are.

    Doc, we may have to agree to disagree. Including simply gives some examples but isn't exclusionary. Ask some FFLs. There are too many examples of pre-1899 firearms listed for sale by FFL holders that are NOT black powder that specifically state paperwork and FFL transfer isn't necessary for your reading to be correct.

    +1 for the poster from NH. He has several and I'm looking at buying some. They are all over and all of th FFL selling them agree with our interpretation.

    SA-TX


  12. #12
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    In an effort to get a more informed opinion, I called a clay shooting partner of mine (and gun enthusiast) who is a District Judge and asked his opinion on this subject. His initial response was the same as my understanding, that being, only black powder handguns are exempt, however, after discussing several of the points brought out here, he offered to research it further and get back to me, so I will pass that information along if and when he gets back to me (with his schedule, it may be a while).

    In the meantime, as I stated before, I understand how you reached the decision you have based on the wording of the laws in question, however, this is not the position the courts have typically held and case law is the defining factor at this point. As such I still hold that only black powder handguns meet the requirements of thelaw as established.

    Again, I agree with the implied "All pre-1899" inclusion based on the wording, however, the interpretation of laws is based almost exclusively on case law and I have never found a case where a rim or center fire handgun was not considered a firearm for criminal law purposes (which includes unlawful possession cases, which is what we are talking about here).

    As you said, wemay simply have to agree to disagree, but I highly suggestone contact an attorneybefore choosing to carry anything other than a black powder handgun openly in Texas. While I figure carrying anything openly, even a black powder,will get you detained and probably arrested, I am fairlycertain you will have little defense unless it is a black powder. Regardless of what any of us say or what any particular judge or attorney says for that matter, the only opinion that really matters is that of the ones presiding over ones trial (and I don'ttrust them to rule in my favor).

    I say we simply push harder to get open carry passed inTexas and make this discussion a mute point.

    Take care all and be safe,

    Doc


  13. #13
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    MarkNH wrote:
    If you go to gunbroker.com and look in the category "Firearms (Collectible) > Antiques / pre-1899" you will see many examples of pre-1899 centerfire weapons being sold as antiques and not needing a FFL to complete the transaction.
    Yes, I agree, but none of them chamber currently available ammunition. The 1898 designation encompasses only firearms of black powder and those using rim and center fire ammunition no longer manufactured in the USA or available on the common market here. This is why that wording was used in the distinction of replicas, because many replicas use currently made ammunition opposed to the original models.

    In other words, in order to be legal as an antique or a replica, it can not use modern (commonly available)rim or center fire ammunition. If it is an 1898 or older manufacture, it will not be chambered for such and if it is a legal replica, it will not as well.

    Doc

  14. #14
    State Researcher
    Join Date
    May 2007
    Location
    , New Hampshire, USA
    Posts
    67

    Post imported post

    DocNTexas wrote:
    MarkNH wrote:
    If you go to gunbroker.com and look in the category "Firearms (Collectible) > Antiques / pre-1899" you will see many examples of pre-1899 centerfire weapons being sold as antiques and not needing a FFL to complete the transaction.
    Yes, I agree, but none of them chamber currently available ammunition. The 1898 designation encompasses only firearms of black powder and those using rim and center fire ammunition no longer manufactured in the USA or available on the common market here. This is why that wording was used in the distinction of replicas, because many replicas use currently made ammunition opposed to the original models.

    In other words, in order to be legal as an antique or a replica, it can not use modern (commonly available)rim or center fire ammunition. If it is an 1898 or older manufacture, it will not be chambered for such and if it is a legal replica, it will not as well.

    Doc
    Sorry doc, but you are still mistaken.

    A few examples from gunbroker, all using commerially produced ammo:

    12 gauge: http://www.gunbroker.com/Auction/Vie...?Item=91869355
    20 gauge: http://www.gunbroker.com/Auction/Vie...?Item=91432159
    .22 short: http://www.gunbroker.com/Auction/Vie...?Item=91827969
    7.62x54r: http://www.gunbroker.com/Auction/Vie...?Item=91708543
    .45-70: http://www.gunbroker.com/Auction/Vie...?Item=92344924
    8mm mauser: http://www.gunbroker.com/Auction/Vie...?Item=92250353
    .44-40 winchester: http://www.gunbroker.com/Auction/Vie...?Item=91887699


    The pre-1899 specialist currently has:

    Colt SAA in .45LC
    Webley in .45ACP
    Colt SAA converted to .38 special
    Winchester 1894 in .30-30
    Chilean mauser converted to 7.62nato

    http://www.antiquefirearms.org/blog/


    pre-1899 FAQ: http://www.empirearms.com/pre-1899.htm

    If you still disagree you are welcome to call BATFE directly and ask them.

