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Thread: What Does the Texas Constitution "but" Clause Mean wrt RKBA

  1. #1
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    The Texas Constitution reads:

    Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
    There are two parts in the "but" clause that stand out to me: "regulate" and "with a view to prevent crime".

    IANAL so I don't know how the courts see it but I wonder how "regulate" can be construed to allow the outright banning of possessing or even wearing arms everywhere but your own property. 46.02 of the penal code completely abrogates the guarantee of a citizen's right to keep and bear arms.[1]

    Add "with a view to prevent crime" to "regulate" and you get a really interesting, and restricted "power" granted to the legislature. It's not a blanket authority to regulate the wearing of arms. The power must be exercised with a "view," or intent, of preventing crime.

    Does "preventing crime" mean "crime" in the general sense? Or specific crime? If "crime" is nebulous, meaning any unspecified crime then it in effect grants the Legislature the power to to do what they have done which is ban the wearing of handguns everywhere, justified by the claim that the "view" (intent) is to prevent gun crime. But then again such a ban eliminates our (Texas) Constitutional RKBA.

    It seems only logical, then, that "regulating the wearing of arms, with a view to prevent crime" would mean citizens must be allowed to wear firearms but that to prevent specific crimes, the legislature may regulate the when and where that arms are worn.[2]

    With this in mind, 46.02 should be ruled unconstitutional because it effectively eliminates our RKBA.[3] 46.03, however, might stand pretty much unchanged because it regulates certain locations while leaving the vast majority of locations citizens frequent untouched.

    Under this reading CHL regulations with a "shall issue" requirement might pass muster, as long as OC isn't also restricted. Our current situation with CHL as the only way to legally wear a handgun away from home is unreasonable.

    In fact, OC and CC everywhere of any arm with limited restrictions over times or locations would be the correct way for the Legislature to exercise their Constitutional "power" to "regulate the wearing of arms, with a view to prevent crime."

    --Aaron

    [1] Some might argue that since long guns are still allowed then 46.02 passes muster, but not if you consider that we're guaranteed the RKBA for defense of self and the State. Between Federal firearm laws restricting barrel lengths and the practicality of getting any long-gun into action in close quarters, this is pretty much a specious argument. The US Supreme court recognized an additional and very interesting reason to protect handgun ownership as part of our individual right: "Americans overwhelmingly choose [handguns] for the lawful purpose of self-defense".

    [2] One might argue that the legislation itself must be temporary, lasting long enough for the crime threat to subside. One might also argue that our current laws that prohibit "possession of arms violates the Constitution because the power is strictly limited to regulating "wearing".

    [3] Again it would be specious to claim that because citizens can exercise the right of armed self-defense at home and in their car their RKBA aren't being eliminated. We spend disproportionately more time not at home or in the car to that time that we do spend there. A trivial right is no right at all.

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    Sounds about right to me. Good write up. I'd like to see what DocNTexas has to say about it tho. He seems fairly "up" on all the laws.

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    It means the legislature was supposed to require every capable person to be armed as a deterrent to violent crime, but thelegislature dropped the ball and never wrote that law.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Citizen wrote:
    It means the legislature was supposed to require every capable person to be armed as a deterrent to violent crime, but thelegislature dropped the ball and never wrote that law.

    Nice interpretation! Wish I had thought along those lines. Maybe we can impeach the lot of them for failure to uphold and perform their constitutional duty.


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    I always like this quote from the Virginia Citizens Defense League (VA-CDL) website: “Virginia does NOT have a law authorizing "open carry" anymore than it has a law authorizing you to wear a red shirt or green pants....In Virginia, open carry is legal in most places with or without a Concealed Handgun Permit."

    I recently moved back home to Texas from northern Virginia and was a supporter of the VA-CDL. In Virginia as far as OC, no license is required for a constitutionally protected right. As understood by me the original intent of the Bill of Rights was to affirm rights granted by God and “shall not be infringed” by government… free speech, the right to assemble, redress of grievances, freedom of religion, and self-defense among the 1st and 2nd.We Texans have all been lead to believe that Open Carry being illegal is "normal". It is NOT! It is an aberration in the USA and a violation of the U.S. Constitution... it is a simple as that.

