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Thread: When was OC "outlawed" in Texas?

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    Curious when Texas lost open carry...

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    Section 46.02 of the Texas Penal Code (Unlawful Carry of a Weapon) is the law that prohibits open display of a weapon. The oldest reference of this law as it currently exists comes from the codification ofthe Texas Penal Codein 1973 by the 63rd Legislature. Before this time, the laws were organized differently and were notstored electronically, so there is no revision history readily available before this time.

    I can tell you that the prohibition of open carry dates back to Reconstruction; laws forbidding weapons carry were passed and then selectively enforced by the "good ol' boy" lawmenagainst free blacks and carpetbaggers. This behavior continued through much of the early 20th century; I would guess as recently as the Civil Rights Act of 1964, officers were stillenforcing this and other laws only as they saw fit. After the CRA passed, the law had to be applied evenly, and as President Kennedy had just been assassinated 6 months previously,followed very soon thereafterby Jack Ruby walking up andplugging Oswald, it would not have been very good PR for Texas to repeal their carry prohibition. So, the majority of the chapter, including handgun law, was left largely unchanged until a major overhaul of the Penal, Government and Beverage Codesbetween 1995-1997 to institute concealed carry licensing. Since that time we've been chipping away at 46.02 and similar provisions; the next major step was in 2007 with the strong Castle Doctrine law and specific exception to 46.02 in the case of a weapon kept concealed in a car.

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    Myunderstanding is that 1973 was a bench mark year when the practice of possessing a loaded handgun "on or about one's person" in a motor vehicle became the primary prosecution for a criminal offense. This statute was designed to protect LEO's on traffic stops.Enforcement of this "prohibited carry" was pretty selective. Small rural areas of the State -especially West Texas -it wasn't an issue unless you were a "criminal". Other Texas members have a better knowledge of earlier history - public OC walking down the sidewalk. It has been stated that it is primarily a municipality issue - that repeal is needed of the statute that defines possession of a handgun except under specified circumstances a criminal offense. I understand the State "pre-emption" needs strengthening in this area also.Again - the Texas Constitution empowers the Legislature to "regulate the wearing of firearms with a view to preventing crime." The present law constitutes a de facto prohibition (not "regulation") -with specified exceptions. Some say a loaded handgun has never been techniquely considered a "prohibited weapon", however one might interpret the prosecution for possession/carrying to constitute a "prohibition" for all practical purposes outside of licensed CC. In my opinion "regulate the wearing" is a directive to the legislature to establsih guidelines to "allow for" the wearing OC as well as CC.I'm a Colorado resident now and I'm amazed at the existence of so much anti-gun hysteria in Texas.

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    In my youth 25 years ago, it was rare but not unheard of to see people walking around OCing a handgun in town. Some had the look of cops, but others were kindly looking old folks who had clearly been doing it their whole lives without a problem. This, of course, wasn't in a city, but in rural areas where people came in to grab a Sunday lunch or pick up some supplies to take back to their farms. It seems that it was illegal to do it, based on the law going back at least until 1973, but it was a non-issue in my neck of the woods. I have no idea how many little old ladies might've been CCing in their purse, since concealed is concealed, but I'm willing to bet 10 times the number of OCers were concealing back then, and likewise would not have gotten any guff about it unless they were otherwise criminals. Selective enforcement is pretty much the norm for most small Texan towns in most areas of the law, with local cops looking out for locals and not cutting out-of-towners the slightest bit of slack.

    Of course, all these people were white. It's sad to say, but if they were black, they would've been eating concrete. I'd be willing to bet that blacks in that part of rural Texas would still be eating concrete today if they were legally carrying concealed with a CHP... the racist origins and purposes of the law shone through, much like elsewhere in the South.

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    This would be good to figure out - I bet you that until late in the 20th century, OC was only prohibited in cities or incorporated towns - just a hunch.

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    I talked to my dad, who is a retired CA/DA/State District Judge in rural South Texas. He said he always prosecuted the open carry violations that were brought to him in the late 50's and 60's. I guess he didn't deal with it much once he became a Judge.

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    Well, like I said, I think it was mainly the officer who decided whether to arrest that constituted most of the civil rights violations. You might ask, without trying to offend him or anyone else, what the percentage of white vs black offenders was, and how many white vs black offenders he was able to get a guilty verdict for.

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    Actually, the right was lost much earlier than the enactment of the current law. In fact, it was lost in 1871 with the passage of a law entitled "An Act to Regulate the Keeping and Bearing of Deadly Weapons Law of April 12, 1871, Ch. 34, Sec. 1, 1871 Texas General Laws 25", a product of theTexas Reconstruction Act of 1871. This law prohibited the carry of a firearm except in the case of personal protection from an immediate and imminent threat and any claim of such a threat had to be shown and proven as a valid claim. Violation of the law was punishable by a fine of $25 - $100 and forfeiture of the firearm. In addition, the law contained a mandatory arrest clause, meaning an officer was to arrest on sight without a warrant. (Incidentally, the law required that a person carrying a firearm under the exemptionclausehad tocarry the firearm openly.)

    This law remained in effect following the adoption of the current Texas Constitution in 1876 and was thecharge Dallas police used against Franklin P. Miller in the landmark capitol murder case of 1894 that ultimately led to the Miller v Texas U.S. Supreme Court casewhich, among other things, challenged the laws constitutionality under the second amendment. In this case, SCOTUS upheld the Texas law banning the carry of weapons as well as the other provisions of the Texas Reconstruction Act.

    Since the enactment of this law in 1871, Texas has maintained a law against the carry of handguns in one manner or another until the passage of concealed carryby th1995 legislature.

    Doc

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    DocNTexas wrote:
    Actually, the right was lost much earlier than the enactment of the current law. In fact, it was lost in 1871 with the passage of a law entitled "An Act to Regulate the Keeping and Bearing of Deadly Weapons Law of April 12, 1871, Ch. 34, Sec. 1, 1871 Texas General Laws 25", a product of theTexas Reconstruction Act of 1871. This law prohibited the carry of a firearm except in the case of personal protection from an immediate and imminent threat and any claim of such a threat had to be shown and proven as a valid claim. Violation of the law was punishable by a fine of $25 - $100 and forfeiture of the firearm. In addition, the law contained a mandatory arrest clause, meaning an officer was to arrest on sight without a warrant. (Incidentally, the law required that a person carrying a firearm under the exemptionclausehad tocarry the firearm openly.)

    This law remained in effect following the adoption of the current Texas Constitution in 1876 and was thecharge Dallas police used against Franklin P. Miller in the landmark capitol murder case of 1894 that ultimately led to the Miller v Texas U.S. Supreme Court casewhich, among other things, challenged the laws constitutionality under the second amendment. In this case, SCOTUS upheld the Texas law banning the carry of weapons as well as the other provisions of the Texas Reconstruction Act.

    Since the enactment of this law in 1871, Texas has maintained a law against the carry of handguns in one manner or another until the passage of concealed carryby th1995 legislature.

    Doc
    What a great history lesson. Thanks, Doc!
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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