    Edit: to fix link.




  15. #15
    State Researcher
    Join Date
    May 2007
    Location
    , New Hampshire, USA
    Posts
    67

    Post imported post

    DocNTexas wrote:
    I say we simply push harder to get open carry passed inTexas and make this discussion a mute point.
    Now that's something I can agree with you on

  16. #16
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    As for the gunbroker list you identified, all of them require black powder ammunition, except for the Nagant and the Mauser. Although they use an ammunition designation that is equal to a modern made type, these all require black powder versions, which are not commonly manufactured. A pre 1899 handgun made to fire a 45 long colt is designed to fire 45 long colt black powder ammunition and not modern smokeless ammunition and all sources will tell you not to use modern ammunition in these weapons.

    As for the Nagant and the Mauser listed, I have no answer, except that several years ago I purchased 2 Mod. 96 Swedish Mausers and was told that no FFL was required because although the manufacture date was 1941, the receivers were made and barrelled in 1898 making them exempt. Just to make sure, I contacted the BATFE and was told that this was not correct and that the fabrication date was considered the latest date stamped on the weapon, thus, I had to use an FFL to transfer the weapon or possess a collectors license.

    As I stated before, based on the information I have found, I stand by my position and we will simply have to agree to disagree. I would certainly be willing to carry the video camera for anyone willing to strap one on and be the test case for us. Short of that, I will stick to my understanding of the law as it stands.

    Other than that, although I disagree with your position, I respect your opinion.

    Take care and be safe,

    Doc

  17. #17
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    DocNTexas wrote:
    As for the gunbroker list you identified, all of them require black powder ammunition, except for the Nagant and the Mauser. Although they use an ammunition designation that is equal to a modern made type, these all require black powder versions, which are not commonly manufactured. A pre 1899 handgun made to fire a 45 long colt is designed to fire 45 long colt black powder ammunition and not modern smokeless ammunition and all sources will tell you not to use modern ammunition in these weapons.

    As for the Nagant and the Mauser listed, I have no answer, except that several years ago I purchased 2 Mod. 96 Swedish Mausers and was told that no FFL was required because although the manufacture date was 1941, the receivers were made and barrelled in 1898 making them exempt. Just to make sure, I contacted the BATFE and was told that this was not correct and that the fabrication date was considered the latest date stamped on the weapon, thus, I had to use an FFL to transfer the weapon or possess a collectors license.

    As I stated before, based on the information I have found, I stand by my position and we will simply have to agree to disagree. I would certainly be willing to carry the video camera for anyone willing to strap one on and be the test case for us. Short of that, I will stick to my understanding of the law as it stands.

    Other than that, although I disagree with your position, I respect your opinion.

    Take care and be safe,

    Doc
    Hi Doc,

    No one said you wouldn't get arrested if you walked around openly carrying. Heck, I stated NUMEROUS TIMES in my original post that doing so would likely get you arrested. You said the same even in referenceto a cap-and-ball pistol. No matter what, local law enforcement is not going to understand this very subtle wrinkle in the law. The fact is, there are two responsibilites on those who want to see greater flexibility in defensive carry in TX:

    1) Push for full open carry of modern handguns. Either with a license (or endorsement to our CHLs) or without. Without pressure, politicians do nothing. There was a shooting on a university campus in IL tonight (one of the state for where there is NO ability to carry), so we need to keep the pressure on. Are we THAT much better in TX?! Not if you are on a university campus. Hmm. Wait, if my pre-1899 position is correct, at least you have ONE way to carry. Yes I'd love for nothing more than this discussion to be moot.

    2) Utilize the abilities that we have under current law. No, this doesn't necessarily mean anyone going to jail as the test case. We can push our state legislators to get an AG's opinion of what is currently legal. We can hold "open carry" rallys/BBQs/fund-raisers on PRIVATE PROPERTY but fax annoucements to LEOs and politicians far and wide about what we believe to be legal and invite them to attend. Even most city police officers understand that open carry is permitted on someone's private property. Being friendly and writing campaign contributionchecks works. Ask any big businessman.