    The Texas Constitutionand/or the way it is being interpreted is UNCONSTITUTIONAL! Because the Texas legislature has given itself rights that it does not have under the U.S. Constitution... and that is the ability to regulate the 2nd amendment right out of Texas.

    I know it is a bit confusing for some Texans, they somehow think that this is backwards wanting OC when we have CC. However many in VA wanted the CCL passed because in winter in northern VA (it snows there) it is impossible to OC in a heavy coat. With a CCL put on a coat your legal… take it off, your still legal.

    We need our constitutional rights restored here in Texas and it is a long time coming.



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    ELK-Tex wrote:

    I always like this quote from the Virginia Citizens Defense League (VA-CDL) website: “Virginia does NOT have a law authorizing "open carry" anymore than it has a law authorizing you to wear a red shirt or green pants....In Virginia, open carry is legal in most places with or without a Concealed Handgun Permit."
    That's why I'm a big supporter of having an open carry amendment to the Texas constitution. Virginia has no law that recognizes a persons right to openly carry. That could change tomorrow for the worse. If it is in the constitution it makes it harder for the government to abolish it, especially when the electorate has to vote on it to either adopt it, abolish it or revise it.

    I think our goal of having a statutory law passed recognizing our right to open carry is important but our ultimate goal should be to get it on the ballot as a constitutional amendment.

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    kingmonkey wrote:
    ELK-Tex wrote:

    I always like this quote from the Virginia Citizens Defense League (VA-CDL) website: “Virginia does NOT have a law authorizing "open carry" anymore than it has a law authorizing you to wear a red shirt or green pants....In Virginia, open carry is legal in most places with or without a Concealed Handgun Permit."
    That's why I'm a big supporter of having an open carry amendment to the Texas constitution. Virginia has no law that recognizes a persons right to openly carry. That could change tomorrow for the worse. If it is in the constitution it makes it harder for the government to abolish it, especially when the electorate has to vote on it to either adopt it, abolish it or revise it.

    I think our goal of having a statutory law passed recognizing our right to open carry is important but our ultimate goal should be to get it on the ballot as a constitutional amendment.
    We almost have it. The TX Constitution guarantees us RKBA for defense of self and the state. It's that clause immediately after granting the Legislature the "power" to regulate the wearing of arms "with a view to prevent crime" that's a problem. Remove that clause and we're done. OC, CC everything we want is allowed.

    Sadly, if you look at versions of the TX Constitution prior to the modifications made during reconstruction, that clause didn't exist. Any takers on the question "Why was the 'power to regulate' clause added?" Answer to follow.

    Edit: Fixed grammar error.


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    I read in another location... that the laws against OC were passed to keep carpetbaggers and newly freed slaves from bearing arms and actually had nothing to do with crime.
    I forgot to mention something that has been bothering me after I read it somewhere on this forum... "Why do we need OC when it’s tactical to CC?"This situationhas NOTHING to do with tactics or getting the drop on the bad guy. That is NOT the issue... the issue is the restoration of our constitutionally protected right to bear arms openly. The "normal" way to "bear arms" is to sling your rifle over your shoulder and stick you pistol in your belt or in a holster at your side and head out on your way. Incidentally the 46 states that have OC and CC, most often the CC laws were hard to pass... why? Historically criminals conceal their guns. In VA the resistance was centered on criminals lawfully carrying guns or criminal activity arising from CC. It was moot as it was everywhere those arguments were tried. To my surprise some in favor of CC on this forum are against OC! They are citing the same anti-gun rights arguments used by those against CC! The idea of OC being a bad idea in VA never really came up.I was there during the debate and remember it well. Here's why it never came up... from the VA state constitution:

    Sec. 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
    Sound a little familiar? Pretty much the same fellows wrote the U.S. one too. One of the original drafts of the U.S. 2nd amendment was almost verbatim. In an attempt to be terse, most of the wording was dropped and the misunderstandings began however, most by design rather than actual. See arguments for and against Heller case. Liberals had to ignore a lot of written history to come to their conclusions about the 2nd amendment. Texas either must be challenged in court or the legislature just has to fix it one way or another. The laws on the books are unconstitutional. The members of the Texas legislature must be lead to understand they do not have the power they have given themselves to take away our U.S. Constitutional rights.


