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Thread: Lawful bearing, wearing, or carrying in Texas

  1. #1
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    I've been doing a little digging into the history behind the Texas "handgun issue". Not that I've uncovered anything startling or heretofore not covered - just a refeshing for myself I guess.

    What is obvious is that the 1871 Texas legislation is in keeping with efforts by the other former ConfederateStates of America to restrict the ability of freedmen to possess firearms in general, and when that failed by the ratification of the 14th Amendment- by default to endeavor to hampertheir ability to carry handguns. Beyond that selective application - it did not hinder anyone else's ability to "open carry".

    It is absolutely ludicrous to invision anyone living in or traveling through Texas (especially West or South Texas, or the Rio Grande Valley)in the 1870's to refrain from wearing a Colt Navy .44, or any other substitute on their hip, tucked inside their belt, or coat pocket. The history of exercising the right to keep and bear armsin Texas has been -and continues to be a work in progress. This is not a right subject to the grant of privilege from either State or federal government.


    It is well to remember that post -Civil War "civilized Texans" lived in East Texas primarily. Liberty, Columbus, Houston, Galveston. Beaumont, and Eastward. You would have had a hard time convincing folks in San Angelo, San Antonio, Gonzales, Fannin, Goliad, etc to not wear a side-arm.

    Everything West of the Brazos was the frontier. "Law enforcement " was an individual responsibility. There were few "cry babies" running to the "law" (if they couldlocate such an entity ) The Comanchees weren't paticularly deterred by the legislative acts emanating from Austin. . I once owned a parcel of land in Mason County that was a Comanchee "bivouac area". During the 1880's a wagon load of white" settlers wasambushed and slaughtered 8.5 miles North-East of Mason , Texas and the ambush occurred adjacent to my property. I lived there for some years . I visited the Comanchee campfire sites - still stained by the blackened charcoal. This is a documented historical fact. Now do you really think these settlers were even aware of Title 10, Chapter 46 , sec. 46.02 ? If they had been - would they have left their Colts at home in deferrence to Austin'sinfinite wisdom ?

    I'll go further than that. Very few LEO's or citizens in West Texaswere of the opinion that mere "possession of a handgun" itself constituted a "crime" until Slick Willie was elected and the gun-grabbers seized the moment to advance their unconstitutional schemes. Check out the 1995 flood of gun laws at the federal and state level. That's when Title 10, Chapter 46, sec. 46.02 was "rediscovered", and given a front-row seat by law enforcement - primarily inHarris County. That's where most law-abiding handgun"possessors" were arrested prior to the 1995 passage of the Texas CHL .

    I've said this before -in the absence of criminal intent- the carrying, wearing, bearing of a handgun in Texas IS NOT ILLEGAL. Title 10, Chapter 46, sec.46.02 addresses CRIMINAL CONDUCT. Now- best be aware that "unnecessarilythreatening the public with the wearing, bearing, carrying of any firearm (or other weapon)" is prima facie criminal conduct.

    I've come to the conclusion that freedom seeking Texans should not be begging the legislature to "allow" them to wear displayed handguns lawfully. It's already"legal" to wear a handgun lawfullyin Texas. Being respectful of the property rights of others,prudence, and reasonable judgement as to where, when , and perhapsHOW to present one's self in an armed condition maybe challenging - but still a worthy, and acceptable undertaking.

    The Supreme Court in Heller v DC laid out some foundational arguments for treatment of Title 10, Chapter 46, sec. 46.02 as only applicable to criminal conduct. Hanguns are the "quintessential self-defense weapon" the possession, and carrying of which is protected by the U.S. Constitution , as well as the Texas Constitution for the lawful purpose of self-defense. Texas does not (yet) criminalize concealed carry of a handgun - surprisingly.

    I refuse to suffer further grief over this conjured up myth that OC is illegal in Texas.I have , and will continue to press the envelope of public tolerance for my displayed handgun, with prudent regard for the social environment. I've been practicing what I preach for some time already without any problem. Until folks realize that this right is not something Austin can bestow upon usthere will be no progress. Stop begging -start exercising. Let's bide our time, keep up the pressure, as we await the Supreme Court's long over-due "incorporation" of theSecond Amendment.