    May I offer these for your analysis:

    You state the .45 Long Colt ammo is only designed for new guns. Some manufacturers do indeed say this (Buffalo Bore, as one example), others are "modern black powder" (see Cor-Bon)butothers appear to be moden smokeless with no such warningsnot touse them in older guns Here are some examples of each to demonstrate my fairness:

    http://www.doubletapammo.com/php/cat...roducts_id=131

    DoubleTap ammo is NOT standard pressure (+P) so it specifies the guns is is compatible with:

    http://www.dakotaammo.net/products/c...wboyaction.htm

    While it might be technically "black-powder" it is moden, commercial, high-grade, packaged ammo.

    http://www.midwayusa.com/ebrowse.exe...ring=653***691***

    No mention of not using it in older guns.

    http://www.blazer-ammo.com/blazer_chart.aspx

    Nor here from Federal, one of the biggest around:

    http://www.federalcartridge.com/ball...;bulletwgt=225


    S&W .38is still commercially available (see http://www.midwayusa.com/ebrowse.exe...ring=653***691*** showing 4 manufacturers and 6 total offerings), isn't black powder,and there are many guns for sale chambered in this caliber.

    NH's .44-40 example is also a good one. While SOME .44-40 ammo is black powder, some is smoke-less. See here (http://www.midwayusa.com/ebrowse.exe...ring=653***690***) for examples of both.

    Your example is an interesting one but somewhat unusual due to the fact that it was newer weapon with an older componant part. In most cases it is the receiver (think AR-15) or main portion of the gun that counts and is serialized. Copyright or patent dates mean nothing; it is the actual date of manufacturer of the serialized part of the weapon that matters. Given this it is not unusual that theATF, for the reasons we both agreed with above, classified it as a newer weapon not getting the protection of the "antique" designation.

    Hopefully your district judge friend will review it fairly. I agree that no matter what us poor working schmucks think, it is the lawyer's views that matter. This means we need to impress on our lawyer/judge/legislator friends how important this is. If there is grey area, we need the benefit of the doubt given to us, the law-abiding person. Even if you aren't convinced the law currently says what I and other say it does, please try to convince your District Judge friend that it does. Why? Cause it helps everyone. Don't you want ALL pre-1899 guns to be exempt from the crazy, non-rational restrictions placed in section 46? Don't you want to carry darn near everywhere in this state? Why shouldn't you? It is your right! Heck, our current governor, at least, gets it. When asked after the Virginia Tech massacre about similar restrictions in TX that prohibit CHLs from carrying on campus he said (and I'm pararphrasing), "why are there ANY restrictions?!" EXACTLY!

    Please keep looking and debating,

    SA-TX

  18. #18
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    I totally agree with your motives and, yes, I push for improving our laws at every turn. I correspond, telephone and have even met with out political powers on numerous occasions for that very purpose. Most recently I contacted the AG about increasing the effort to secure reciprocity with several states. I have discussed the issue of campus carry with my representatives and with Governor Perry. I have spoken to Alice Tripp on several occasions about these issues. Believe me, most of these people know me on sight and by name, so I assure you I do more than my share of work towards securing better gun and carry laws in Texas.

    The shooting today merely serves to reinforce the point we have bade for years. These events occur in gun free zones. Illinois, as you pointed out, is the last Democrat and Brady safe zone states. While Wisconsin does not have CCW, it does allow open carry to a great degree, so Illinois is pretty much it for gun control (DC does not count in my book).

    As for working the find a small loophole, such as the ability to carry an old revolver of questionable reliability, I would opt to work toward reforming the law to allow open carry of any firearm. Personally, I carry everywhere I go. While I would like the privilege of open carry for those really hot Texas days when even a light vest is uncomfortable, I would rather carry under my vest than carry an old revolver openly (personal preference).

    My argument all along has been from a legal standpoint as to the interpretation of the law, rather than the intended meaning of the law and I stated that on many occasions. The U.S. legal system relies on case law and case law does not support your interpretation of this law. That is all I have ever stated.