    ELK

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    ELK-Tex wrote:
    I read in another location... that the laws against OC were passed to keep carpetbaggers and newly freed slaves from bearing arms and actually had nothing to do with crime.
    Correct. Like all other Jim-Crowe laws most (perhaps all) the early weapons-control laws were passed to subordinate and disenfranchise blacks of their rights.[1] It's hard to attack someone if they might shoot you, so disarm them. It's hard to change the laws if you can't vote so implement poll taxes, reading tests and other ways to keep them from voting. Very insidious.

    To keep from running afoul of the 14th Amendment protections the laws were always written such that they applied to everyone, but in practice the local peace officers turned a blind eye towards whites who violated the weapons-control laws. What those same whites didn't expect was that as new generations came along and outright racism began to pass (or go undercover), law enforcement would use those same universal bans to prevent whites from also carrying. The hens came home to roost, as it were.

    Here's a pretty good article on the topic: The Racist Roots of Gun Control

    What's really sad is that leaders in the civil rights movement have worked so hard to repeal all the other Jim-Crowe laws but support a ban on what is arguably the most important right a free citizenry has: the right to self defense.

    [1] Notice how almost all the laws from reconstruction not only ban handguns but also knives and clubs?

    Edit: Grammar correction.


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    ELK-Tex wrote:
    Texas either must be challenged in court or the legislature just has to fix it one way or another. The laws on the books are unconstitutional. The members of the Texas legislature must be lead to understand they do not have the power they have given themselves to take away our U.S. Constitutional rights.


    ELK
    Sadly the Texas Supreme Court has adopted the same rules for standing as the US Supreme Court. Despite the fact that Texas Penal Code 46.02 is a flagrant violation of the Texas Bill of Rights protection of RKBA, you can't challenge the law unless you've been charge and convicted for it. IOW, there is no challenging a law in the courts just because it's unconstitutional.

    Of course it's a throw of the dice. Despite the fact that 46.02 violates TX RKBA, it's not a given the appellant would win. Because the Constitution grants the "power to regulate the wearing of arms" it's going to take a good argument and a group of justices who aren't trying to legislate from the bench. If our victim loses his Class-A-Misdemeanor conviction stands which means no CHL for 5 years.

    Personally I'm not ready to throw those dice when legislative action is still a possibility. It's precisely this reason (petition for redress of grievances) that the Supreme Court doesn't allow "straw man" challenges. They don't want every Tom, Dick and Harry with an axe to grind clogging up the courts with challenges to laws.

    It's a real shame that Texas doesn't have Initiative.[1] If so, we could circulate a petition and let the people vote to change the law and/or the TX Constitution and fix the problem without any of our gutless elected representatives having to worry about losing their jobs.

    --Aaron

    [1] See Wikipedia and the Initiative for Texas project for more info.

    Edit: Wording correction.


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    Heller sued DC on the constitutionality of their gun ban... he was never arrested for anything. If I had the money I would sue the state of Texas in federal court on the constitutionality of the second part of the Article 1, section 23, the Texas legislature has given itself ability it does not posses as with the Heller case. You cannot legislate the 2nd out of existence. DC outlawed handguns, and their other restrictions on guns negated a citizen’s right to bear arms. Texas has done exactly the same thing… the Texas constitution in light of Heller is in violation of the 2nd.

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    ELK-Tex wrote:
    Heller sued DC on the constitutionality of their gun ban... he was never arrested for anything. If I had the money I would sue the state of Texas in federal court on the constitutionality of the second part of the Article 1, section 23, the Texas legislature has given itself ability it does not posses as with the Heller case. You cannot legislate the 2nd out of existence. DC outlawed handguns, and their other restrictions on guns negated a citizen’s right to bear arms. Texas has done exactly the same thing… the Texas constitution in light of Heller is in violation of the 2nd.
    That's not entirely true. Heller had standing...he had tried to register a handgun and was turned down. His wasn't an abstract challenge. The statue in DC allowed for some handgun registration. Heller is a security guard who is registered and allowed to have and carry a handgun at work. He wanted to register a handgun for use at home. DC turned him down and he challenged their refusal to register his handgun based on the fact that it violated his 2a rights. I think that as long as the law had never affected him personally he couldn't sue.