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    Well, sounds like we're back to needing a test case.

    Any volunteers?

    -- John D (in "civilized" Galveston)
    (formerly of Colorado Springs, CO)

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    Ya'll are making this WAY too complicated...

    The 2nd Amendment guarantees the "right to bare arms". Under the system known as "federalism" that we have in the United States, the Constitution trumps everything else...including TX law.

    With that in mind, carry when and where and how you want with your firearm. It is perfectly legal and no police officer or DA can arrest and/or prosecute you for it. I know this because I am a peace officer in TX and I know the legal theory of federalism and how it applies to the 2nd Amend.

    Just don't worry about the TX statutes and do what you want with your fiream. You won't get into any trouble...I promise!



    David

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    The first person that OCs a handgun down here will be arrested and gun confiscated. TX is not listed as an OC state...how can that be wrong all this time?

    ...and I don't see anyone willing to walk around OCing a handgun.

    Please come down here and do that so we can follow your progress in the local, Houston and statewide news.

    -- John D.
    (formerly of Colorado Springs, CO)

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    I don't live on Galveston Island. I've been there though , and there are some back street areas that I would probably avoid after the sun goes down. I have personally practiced "OC" in Texas (in far West Texas) in the past - on a routine basis - but I wouldn't even consider doing so in the Houston area.I've presented a case for serious (I hope) consideration. If folks are so proud of the status quo in Texas - please enjoy.I presented a case for the evolving "law" phenomenum being allowed to spread deception and intimidate citizens from exercising their inalienable right to self-defense.

    If you think your state issued license "allows" you to exercise your right to bear arms - happy trails. The 2nd amendment does not grant, or protectyour right to keep and bear arms. That IS YOUR RIGHT - either exercise it or waive it - I don't really care which you do.Ther is no collective responsibility to"rescue" the rights of others that are being "held hostage". That is their responsibility if they choose to undertake it.

    If the notion ofexercising a right that is being obstensibly denied creates uneasiness in some folks - I submit that those folks have already voluntarily surrendered said rights. I simply choose not toco-operate with a conspiracy to violate my civil rights. I will adapt to whatever the circumstances, make personal choices , to ensure my personal safety.

    I have no desire to parade around "OC'ing" a handgun as some call it to prove my point, anymore than I would "OC" a shortened .30/.30 in a belt holster although that would be"legal" in Texas. Do I occassionally allow the display of my holstered handgun - you bet.

    I honestly don't know why some folks even hang around this forum - unless it's to stroke each other and wallow in collective self-pity . I'm begining to think more can be accomplished on an individual basis.

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    Then do so!

    I've been trying to be polite reading your comments about how it's "legal to OC in the state of Texas" according to this or that legal citation, and your criticism of the rest of us here, but that politeness isover nowsince you show so much disdain and disrespect for me andothers "who don't exercise our rights."

    I am tired of people like you, MAINLY YOU, saying weCAN OC -- it's legal -- when we can't. I have invited you, Mr. Blowhard, to practice what you preach but you do not. WHY NOT OC down here in the Houston area, isn't it part of Texas? So why do you "allegedly" OC in West Texas but not here? Probably because you're full of crap.

    I asked you to run for office if you're so obsessed with this issue, but you didn't even bother to respond. How rude.

    So go ahead and "go it alone," who cares, JERK. You're just a lot of citations and rhetoric but when it comes down to it, you've got no substance whatsoever.

    Put up or shut up...in this case, just **** as you can't put up anything except talk.

    So just leave.

    -- John D.



    (formerly of Colorado Springs, CO)

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    Cloudcroft -My reference to Galveston was only a reflection on my many visits there, and the tourist environment with all the issues that factor presents. No, I would not OC on Galveston Island. And I'm sure not going to drive 300 miles down there to demonstrate my manhood.I was not targeting you in particular, Cloudcroft in myalluding to theapparent disposition of many expressed here.

    The purpose of any forum is toprovide an outlet for folks to express their point of view. I have my point of view - and others have theirs. I have just as much right to express myself on the OC issue as you have to voice your impatience with me.

    The reason I have pointed out some of the history on this issue - is that many seem to be misinterpreting 46.02 - even LEO's apparently- as though this part of the penal code was enacted to prohibit "open carry". That's unfortunate, given this creates a current that runs counter to the goals of the open carry effort in Texas.