    So, yes, I would love to have open carry and I have and still do actively push for that very thing. Even if you could secure a ruling in your favor on this issue, how many people would it actually benefit? Whereas, pushing for CCW reform to allow carry anywhere is more likely and would benefit more people. Pushing for open carry by license holders is more beneficial. Lastly, pushing for a actualopen carry law would be better than a favorable ruling in this matter because it would remove the question of legality and prevent one from being arrested on sight and having to have a lawyer to get you off the charge.

    While we all agree that Texas is behind the times and should allow open carry, our only disagreement is concerning the interpretation of a law concerning a potential loophole, which I feel case history has long since closed and you feel remains open. Either way, it will not benefit anyone because you could not (and I dare say, would not) try to utilize because you would spend all your time either in jail or defending your right to do so. In other words, no matter which one of us is correct, it is a meaningless point.

    So, lets just agree to disagree on the fine points of this particular law cand work together to secure something that will actually benefit us all.....Open Carry and CCW anywhere.

    Take care and be safe,

    Doc

  19. #19
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    DocNTexas wrote:
    I totally agree with your motives and, yes, I push for improving our laws at every turn. I correspond, telephone and have even met with out political powers on numerous occasions for that very purpose. Most recently I contacted the AG about increasing the effort to secure reciprocity with several states. I have discussed the issue of campus carry with my representatives and with Governor Perry. I have spoken to Alice Tripp on several occasions about these issues. Believe me, most of these people know me on sight and by name, so I assure you I do more than my share of work towards securing better gun and carry laws in Texas.

    The shooting today merely serves to reinforce the point we have bade for years. These events occur in gun free zones. Illinois, as you pointed out, is the last Democrat and Brady safe zone states. While Wisconsin does not have CCW, it does allow open carry to a great degree, so Illinois is pretty much it for gun control (DC does not count in my book).

    As for working the find a small loophole, such as the ability to carry an old revolver of questionable reliability, I would opt to work toward reforming the law to allow open carry of any firearm. Personally, I carry everywhere I go. While I would like the privilege of open carry for those really hot Texas days when even a light vest is uncomfortable, I would rather carry under my vest than carry an old revolver openly (personal preference).

    My argument all along has been from a legal standpoint as to the interpretation of the law, rather than the intended meaning of the law and I stated that on many occasions. The U.S. legal system relies on case law and case law does not support your interpretation of this law. That is all I have ever stated.

    So, yes, I would love to have open carry and I have and still do actively push for that very thing. Even if you could secure a ruling in your favor on this issue, how many people would it actually benefit? Whereas, pushing for CCW reform to allow carry anywhere is more likely and would benefit more people. Pushing for open carry by license holders is more beneficial. Lastly, pushing for a actualopen carry law would be better than a favorable ruling in this matter because it would remove the question of legality and prevent one from being arrested on sight and having to have a lawyer to get you off the charge.

    While we all agree that Texas is behind the times and should allow open carry, our only disagreement is concerning the interpretation of a law concerning a potential loophole, which I feel case history has long since closed and you feel remains open. Either way, it will not benefit anyone because you could not (and I dare say, would not) try to utilize because you would spend all your time either in jail or defending your right to do so. In other words, no matter which one of us is correct, it is a meaningless point.

    So, lets just agree to disagree on the fine points of this particular law cand work together to secure something that will actually benefit us all.....Open Carry and CCW anywhere.

    Take care and be safe,

    Doc
    Iagree that open carry (whether by permit or general law) would be an improvement and I support it. I do not argue that judges or case law support my position.They should -- who can read the statute and not see it as I do ?! -- but they may not. Nevertheless that doesn't discharge us of our obligations to do the right thing. Here, I think most of us here agree istoo impress upon our lawmakers that the number of areas where we cannot defendourselves is waaaay too high. What if the IL incident happend in TX? Nearly all law-abiding citizens would have been probhibited to carry. This happens way too often (at least 5 times in the last two weeks).

    I had a much larger post that was lost during the process. Given the hour, I think this is sufficient. In short, press your legislators for better than we have today(whatever that exactly is) and make sure they know what you think is a good law for tomorrow.

    Thanks, SA-TX

  20. #20
    Centurion
    Join Date
    Feb 2008
    Location
    Ellis County, Texas, USA
    Posts
    275

    Post imported post

    DocNTexas wrote:
    I totally agree with your motives and, yes, I push for improving our laws at every turn. I correspond, telephone and have even met with out political powers on numerous occasions for that very purpose. Most recently I contacted the AG about increasing the effort to secure reciprocity with several states. I have discussed the issue of campus carry with my representatives and with Governor Perry. I have spoken to Alice Tripp on several occasions about these issues. Believe me, most of these people know me on sight and by name, so I assure you I do more than my share of work towards securing better gun and carry laws in Texas.