    I suppose the question then is whether we could create standing by petitioning the state to wear a handgun openly and after we're turned down then sue.

    Disclaimer: IANAL and my original assertion that we can't sue due to standing was what my lawyer told me when I asked him whether and how I could sue the state for violating the TX BoR. I may well have asked the question poorly or misunderstood the answer.


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    ELK-Tex wrote:
    SNIP The members of the Texas legislature must be lead to understand they do not have the power they have given themselves to take away our U.S. Constitutional rights.
    Ahhhhhhhhhhh!!!!

    Federalism violation! Federalism violation!



    Suggested re-write:

    The Texas legislature must be lead to understand they do not have the power the have given themselves to take away our unalienable rights.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    The problem with that is that the Legislature didn't do it, we did. In order for any changes to be made to the Texas constitution the voters have to approve it. We have essentially given them the right to determine how weapons can be carried. I wouldn't blame them. I blame us for not reading the fine print.

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    Citizen wrote:
    ELK-Tex wrote:
    SNIP The members of the Texas legislature must be lead to understand they do not have the power they have given themselves to take away our U.S. Constitutional rights.
    Ahhhhhhhhhhh!!!!

    Federalism violation! Federalism violation!



    Suggested re-write:

    The Texas legislature must be lead to understand they do not have the power the have given themselves to take away our unalienable rights.

    I stand corrected and amen to that. ELK

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    Some of this info may be redundant, so bear with me.

    The "regulate the wearing of arms" clause was, at the time, a transliteration of a common caveat in State Constitutions that basically said "no concealed weapons". Our neighboring states have either our clause or a more specific restriction on concealed weapons, and mots states in the Union use the latter.

    The idea was that, yes, you have the right to keep and bear arms under the Constitution, but the State has the power to say HOW you can do so. Concealed carry used to be a mark of sinister intentions; if you didn't want anyone to know you were armed it was assumed you were up to no good. I mean, look at criminals today. The major argument for OC is that no criminal would carry openly unless they were damn sure they were the king of the hill.

    This logic has been slowly perverted over 200 years, first by saying the BoR only applies to the States (forcing explicit incorporation, which has not yet happened to the 2A), then by saying that the RKBA's purpose it to protect common civilianweapons (creating the circular butsomehow valid argument that uncommon weapons like automaticsshould be banned because they're uncommon because they're banned because...), and then by saying that concealed carry is better than open carry BECAUSE it's secret; you can take a potential assailant by surprise, and you eliminate the awkwardness of being around people who may be frightened of guns.

    So now, our more ambiguous wordingis totally turned on its head. The interpretation of the Legislature's power has gone from banning evil concealed carry to requiring concealment, and perhaps the most costly and time-consuming shall-issue application processes in the country, if one wishes to carry at all. As an aside, ambiguous wording has long been the bane of Texas law; does anyone really know what the legal definition of "control" as it applies to property really means? Course not; there isn't one. Neither are there any statute guidelines for "posted prominently". Apparently Texas likes its lawyers and wants to keep em in business.

    However, I do not think that the problem is necessarily the wording of the right. Think about what that clause does; it gives the Texas Legislature, and it alone, power to tell us how we can and cannot carry weapons, and it does NOT grant the power to regulate what can be possessed as is the situation for residents of less fortunate states. That's your pre-emption statute right there. Strike the clause completely and you lose pre-emption, without any guarantee that equivalentwording will be codified in Texas weapons law.