    Oh, finally - I really am not a "blowhard" - and I gave up feeling like I had to prove myself to others a long while back. I just askany who will - to givesome thought to the journey this issue has been on for about 140 years in Texas -and maybe a little retracing footsteps would be helpful in developing strategies to change attitudes.

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    Rush Creek wrote:
    Cloudcroft -My reference to Galveston was only a reflection on my many visits there, and the tourist environment with all the issues that factor presents. No, I would not OC on Galveston Island. And I'm sure not going to drive 300 miles down there to demonstrate my manhood.I was not targeting you in particular, Cloudcroft in myalluding to theapparent disposition of many expressed here.

    The purpose of any forum is toprovide an outlet for folks to express their point of view. I have my point of view - and others have theirs. I have just as much right to express myself on the OC issue as you have to voice your impatience with me.

    The reason I have pointed out some of the history on this issue - is that many seem to be misinterpreting 46.02 - even LEO's apparently- as though this part of the penal code was enacted to prohibit "open carry". That's unfortunate, given this creates a current that runs counter to the goals of the open carry effort in Texas.

    Oh, finally - I really am not a "blowhard" - and I gave up feeling like I had to prove myself to others a long while back. I just askany who will - to givesome thought to the journey this issue has been on for about 140 years in Texas -and maybe a little retracing footsteps would be helpful in developing strategies to change attitudes.
    Try OC'ing in Arlington and be sure to let us know how that works out for you. I look forward to reading about you in the future as you are charged.:celebrate

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    Rush (Sand) Creek -
    I think everybody understands the point that you are trying to make, however, in practice, your 'point' is simply not the case! I would absolutely LOVE to see your point argued and WON in court! That would really give some momentum to the cause! The problem is that most of us do not have the time or the resources to fight such a case! So, if you have the time and resources, by all means go ahead!

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    Rush Creek wrote:
    Cloudcroft -My reference to Galveston was only a reflection on my many visits there, and the tourist environment with all the issues that factor presents. No, I would not OC on Galveston Island. And I'm sure not going to drive 300 miles down there to demonstrate my manhood.I was not targeting you in particular, Cloudcroft in myalluding to theapparent disposition of many expressed here.

    The purpose of any forum is toprovide an outlet for folks to express their point of view. I have my point of view - and others have theirs. I have just as much right to express myself on the OC issue as you have to voice your impatience with me.

    The reason I have pointed out some of the history on this issue - is that many seem to be misinterpreting 46.02 - even LEO's apparently- as though this part of the penal code was enacted to prohibit "open carry". That's unfortunate, given this creates a current that runs counter to the goals of the open carry effort in Texas.

    Oh, finally - I really am not a "blowhard" - and I gave up feeling like I had to prove myself to others a long while back. I just askany who will - to givesome thought to the journey this issue has been on for about 140 years in Texas -and maybe a little retracing footsteps would be helpful in developing strategies to change attitudes.
    Rush, I think your point that UCW has been inconsistently enforced depending on where in the state you are has merit. I suspect that a rural West Texasofficer would be more willing to chalk up something to "traveling" whereas you'd end up in jail for the same trip in urban parts of Texas.

    I witnessed this first hand when 4 of us Tech students were coming back from a camping trip in Palo Duro. My friend who was driving was a licensed security guard (could carry on duty) but that gave him no more right to carry when off duty and out of uniform than anyone else. His wallet and .357 were in the console when he was pulled over by a DPS trooper for speeding. He told the trooper about the pistol because he needed to open the console to get to his DL and insurance. No problem. Trooper saw the camping gear and told him that since we were traveling, being armed wasn't against the law. Would the story have been different if we'd been one county north of Harris instead of Lubbock? Perhaps so although DPS officers are, in my opinion,more likely to professionally enforce the law consistently because they do have state-wide jurisdiction and aren't as subject to local prejudices.

    That said, even an accurate recitation of history and correct observations about how nearly the whole populous wasarmed at various times in our history is no match for criminal law precedent. The fact is that UCW is a serious charge and no one should falsely believe that open carry in Texas, absent a situation that qualifies as an exemption from UCW, is legal or accepted. No good will come of it.