    The shooting today merely serves to reinforce the point we have bade for years. These events occur in gun free zones. Illinois, as you pointed out, is the last Democrat and Brady safe zone states. While Wisconsin does not have CCW, it does allow open carry to a great degree, so Illinois is pretty much it for gun control (DC does not count in my book).

    As for working the find a small loophole, such as the ability to carry an old revolver of questionable reliability, I would opt to work toward reforming the law to allow open carry of any firearm. Personally, I carry everywhere I go. While I would like the privilege of open carry for those really hot Texas days when even a light vest is uncomfortable, I would rather carry under my vest than carry an old revolver openly (personal preference).

    My argument all along has been from a legal standpoint as to the interpretation of the law, rather than the intended meaning of the law and I stated that on many occasions. The U.S. legal system relies on case law and case law does not support your interpretation of this law. That is all I have ever stated.

    So, yes, I would love to have open carry and I have and still do actively push for that very thing. Even if you could secure a ruling in your favor on this issue, how many people would it actually benefit? Whereas, pushing for CCW reform to allow carry anywhere is more likely and would benefit more people. Pushing for open carry by license holders is more beneficial. Lastly, pushing for a actualopen carry law would be better than a favorable ruling in this matter because it would remove the question of legality and prevent one from being arrested on sight and having to have a lawyer to get you off the charge.

    While we all agree that Texas is behind the times and should allow open carry, our only disagreement is concerning the interpretation of a law concerning a potential loophole, which I feel case history has long since closed and you feel remains open. Either way, it will not benefit anyone because you could not (and I dare say, would not) try to utilize because you would spend all your time either in jail or defending your right to do so. In other words, no matter which one of us is correct, it is a meaningless point.

    So, lets just agree to disagree on the fine points of this particular law cand work together to secure something that will actually benefit us all.....Open Carry and CCW anywhere.

    Take care and be safe,

    Doc
    Iagree that open carry (whether by permit or general law) would be an improvement and I support it. I do not argue that judges or case law support my position.They should -- who can read the statute and not see it as I do ?! -- but they may not. Nevertheless that doesn't discharge us of our obligations to do the right thing. Here, I think most of us here agree istoo impress upon our lawmakers that the number of areas where we cannot defendourselves is waaaay too high. What if the IL incident happend in TX? Nearly all law-abiding citizens would have been probhibited to carry. This happens way too often (at least 5 times in the last two weeks).

    I had a much larger post that was lost during the process. Given the hour, I think this is sufficient. In short, press your legislators for better than we have today(whatever that exactly is) and make sure they know what you think is a good law for tomorrow.

    Thanks, SA-TX

  21. #21
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    SA-TX wrote:
    Iagree that open carry (whether by permit or general law) would be an improvement and I support it. I do not argue that judges or case law support my position.They should -- who can read the statute and not see it as I do ?! -- but they may not. Nevertheless that doesn't discharge us of our obligations to do the right thing. Here, I think most of us here agree istoo impress upon our lawmakers that the number of areas where we cannot defendourselves is waaaay too high. What if the IL incident happend in TX? Nearly all law-abiding citizens would have been probhibited to carry. This happens way too often (at least 5 times in the last two weeks).

    I had a much larger post that was lost during the process. Given the hour, I think this is sufficient. In short, press your legislators for better than we have today(whatever that exactly is) and make sure they know what you think is a good law for tomorrow.

    Thanks, SA-TX


    I totally agree about the inability of the judges, prosecutors, lawyers and even sometimes the LEO's to read plain English. I think they intentionally write some laws in hard to interpret language in order to allow for variable interpretations. I also think the laws are unfairly applied to the public while letting those charged with enforcing the laws on us go unpunished. A great example is the recent attempt to clarify or define, if you will, the traveling provision, which allows for the unlicensed carry of a handgun in a motor vehicle. After passing a relatively clear law, several DA'spublicly vowed to continue prosecuting people found to be carrying under the law, claiming that it still required one to prove it in court. Their actions were, in my opinion, abuse of power and a violation of the law, perpetrated on the innocent civilian population in order to illegally remove your rights by vowing to use their authority to falsely accuse you and cost you money to prove your innocence. Their idea was that the risk they posed would discourage people from exercising their right to do so. This is coercion through the illegal use of their power. As such, these prosecutors should have been prosecuted themselves for their actions, but were they? NO! Fortunately, the legislators remedied the problem in the next session with the rewrite, however, these same prosecutors are vowing to push for a reversal of this law next session.

