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

akpoff · Aug 26, 2008

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ELK-Tex wrote:

Kingmonkey wrote:

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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.

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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.

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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 2[sup]nd[/sup]? How can the constitutional right enumerated in the 2[sup]nd[/sup] be infringed but the 1[sup]st[/sup] is sacrosanct? Especially since it says "the right of the people to keep and bear arms shall not be infringed"??? :banghead:

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.

:lol: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/projects/ftrials/conlaw/incorp.htm

SA-TX · Aug 29, 2008

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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.

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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.

akpoff · Aug 29, 2008

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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

Liko81 · Aug 29, 2008

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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.

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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 :banghead::banghead::banghead

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?"

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

akpoff

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SA-TX

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akpoff

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Liko81

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