    If you truly want to open carry and have the odds of acquitalon your side (although you could still potentially lose) there is one option: carry an antique revolver. I commend to your attention the definition of "firearm" and "handgun" from Penal Code, chapter 42:

    (3)"Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

    (A)an antique or curio firearm manufactured before 1899; or

    (B)a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

    (5)"Handgun" means any firearm that is designed, made, or adapted to be fired with one hand.

    Notice that "antique firearm" and "curio firearm" aren't defined. Additionally, there aren't any known court cases on whether or not ANY pre-1899 handgun qualifies or it it must have some special significance. It is worth noting that FEDERAL law defines an "antique firearm" as any made before 1899. Those can be purchased with no paperwork, across state lines, and without the assistance of an FFL. They do NOT have to be black powder. For example, my S&W Safety Hammerless in .38 S&W from 1891 qualifies.

    I am not a lawyer, but Texas law appears to say that I could strap on that revolver and openly carry it nearly anywhere (since it isn't a firearm or a handgun and you aren't using your CHL authority, there are nearly no "off-limits" areas).

    Again, if you really want to make a political statement and give yourself a pretty decent chance to win in court when/if you are arrested, that would be my choice.

    SA-TX

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    SA-TX : Thank you for your thoughtful reply. Your points are right on the mark. Make no mistake - I incourage no person to test the current penal code in Texas based upon my historical, cultural, or personalobservations.

    On the other side of the coin - I detect the persistent presence of a mind-set among some folks that amounts to not only reinforcement- but a strengthening of the "legal" noose around the free exercise of this right in Texas. When we are talking about the exercise of a right - allowances, dispensations, or licenses are not the answer. There are huge obstacles standing in front of "legal" open carry in Texas. The same obstacles that frustrate exercise of this right in the often cited "legal" states. Hoping for a definitive moment when we all wake up some morning to learn that law-abiding citizens may hit the streets with their displayed HG's and be greeted by overwhelming approval - probably isn't going to happen.

    Appreciating the history behind the infringement of the 2A in Texas is necessary to mobilizing an effort aimed at restoration of the right. The same "selective" ( read: "demographic" profile) discomfort with the notion of law-abiding folks in Texas walking down 6th Street in Austin with a holstered Glockis a big part of the failure to get OC addressed in the last Legislature. We are all (myself included) shackled with conditioned perceptions, suspicions, concerns about "some people" being "allowed" to go about their business wearing a firearm. The 140 year old attitudes that gave birth to46.02 still linger.

    Aside from the legal parameters , what do we say as a society regarding the body-count of the weaker membersamong us who just might not be showing up in the morgues every morning had they not been deprived of their right to arm themselvesagainst violent sadistic predators ? Granted, most folks in Texas are "allowed" (eligible for a license) to exercise this right - but that still is not recognition of the existence of that right. Current restrictions imposed on CHL holders clearly eliminate licensed concealed carry in Texas from any definition of the actual exercise of a right.


    The civil rights movement that made traction during the 60's/70's didn't happen because everyone one fine day was suddenly"allowed" to sit in the front of the bus, issued a license to do so, or welcomed at the restuarant door just because some "law" had just been enacted, or rescinded.

    We all recognize that the only people significantly impacted by 46.02 in Texas are the law-abiding. Violent criminal minds are not deterred. Some folks are fortunate by virtue of county of residence, social affiliation, or perhaps some aspect of their persona to be able to exercise this right without undue attention being brought to bear . At some point more of these folks need to move from the "back of the bus" if the balance is ever going to be swayed in the opposite direction.


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    Rush Creek wrote:
    SA-TX : Thank you for your thoughtful reply. Your points are right on the mark. Make no mistake - I incourage no person to test the current penal code in Texas based upon my historical, cultural, or personalobservations.

    On the other side of the coin - I detect the persistent presence of a mind-set among some folks that amounts to not only reinforcement- but a strengthening of the "legal" noose around the free exercise of this right in Texas. When we are talking about the exercise of a right - allowances, dispensations, or licenses are not the answer. There are huge obstacles standing in front of "legal" open carry in Texas. The same obstacles that frustrate exercise of this right in the often cited "legal" states. Hoping for a definitive moment when we all wake up some morning to learn that law-abiding citizens may hit the streets with their displayed HG's and be greeted by overwhelming approval - probably isn't going to happen.