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    OK I was with you until the last paragraph and you lost me...
    However, I do not think that the problem is necessarily the wording of the right. Think about what that clause does; it gives the Texas Legislature, and it alone, power to tell us how we can and cannot carry weapons, and it does NOT grant the power to regulate what can be possessed as is the situation for residents of less fortunate states. That's your pre-emption statute right there. Strike the clause completely and you lose pre-emption, without any guarantee that equivalent wording will be codified in Texas weapons law.
    Er... maybe the last sentence... please explain further your comment...
    "...without any guarantee that equivalent wording will be codified in Texas weapons law. "
    I do agree that the wording gives theTexas Legislature the "power" to regulate the wearing of firearms... and you are right, it can or could be applied to ANY firearm. Scary.
    "Think about what that clause does; it gives the Texas Legislature, and it alone, power to tell us how we can and cannot carry weapons, and it does NOT grant the power to regulate what can be possessed..."
    That is why I have and will continue to say that Texas law is in light of Heller... unconstitutional. The Heller decision basically saysany government under the US constitution cannot regulate the 2nd out of existance, anymore than it can regulate a free press or the practice of religion. As far as I'm conserned the legislature has to rewrite a lot of law or drop it altogether. Of course my advice is don't hold your breathe till it happens. This may take awhile.

    For me thisOC discussion is not and has never been one of tactics... it is constitutional rights and how Texas needs to realign itself under the fact of Heller vs. D.C. And as Kingmonkey pointed out...
    The problem with that is that the Legislature didn't do it, we did. In order for any changes to be made to the Texas constitution the voters have to approve it. We have essentially given them the right to determine how weapons can be carried. I wouldn't blame them. I blame us for not reading the fine print.

    Given.... Now we need to fix it.

    ELK

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    ELK-Tex wrote:
    That is why I have and will continue to say that Texas law is in light of Heller... unconstitutional. The Heller decision basically saysany government under the US constitution cannot regulate the 2nd out of existance, anymore than it can regulate a free press or the practice of religion. As far as I'm conserned the legislature has to rewrite a lot of law or drop it altogether. Of course my advice is don't hold your breathe till it happens. This may take awhile.
    I disagree. I don't think the Texas constitution can be used to regular firearms out of existence. It could mean that one day we might lose our right to carry, openly or concealed, but I don't think it can be used to get rid of them altogether. That being said, a constitution to a politician is like a road block to a criminal on the run. If they work hard enough they can get around it and they most certainly will.

    My problem has always been that concealed carry was introduced through statutory law instead of constitutional law. Our goal, then, should be to have both concealed carry and open carried explicitly detailed in our state constitution. While it is just another statute on the books it can be modified or suspended at any time. If it were a constitutional amendment then it would be nearly permanent and difficult to get around. The language must be clear and it must be exact, to the point so that no confusion can arise from it. That is a difficult task but it is something we must strive for.

    kingmonkey.

    www.TexansForOpenCarry.com

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    I'm not in Texas, so I don't "have a dog in the hunt" as it were....but, may I suggest that you guys have a look at the Alabama SUPCO case "The State v. Reid " http://www.cs.cmu.edu/afs/cs/usr/wba...ate_v_reid.txt ?
    It could give y'all a few "talking points"...hope it helps.

    Below are the areas that I thought might help....

    Code:
         "We may possibly be told, that though a law of either
    description may be enacted consistently with the constitution, it
    would be incompatible with that instrument, to enact laws of both
    descriptions.  But if either, when alone, be consistent with the
    constitution, which it may be asked, would be incompatible with
    that instrument, if both were enacted.
    
    "The law first enacted would not be; for as the argument
    supposes, either may be enacted consistent with the constitution,
    that which is first enacted must, at the time of enactment, be
    consistent with the constitution; and if then consistent, it cannot
    become otherwise by any subsequent act of the Legislature.  It
    must, therefore, be the latter act, which the argument infers would
    be incompatible with the constitution.
    
    "But suppose the order of enactment was reversed, and instead
    of being the first, that which was first, had been the last; the
    argument to be consistent should nevertheless, insist on the last
    enactment being in conflict with the constitution.  So that the
    absurd consequence would thence follow, of making the same act of
    the Legislature, either consistent with the constitution, or not
    so, according as it may precede or follow some other enactment of
    a different import.  Besides, by insisting on the previous act
    producing any effect on the latter, the argument implies, that the
    previous one operates as a partial restraint on the right of the
    citizens to hear arms, and proceeds on the notion, that by 
    prohibiting the exercise of the residue of right not affected by
    the first act, the latter act comes in collision with the
    constitution.  But it should not be forgotten, that it is not only
    part of the right that is secured by the constitution; it is the
    right entire and complete, as it existed at the adoption of the
    constitution; and if any portion of that right be impaired,
    immaterial how small the part may be, and immaterial the order of
    time at which it may be done, it is equally forbidden by the
    constitution."
    