    My question is this. Where did these guysget the idea that their job was to write or influence legislation? A DA's job is to enforce the laws as written, no matter if they agree withthem of not. When it comes to changing legislation, they have no more right or authority then you or me and if they don't like a law and want to see it changes, they should use their own time and money to influence the legislators from their district as a citizen, not a DA.Furthermore, if they knowingly file false charges against someone simply because they do not like or agree with a particular law as it is written, they should face the courts just as we would. Unfortunately, this is not the case anduntil we can get it changed, wewill simply have to live it. I already have letters written to the various news agencies in the areas where these DA's reside addressing their misuse of power, use of taxpayer money to promote their own personal views and so forthand plan to send them prior to the start of the next legislative session. Hopefully it will make them think about the damage it could have on them come re-election time.

    As you can tell from my previous post, Iactively support and work toward improvinggun and carrylaws on a regular basis. I am hoping for an all out push for both open carry and removal of restrictions on CCW next session. I have a daughter in college now and one of the greatest threats I see is the use of Muslim students to attack students on our campuses. Where better than to use active students that know the layout, have access to all areas and are known residents on campus. They know where and when to strike and can do it easily. Imagine an organized simultaneous attack on multiple campuses across the nation, how many fatalities could there be? The only protection would be armed students, so I am pushing for campus carry very hard. My daughter has been shooting her entire life and as soon as my daughter turned 21, I had her in a CHL class. She carries religiously and the only time she is without iswhile inclass.

    According to Linda Tripp, the legislative Director for the TSRA, the TSRA president needs to hear this from as many people as possible in order to get it moved to the from of the TSRA's legislative agenda next session, so take the time to call and/or write him and ask that the TSRApush for open carryand removal of restrictions on CCWnext session. Also, if you are not a member of TSRA, please consider joining. Linda does a fantastic job for us here in Texas.

    As pointed out before, while we may not agree on all the fine points, we definitely agree on the major ones, which works for me.

    Take care and be safe,

    Doc



  22. #22
    Regular Member
    Join Date
    Nov 2007
    Location
    New Braunfels, Texas, USA
    Posts
    11

    Post imported post

    well kinda skipping around though this, getting the point of this, and wanting to say my 2c worth, yeah we may get arrested, but what if we just made a date where we all took out or 44 remington new army's strapped them on, and walked out the door, that would get media attention in the very least, and be a huuuuuge fight for a good cause, might wake a few people up.
    Of course if y'all are nervious and stuff about it, so be it, but when i get a all steel 44 mag remington, and get enough other people interested...id do it.
    after all, isnt the best time to think is in a jail cell?
    oh and why fight about cartridge vs cap n ball? remington new army and several cylinders, easy to reload it then, sides cap and ball revolvers would kill someone almost just as easily.

    Take it easy

    P.S y'all ever notice that absolutely NO crimes have (since id say at least 1930) have been commited with a black powder gun? if anyone has statistics on any of that let me know but, from what i understand no one uses cap n ball anymore, course criminals arent that smart.

  23. #23
    Regular Member
    Join Date
    Aug 2007
    Location
    Granite State of Mind
    Posts
    4,509

    Post imported post

    MarkNH wrote:
    pre-1899 FAQ: http://www.empirearms.com/pre-1899.htm

    If you still disagree you are welcome to call BATFE directly and ask them.
    Dennis Kroh (of Empire Arms) is not just a dealer, he's also an importer. His experience is vast and his knowledge is beyond question. He has a close working relationship with ATF, and does not take chances!

    Doc, I consider you to be one of the best authorities on Texas law, but you're incorrect on the federal law defining antiques. The pre-1899 definition is well established, and accepted by ATF. Mark has described it correctly as ATF enforces it.

    As for your experience with pre-1899 Mausers, that's one of those ATF quirks. ATF insists that the receiver is the gun, forever, when it comes to Class III, handguns v. long guns, etc., but if a pre-1899 receiver (which is not a firearm per ATF) is either newly assembled or rebarrelled into any but its original configuration, that conversion date becomes the date it was "manufactured". It loses its antique status at that point.