    Appreciating the history behind the infringement of the 2A in Texas is necessary to mobilizing an effort aimed at restoration of the right. The same "selective" ( read: "demographic" profile) discomfort with the notion of law-abiding folks in Texas walking down 6th Street in Austin with a holstered Glockis a big part of the failure to get OC addressed in the last Legislature. We are all (myself included) shackled with conditioned perceptions, suspicions, concerns about "some people" being "allowed" to go about their business wearing a firearm. The 140 year old attitudes that gave birth to46.02 still linger.

    Aside from the legal parameters , what do we say as a society regarding the body-count of the weaker membersamong us who just might not be showing up in the morgues every morning had they not been deprived of their right to arm themselvesagainst violent sadistic predators ? Granted, most folks in Texas are "allowed" (eligible for a license) to exercise this right - but that still is not recognition of the existence of that right. Current restrictions imposed on CHL holders clearly eliminate licensed concealed carry in Texas from any definition of the actual exercise of a right.


    The civil rights movement that made traction during the 60's/70's didn't happen because everyone one fine day was suddenly"allowed" to sit in the front of the bus, issued a license to do so, or welcomed at the restuarant door just because some "law" had just been enacted, or rescinded.

    We all recognize that the only people significantly impacted by 46.02 in Texas are the law-abiding. Violent criminal minds are not deterred. Some folks are fortunate by virtue of county of residence, social affiliation, or perhaps some aspect of their persona to be able to exercise this right without undue attention being brought to bear . At some point more of these folks need to move from the "back of the bus" if the balance is ever going to be swayed in the opposite direction.
    I agree and attitudes are changing. Look what has happened since 1987 & Florida. CC has swept the country. Another recent bit of news from October 12, 2009: support for handgun ban falls to the lowest level in 50 years (http://www.economist.com/daily/chart...9&fsrc=rss).

    We are winning.Theanti-gun faction has had patience and incrementally pushed their agenda over decades while good men and women paid no attention. Now they are awakening.To name a few:

    1) We havewins in federal courts around the country (most recently in New Mexico). OCDO, VCDL, GeorgiaCarryand other groups are making progress and pushing the banners back on their heels on their turf (the courts).

    2) For those who hoped Obama and a heavily Democratic Congress wouldreverse the tide, 70-somethingcongressional Democrats (!) signed a letter urging the new president not to proposean assault weapons ban. Those votes plusthose of Republicans means that it will be verydifficult for him.

    3) He had to sign the legislation allowing carry in the national parks.

    4) Voting rights for the D.C. delegate was derailed over a carry provision that was attached by pro-gun Democrats and Republicans. They are still stuck on that one.

    5) Heller was huge. The upcoming applicability to the states is even bigger. That will ensure lawsuits for the next20 years as the level of scrutiny is determined and regulations large and small are litigated. They will be on defense while we are on offense. :celebrate

    You get the picture. The last 10 yearshave been very, very good forus and the momentum continues to build. We ARE reclaiming our birthright.

    SA-TX

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    I was not being sarcastic at all. Federal law (the US Constitution) trumps TX and local statutes. Carry any way you want because the Founding Fathers have guaranteed you that right. I am a peace officer here in TX and I can promise that I want arrest you and neither will any other "law abiding" peace officer.

    Neither of the two below statutes could pass a Constitutional review by the courts:

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.[/b]


    (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    However, they quoted it to me like this...

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN[/b]

    David

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    dlofton wrote:
    I was not being sarcastic at all. Federal law (the US Constitution) trumps TX and local statutes. Carry any way you want because the Founding Fathers have guaranteed you that right. I am a peace officer here in TX and I can promise that I want arrest you and neither will any other "law abiding" peace officer.

    Neither of the two below statutes could pass a Constitutional review by the courts:

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.[/b]


    (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    However, they quoted it to me like this...

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN[/b]

    David
    I would be a little careful giving legal advice like that.

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    Why? As far as I know I am not an attorney so I am not subject to the bar rules for the State of Texas and also nobody has been prosecuted for any advice that I have given them so they have to "standing" to sue me. I guess that means I can say just about anything I want. I am only repeating with the Constitution says.