    But the court say that it is a matter which will not admit of
    legislative regulation, and in order to test the correctness of its
    opinion, supposes one Legislature to prohibit the bearing secretly,
    and a subsequent Legislature to enact a law against bearing them
    openly; and then asks the question, whether the first or last
    enactment would be unconstitutional.  Under the provision of our
    constitution, we incline to the opinion that the Legislature cannot
    inhibit the citizen from bearing arms openly, because it authorizes
    him to bear them for the purposes of defending himself and the
    State, and it is only when carried openly, that they can be
    efficiently used for defence.
    

  20. #20
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    Kingmonkey wrote:
    I don't think the Texas constitution can be used to regulate firearms out of existence. It could mean that one day we might lose our right to carry, openly or concealed, but I don't think it can be used to get rid of them altogether.
    My apologies that I was unclear... what I meant was that the right to carry any gun would be outlawed or regulated not firearms. I would point out that is our current predicament. The unalienable right to "bear arms" is being infringed as we do not have the right to open carry. And the point made by our neighbor in Alabama is well taken... and makes my point that the Texas legislature cannot regulate open carry.
    From: Comp-tech
    State Researcher
    ...the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
    So to answer the original post question... that "but" in the Texas constitution and everything after it is unconstitutional. There is not alegal law that the state of Texas can write that makes open carry illegal... try and write a law to control pornography in print in Texas and see how fast it will be shot down. Actually no one would even try. Now tell me the difference in the 1st amendment and the 2nd? How can the constitutional right enumerated in the 2nd be infringed but the 1st is sacrosanct? Especially since it says "the right of the people to keep and bear arms shall not be infringed"???

    Really I'm ok... I finally stopped to breath.I am under no allusions that this will be fixed easily. There are plenty of folks out there who want to keep it as is and end CC. However, my point is to get my friends to understand that this has nothing to do with tactics or other fringe stuff... just the basic right that has been taken away.

    ELK

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    ELK-Tex wrote:
    Kingmonkey wrote:
    I don't think the Texas constitution can be used to regulate firearms out of existence. It could mean that one day we might lose our right to carry, openly or concealed, but I don't think it can be used to get rid of them altogether.
    My apologies that I was unclear... what I meant was that the right to carry any gun would be outlawed or regulated not firearms. I would point out that is our current predicament. The unalienable right to "bear arms" is being infringed as we do not have the right to open carry. And the point made by our neighbor in Alabama is well taken... and makes my point that the Texas legislature cannot regulate open carry.
    From: Comp-tech
    State Researcher
    ...the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.
    So to answer the original post question... that "but" in the Texas constitution and everything after it is unconstitutional. There is not alegal law that the state of Texas can write that makes open carry illegal... try and write a law to control pornography in print in Texas and see how fast it will be shot down. Actually no one would even try. Now tell me the difference in the 1st amendment and the 2nd? How can the constitutional right enumerated in the 2nd be infringed but the 1st is sacrosanct? Especially since it says "the right of the people to keep and bear arms shall not be infringed"???

    Really I'm ok... I finally stopped to breath.I am under no allusions that this will be fixed easily. There are plenty of folks out there who want to keep it as is and end CC. However, my point is to get my friends to understand that this has nothing to do with tactics or other fringe stuff... just the basic right that has been taken away.

    ELK
    One of the problems, as I understand it, is the 2nd Amendment has never "officially" been incorporated under the 14th amendment "privileges and immunities" clause. Just 5 brief years after passage of the 14th the Supreme Court practically eviscerated it in terms of applicability of the Bill of Rights to citizens against the states themselves (Slaughterhouse cases).

    The debate over whether the Fourteenth Amendment makes applicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution. The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause. Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time. The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.[1]
    While the courts have been eager to extend rights that affect "the American scheme of justice," as noted above, other rights either haven't been reviewed or have been rejected. So yeah, it's going to be late or never that the Supreme Court or the states start respecting our 2a rights.

