We are getting our way -- concealed carry is getting better each session -- and my guess is that working with the Lege will be quicker than anything that is going to comefrom the 5th Circuit. Suits take a looooong time and tend to be fact specific. Nordyke and Heller both demonstrate this.
I don't agree. We are subject to the whim of the state legislatures, state courts, and popular opinion. Just look at the right to keep and bear arms in the Texas constitutions in 1832, 1845, then 1868 and 1876. Compare that with all the amendments to the 2nd amendment. There's no national standard against the 2nd amendment that's required under the 14th amendment. We're in completely new territory now. I would think that starting now on these Texas laws is better than later.
I agree that with the 5th Circuit's conservative bent it will probably incorporate the 2nd, but even when it does, the holding in Heller
is so narrow that I doubt any Texas statutes would be declared unconstitutional.
Heller left the standard for scrutiny against the 2nd amendment as a fundamental individual right for self defense completely wide open. They hinted at what would stand, and ruled that the DC ordinances wouldn't stand under any standard. The standard for individual self defense under the 2nd amendment is otherwise undefined.
I do agree that there are some statutes that are unconstitutional under the Texas Constitution such as the Prohibited Weapons section. Given the "wearing of arms" language, what makes them think they can ban NFA weapons (yes, there is a "defense to prosecution" that it is registered, but you can still be arrested)? Similarly, there is the Prohibited Places section where not just handguns (which are worn), but long arms are banned, too. Under what authority was that passed? There is also a section dealing with a particular lake or river (don't have the cite handy but could dig it up if need be) that makes the possession of a gun prima facia evidance of poaching. WTF?!
See what I mean? We're not getting our way.
As for open carry, I don't think we'll have a real federal case unless and until the federal courts expand on the base that Heller has laid. Heller was primarily a "keep arms" case, not a "bear arms" one. If the state of federal law ever gets to the point where the 2A is read to provide a certain, minimum right to bear arms in public without state approval, then Texas's CHL-only approach may be in danger. Not until.
And when will that ever happen if we don't file cases to challenge these specific laws and also policies in federal court? Heller was primarily a 2nd amendment case. It covered way more ground than just the specific DC ordinance. Just read the Nordyke decision, see how many times it was cited, and ask yourself how many times any of the cites had anything to do with the specifics of the DC case. It defined the 2nd amendment as a fundamental and individual right to self defense. That is ground breaking. Why shouldn't Texas lead the way?
We still have a pretty conservative, pro-2A legislature. Heller and Nordyke can be most useful in pursuading members to vote for open carry and relaxed concealed carry.
That's true, and the more significant cases that are filed, the more money the state has to spend defending them, and the more they lose, will only increase that persuasiveness.
Federal cases are filed all the time on other Bill of Rights issues. Why should we tolerate these issues in Texas without filing the Federal cases. Why are we avoiding the Federal courts on only gun rights issues? How long do you think it would take for a federal case to be filed if the legislature passed the same kind of onerous requirements limiting free speech? What if they passed a law that required training, registration, and background checks before you could become a preacher, banning all others from preaching? How long do you think it would take before someone was down at the courthouse with a lawsuit?