    David

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    DLofton -I believe there are many LEO's who share your perspective.

    Lawful OC presently is do-able in Texas , but it requires maturity, common-sense, prudence, and somespine. You are not ill-advising anyone. There are many LEO's in Texas that agree with your perspective.Those who have insight, purpose of mind, and a desire to bring about change will reflect on what you have expressed. One size does not fit all when it comes to this subject.

    Some concepts require the abilitytostep back a bit and analyze situations and expand therange of one's perceptive skills- or even explore new paths - sometimes referred to as the "pioneer spirit". There are some folks that cut paths for others to follow. Some folks just travel on well-worn paths. Some folks have more respect for the "stay off grass" signs than the very grass the signs were designed to protect.



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    Please don't let your hearts be troubled over my apparent mental confusion regarding the laws in Texas.I only lived in Texas for 45 years- prior to moving to Colorado so I haven't had time to educate my self regarding Texas firearm law as well as somehave.

    I would actually prefer that no one be tempted to risk violating Texas law based upon the thoughts I have expressed.Finding one's self locked in the jaws of the criminal justice system of any jurisdiction can result in a heap of miseryand cost a lot of money.

    It is usually a very fine line that navigates between lawful and unlawful.I encourage others to study the law in Texas and come to their own conclusions . Keep an open mind about it and don't check your common-sense at the door. Hopefully in the not to distant future Austin will see the handwiting on the wall and issue an OC emancipation proclamation - until then I'll just keep on... "traveling".





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    the constitution's bill of rights explains the trumping power of it's self. the texas constitution says that it (the texas constitution) is subject only to the constitution of the united states of america. i seem to recall one of my history teachers saying that texas wrote their second in this manner to rejoin the union after the civil war. makes sense. the supreme court (us) at the time said that texas had not seceeded, yet the president at the time, said she had, and readmitted her to the union. by looking at various other rights, one can extrapolate the extents of given rights whether they be natural (god given) priveleges and immunities, etc. i asked around about opoen carry before doing so, and initially was told no i could not (i was also told that if i were to carry in my hands or if i had slung one over my shoulder a rifle, i would be arrested, we discussed that at length as well). i made my case to several officers and do occasionallyOC in alto tx ( they just so happened to be somewhat patriotic, and knew me from my time here, and that i served our country). though in nacogdoches tx, i was searched (repeatedly)for a weapon by an officer who i had asked earlier about OCing. my belief is that the previous two hundred some odd years have produced enough precedent that the supreme court thought it silly to revisit a subject as covered as the second is. i cannot be of a mind to OC anywhere else due to certain complications on my end, due to exercise of certain other rights. it would only serve to hurt us all. dlawton, most peace officers are chaos officers. in that even if no one or more persons are being hurt, no property destroyed, etc, freedoms or rights are being infringed. i normally am of the mind we all could do without peace officers, judges, lawyers, you seem ok. i once was asked while on contempt (for claiming a right specified by the same judge just seconds earlier) if i would demand to know if someone was carrying, i said no, he a member of nacogdoches county's jail staff, looked at me if i was stupid or what have you. i called him back to the bars and declared to him, you chose your job as i chose to be in the military, that all residing inside the US and its territories have those rights spelled out in the constitution. at hearing i had served he dropped his cocky demeanor. i personally like these famous gun quotes by dictators and chancellors. mao tse tung, i believe said, 'one man with a gun can control a hundred others'. this is what most cops seem to do. i know a few people who did serve in the military who are know police officers. i asked them if they gave any thought to their oaths. being military is supposed to have nearly the same oath as judges, peace officers etc. defend the constitution. but there has been this oath on ' color of law'. the law is more often that not in contradiction with the constitution, and according to marshall, is hereby null and void. main problem is cops still enforce them. take the right to travel. if we are to throw off the tyrannical government, yet none who would do so have license or insurance etc, how are we to do such an undertaking. the right to travel is about as covered as is the second. just not stipulated in the bill of rights. the courts, the higher ones, recognize it as an inherenet right, so old that it need not be included into the bill of rights. alas, i feel i am losing my audience. have a great life, and god bless you all, if it be right that he should do so.

  19. #19
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    Regarding the LEO encounter in Shertz when you were open carrying on your own property...

    They didn't arrest you did they? Can you give details of the verbal exchange? I live inside Loop 1604 and OC on my property all the time, and have never once been hassled by anyone.

  20. #20
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    HI All !



    From California, I been reading your post's, seems like someone needs to be a test case.

    Here in California, we read the laws closely, and you can OC with certain restrictions

    such a UCO unloaded opencarry, yes we get harrased by the cops, however

    we can sue when we get arrested, and the LEO's are learning to be careful, and the Yes open carry is legal in California.

    Avoiding schools zones and government buildings.

    So looks like in Texas, someone will have to go to lower court, and then appeal

    to a higher court, which will have to look into the Constitutionality of the "Bad Law".

    "The losser pays the bill, to the court or lawyer".

    We have Cal-Guns here to help fight for our rights, yes "Freedom Costs".

    But we must ask is "Freedom worth it' ? I say Yes !

    Also many are UOC-ing in California, and it continues to grow.

    We pass out pamphlets, showing the laws and how we are Legal in what we are doing OCing.

    So to my Texas friends, "Fight for your rights", Research the laws and exercise

    your rights.

    Even if its like "SA_TX" saids Black powder antique firearms. Better then nothing !

    Also there is U.S. Title 42 " Depravation of rights under color of law".

    "Is Texas a free state or not"? Let the jury decide that one !

    Was that law even constitutional ? And who voted for it ?

    Well God Bless Texas ! And hopeing it will all come together for you all !

    Robin47



  21. #21
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    Unfortunately, in Texas, one may not carry a(n) '... llegal Knife, Handgun, or Club' regardless as to whether or not the carrying is incident to doing so knowingly, intentionally, or recklessly, as is codified under Texas Penal Law Sec. 46-02.

    However, this Section does not make any reference to Long Guns, therefor; such carry in Public is Legal!

    In contary to the provisions of Sec. 46-02, Texas Penal Code 46-03 does howeevr make reference to a/ny Firearm as for the places they are prohibited. In this instance, although Legal to carry Firearms [Long Guns] in Public, they, however, do become Illegal to or while at any: 1. School (which includes its grounds/bus/buildings etc.), 2. On the premises of any Voting Place on Voting Day, 3. Any Government Court Roomor its premises, 4. Racetraks, 5. Secure Areas of Airports, or 5. Within a 1000 feet of any execution at any location being used for such. The only exception that would be applicable to ordianry Persons with Long Guns in this instance would be for those who are in, on, or within their own vehicles, homes, or properties and this exception only applies to 46-03(6).

    Now here is where things get interesting! Under Texas Penal Code 46.035, carrying a Handgun, even if Licensed under The Authority of Texas Government Code Subchapter H, 411, supra, is a crime if done while such Person is to or while at: 1. Any establishment that sells Alcohol for consumption on premises taht derives more tahn 51% of their business from Alcohol sells, 2. Any School Event(outside of School Grounds), 3. Correcetional Facilities, 4. Hospitals/Nursing Homes, 5. AmusementParks in counties withmore tahn 1,000,000 people as residents that encompass more tahn 75 acres of Land during the event,6. Churchs/Places of Worship, 7. Governmental entity meetings (Such as City Council Meetings, etc.), 8. While intoxicated, or finally, 9. Carrying a Handgun Openlyon or about the Person (unlessit is done in Self-Defense) in any other place anywhere in Texas.

    What makes Paragraph 3 important is that it only applies to andeffects Handguns, not Long Guns. Therefore, none of the Places listed in Texas Penal Code Sec. 46-035 apply to or effect Long Guns, and therefor they may be carried, yes openly carried, to all of those places(except correctional facilities Texas Penal Code Sec. 46-10)as long as they are not carried to any place listed under Texas Penal Code 46.03.

    Seemingly, Texas Penal Code Sec. 46-10 only applies to Persons who are confined within the institution, but this is a risky perspective to take. Texas Penal Code Sec. 46-10 is written in a way that could effect any other Person, so it is best not to take any Firearm there at all.