    --Aaron

    [1] http://www.law.umkc.edu/faculty/proj...law/incorp.htm

  22. #22
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    akpoff wrote:
    The Texas Constitution reads:

    Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
    There are two parts in the "but" clause that stand out to me: "regulate" and "with a view to prevent crime".

    IANAL so I don't know how the courts see it but I wonder how "regulate" can be construed to allow the outright banning of possessing or even wearing arms everywhere but your own property. 46.02 of the penal code completely abrogates the guarantee of a citizen's right to keep and bear arms.[1]

    Add "with a view to prevent crime" to "regulate" and you get a really interesting, and restricted "power" granted to the legislature. It's not a blanket authority to regulate the wearing of arms. The power must be exercised with a "view," or intent, of preventing crime.

    Does "preventing crime" mean "crime" in the general sense? Or specific crime? If "crime" is nebulous, meaning any unspecified crime then it in effect grants the Legislature the power to to do what they have done which is ban the wearing of handguns everywhere, justified by the claim that the "view" (intent) is to prevent gun crime. But then again such a ban eliminates our (Texas) Constitutional RKBA.

    It seems only logical, then, that "regulating the wearing of arms, with a view to prevent crime" would mean citizens must be allowed to wear firearms but that to prevent specific crimes, the legislature may regulate the when and where that arms are worn.[2]

    With this in mind, 46.02 should be ruled unconstitutional because it effectively eliminates our RKBA.[3] 46.03, however, might stand pretty much unchanged because it regulates certain locations while leaving the vast majority of locations citizens frequent untouched.

    Under this reading CHL regulations with a "shall issue" requirement might pass muster, as long as OC isn't also restricted. Our current situation with CHL as the only way to legally wear a handgun away from home is unreasonable.

    In fact, OC and CC everywhere of any arm with limited restrictions over times or locations would be the correct way for the Legislature to exercise their Constitutional "power" to "regulate the wearing of arms, with a view to prevent crime."

    --Aaron

    [1] Some might argue that since long guns are still allowed then 46.02 passes muster, but not if you consider that we're guaranteed the RKBA for defense of self and the State. Between Federal firearm laws restricting barrel lengths and the practicality of getting any long-gun into action in close quarters, this is pretty much a specious argument. The US Supreme court recognized an additional and very interesting reason to protect handgun ownership as part of our individual right: "Americans overwhelmingly choose [handguns] for the lawful purpose of self-defense".

    [2] One might argue that the legislation itself must be temporary, lasting long enough for the crime threat to subside. One might also argue that our current laws that prohibit "possession of arms violates the Constitution because the power is strictly limited to regulating "wearing".

    [3] Again it would be specious to claim that because citizens can exercise the right of armed self-defense at home and in their car their RKBA aren't being eliminated. We spend disproportionately more time not at home or in the car to that time that we do spend there. A trivial right is no right at all.
    Section 46.02 has passed muster in the courts many times both before and after the CHL law. While I'd love to see the Texas Supreme Court (or Court of Criminal Appeals, more likely) have a change of heart and decide that the Legislature can regulate how and where arms are wornbut not complete BAN OC, I don't expect that will happen.

    To the point of your post, the parts of section 46 that seems obviously unconstitutional are the restrictions on POSSESSION or OWNERSHIP. Machine guns, for example, are forbidden with a "defense to prosecution" that it was regisered under the NFA. Since the Legislature on has the power to regulate the WEARING of arms, I don't see how this would stand if challenged.

  23. #23
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    SA-TX wrote:
    <snip>
    Section 46.02 has passed muster in the courts many times both before and after the CHL law. While I'd love to see the Texas Supreme Court (or Court of Criminal Appeals, more likely) have a change of heart and decide that the Legislature can regulate how and where arms are wornbut not complete BAN OC, I don't expect that will happen.

    To the point of your post, the parts of section 46 that seems obviously unconstitutional are the restrictions on POSSESSION or OWNERSHIP. Machine guns, for example, are forbidden with a "defense to prosecution" that it was regisered under the NFA. Since the Legislature on has the power to regulate the WEARING of arms, I don't see how this would stand if challenged.
    Do you have any references to legal challenges to 46.02 that uphold it or similar laws? I don't mean that argumentatively but sincerely. Lots of people claim it but nobody has provided a single case nor have I found any specific challenges to 46.02 as violating the TX Constitution. The cases I've found have been challenges to either TX laws or the TX BoR as violating 2a the Federal BoR.