    Yes, it's inconsistent with the law as written, but that's the ATF ruling. Fortunately, they have consistently ruled that all pre-1899 things-that-work-like-firearms are not "firearms" under federal law. Black powder, smokeless, muzzle loading, paper cartridge, centerfire, rimfire... ammo type and ignition source only apply to replicas.

    There are numerous modern centerfire cartridges that originated before 1899. Some started as black powder, others as cordite, and some as smokeless. As mentioned, 7.62x54R, .303 British, most of the Mauser family, and (speaking of handguns), .30 Mauser.

    So go ahead, strap on that C96 Mauser pistol, and carry away.


  24. #24
    Regular Member
    Join Date
    Nov 2007
    Location
    , Texas, USA
    Posts
    300

    Post imported post

    KBCraig wrote:
    MarkNH wrote:
    pre-1899 FAQ: http://www.empirearms.com/pre-1899.htm

    If you still disagree you are welcome to call BATFE directly and ask them.
    Dennis Kroh (of Empire Arms) is not just a dealer, he's also an importer. His experience is vast and his knowledge is beyond question. He has a close working relationship with ATF, and does not take chances!

    Doc, I consider you to be one of the best authorities on Texas law, but you're incorrect on the federal law defining antiques. The pre-1899 definition is well established, and accepted by ATF. Mark has described it correctly as ATF enforces it.

    As for your experience with pre-1899 Mausers, that's one of those ATF quirks. ATF insists that the receiver is the gun, forever, when it comes to Class III, handguns v. long guns, etc., but if a pre-1899 receiver (which is not a firearm per ATF) is either newly assembled or rebarrelled into any but its original configuration, that conversion date becomes the date it was "manufactured". It loses its antique status at that point.

    Yes, it's inconsistent with the law as written, but that's the ATF ruling. Fortunately, they have consistently ruled that all pre-1899 things-that-work-like-firearms are not "firearms" under federal law. Black powder, smokeless, muzzle loading, paper cartridge, centerfire, rimfire... ammo type and ignition source only apply to replicas.

    There are numerous modern centerfire cartridges that originated before 1899. Some started as black powder, others as cordite, and some as smokeless. As mentioned, 7.62x54R, .303 British, most of the Mauser family, and (speaking of handguns), .30 Mauser.

    So go ahead, strap on that C96 Mauser pistol, and carry away.
    KBCraig,

    Sorry it took so long to reply, but I have been predisposed with other matters lately.

    Since the start of this discussion I have put a considerable amount of research into the matter, as well as, having others, in a better position than me, research the matter.I also discussed the matter with a couple of collectors I know and an importer I met at a recent gun show and based on this information, I am inclined to agree with you and the others as to the position of the BATF on the subject.

    My friend, the district judge, finallygot back to me with his research results and opinion and he too agrees that this is the position of the BATF and that it should be the position of the state, however, he feels that Texas courts would likely not hold that position as a rule. Furthermore, he feels that if the matter were to go before the Texas Supreme Court, they would likely rule against this as well, likely ruling on "intent" of the law, not actual wording. While he says he would rule for it in his court, he would expect it to be overturned by higher courts.

    As an experiment, I called the BATF again and posed the exact same scenario as before and was initially told the same thing as before, but when I questioned their answer, I was put on hold and upon his return, I was told just the opposite. So, it would appear that the people answering the phones and questions at the BATF are not up to speed on the facts either. The final answer this days was that no FFL was needed to transfer the old Mausers I purchased. Go figure.

    So, based on thelatest information I have been able to dig up, I must agree with your position. As for openly carrying one inTexas, well, I am not sure I want to be the test case there. I agree that it SHOULD be legal, however, I also agree with the judge, inthat, it is not that cut and dry under our legal system and I feel it is doubtful that one would prevail in the end. At the very least, it would certainly cost you dearly to win it. Gotta love our courts.

    Doc

    P.S. Inreviewing some of the previous posts I noted that I referred to the TSRA Legislative Director as "Linda Tripp", when in fact her name is "Alice Tripp" (Linda is a local acquaintance of mine). So, if you send her a letter, don't call her Linda. LOL (I gotta stop working such long hours.)

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •