akpoff
Founder's Club Member
imported post
The Texas Constitution reads:
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.
The Texas Constitution reads:
There are two parts in the "but" clause that stand out to me: "regulate" and "with a view to prevent crime".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.
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.