    My point is that 46.02 is so broad and encompassing that it effectively removes all the protections afforded to citizens of their right to keep and bear arms AS embodied in the Texas Constitution. That's where the challenge should be made for now. Texas courts deciding whether 46.02 violates the TX BoR.

    --Aaron


  24. #24
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    akpoff wrote:
    SA-TX wrote:
    <snip>
    Section 46.02 has passed muster in the courts many times both before and after the CHL law. While I'd love to see the Texas Supreme Court (or Court of Criminal Appeals, more likely) have a change of heart and decide that the Legislature can regulate how and where arms are wornbut not complete BAN OC, I don't expect that will happen.

    To the point of your post, the parts of section 46 that seems obviously unconstitutional are the restrictions on POSSESSION or OWNERSHIP. Machine guns, for example, are forbidden with a "defense to prosecution" that it was regisered under the NFA. Since the Legislature on has the power to regulate the WEARING of arms, I don't see how this would stand if challenged.
    Do you have any references to legal challenges to 46.02 that uphold it or similar laws? I don't mean that argumentatively but sincerely. Lots of people claim it but nobody has provided a single case nor have I found any specific challenges to 46.02 as violating the TX Constitution. The cases I've found have been challenges to either TX laws or the TX BoR as violating 2a the Federal BoR.

    My point is that 46.02 is so broad and encompassing that it effectively removes all the protections afforded to citizens of their right to keep and bear arms AS embodied in the Texas Constitution. That's where the challenge should be made for now. Texas courts deciding whether 46.02 violates the TX BoR.

    --Aaron
    Devil's advocate, and flame suit on:

    I disagree that you could find TPC Chapter 46 unconstitutional given its current form and existing legal precedent applicable to the State of Texas. I disagree because 46.02 is only a small part of weapons law in Texas, and because of judicial precedent at the federal level.

    First, let's look at 46.02 itself. Its first sentence bans carrying of a handgun. Its next sentence exempts carry in a vehicle. 46.15 which, due to its form, MUST be considered whenever considering 46.02, additionally exempts carry on your own property and concealed carry by a CHL holder.

    Thus, State law allows citizens to carry a handgunpractically anywhere, and don't care how you do it when not in public. The law is also completely mute on the topic of long guns. Therefore, as purchase, ownership, possession and carry of weapons is allowed, the Texas Constitution's statement of the right is upheld.

    Now, let's look at federal law. Most of us here know full well that the 2A has not been incorporated as a restriction on States' powers. Several court cases (Barron v Baltimore, Pervear v Massachussetts) before the passage of the 14th Amendment, and the Slaughterhouse cases afterward, establish that the provisions of the constitution are a check on Federal power only, and that the Priviliges or Immunities Clause of the 14A did not apply to the States (why then did it start "No State shall make or enforce any law..."). Incorporation has instead been achieved through the Due Process clause of the next sentence, which has not yet been applied to all or any part of the 2A. Heller didn't change anything in Texas law; the Texas Constitution recognizes the individual right ("Every citizen shall have the right to keep and bear arms") and the right has never been ruled absolute. So, the State of Texas, for now, has the power to regulate carry of weapons, as it grants itself in its Constitution which is the framework for all other State laws.

    In addition, consider the equivalent statements of the Constitutions of the newly-independent colonies, which existed before the ratification of the Constitution much less the BoR. A majority, including Virginia's andMassachussetts', state that the right does not extend toand will not be interpreted to allow the carrying of concealed weapons. Thus, even the members of the Continental Congress would have agreed that the prohibition on CC did not count.

    *flame suit off*

    To fight this current state of affairs from a constitutional standpoint, the 2A MUST be incorporated in its entirety to the States. Then, the argument must be made that since the RKBA is nowa check on States' power, the States do NOT in fact have the power to infringe the right to bear (carry) arms by way of licensing. Now, you run into trouble here because the 2A is recognized as not absolute, and you get into historical discussions of "did the Framers think that there actually were ways in which the right could be limited that did not infringe?" and "is this really a right that the States have no power to regulate at all?"

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