    Texas Penal Code Sec. 46-11 is a penalty enhancer if the conduct which is otherwise forbidden under in otherPenal Code in article 46-X takes place: 1. Within 300 feet of a School, or 2. At an premises where a School event is taking place. The penalty enhancerincreases the punishment to the next highest offenseif either one of those is true-therefore, aThrid Degree Felony Conviction! This applies to all Firearms and Weapons, if and only if, The State can prove a certain underlining offense making these provisions applicable. Therefore, if no offense is being commited, then this penalty enhancer can not be applied, even if the conditions under the penalty enhancer are true.

    Under Nonapplicability Law, Texas Penal Code Sec. 46-15, one may carry a/n llegal Knife, Handgun, or Club if that Person is either: 1. 'Traveling'... no definition of what Traveling is though, 2. enganging in Hunting, Fishing, or Sporting Activity, or 3. (In the case of Handguns) is a Holder of a Valid Concealed Handgun Permit and is carrying said Handgun Concealed.

    In esssecence... do not carry a Knife, or Club at all. Do not carry a Handgun unless you have a Permit to do so and it is Concealed at all times.

    However, although a Person can not carry those things listed above, walking around with a Long Gun is simingly OK in Texas, as long as a Person does not go into any Place as listed under Texas Penal Code Sec. 46-03.

    You know... I have always heard Texas is the 'Lone-Star' State and such, Pro-Gun and all..., but after reading Texas Law concerning Firearms needless to say I am stunned by how strict Texas really is about these things, in a sense.

    Can somebody explain to me what happened to make Texas this way? I know one thing for sure, if Iever come to Texas I willmake a point of it to be 'traveling'... whatever that is.



  22. #22
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    Chapter 46 of the Texas Penal Code was dusted off followingthe 1963 JFK assassination and increasingly asserted "to prevent crime" pretty much selectively.

    46.02 ( unlawful handgun carry provision) was gradually extended to apply to what one might call honest, law-abiding citizens concerned for their safety due to increased crime during the 1970's & 1980's . Many, many - A LOT actually- of Texans simply carried concealed ( since carry of a handgun was technically illegal)as a Texas remedy for bad law. Texans thought they had solved the problem of 46.02 with the passage of the concealed handgun legislation in 1995- thank you very much Gov. George W. Bush.

    Most of the contemporary "jurisprudence" on this issue is extracted from the CHL provisions, or at least has developed from thenotion that in order to carry a handgun you need a CHL.- leaving the option of open carry unavailable . I just have to add that the Texas handgun issueis not a simple as it might be in a smaller state. Texas is a big state with diverse cultural attitudes.Depending upon the geographical areain Texas- the display of a holstered handgun wouldprobably result in less attention than it would in most of the "green OC states". That having been said - Texas is well on it's way to becoming another Kalifornia.

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    Rush Creek... thank you for your insightful article.

    I am still shocked and surprised that Texas Firearms Laws, yes... Texas of all places, are stricter than many other States in some respects.

    Hopefully, Texans will have the oppurtunity to convience the State Legislature to revamp these Laws to conform with diverse attitudes that many Texans share with the respect to Firearms- as you confirmed in your article.

    I just can not believe that one can not Open Carry a Handgun in, say...Dallas or Fort Worth-perhaps even Houston, but, Open Carry of a Rifle is OK.

    However, I do seem to hear a lot about Gang related Violence in Texas, around the bourder area, and also about inner-City problems. Needless to say though, many areas of the County have this problem, in one fashion or another.

    Nevertheless, this is not typical, and in fact, it probably is a far-cry from many normal Texans who are upstanding Adult Law-abiding Citizens.

    It is a shame the actions of a select few ruin it for everyone else.

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    Open Carry in Texas realy isnt enforced in most rural areas except where drug dealers operate FREELY , in those areas the police are as likely to be in the confidance of the Druggies and Coyotes , as not .

    Doubt me , check on any of the counties along the Rio Grande river for a Sherrif arrested and convicted of criminal Malfeasance and or conspiracy., Brigido Marmalejo, of hidalgo county is only one of a few dozen ., and yet i used to ride my dirt bike hunting wearing a shoulder holster and a belt holster in plain site,. as well as carrying two shotguns in front fork Scabbards,hunting license on my shirt back.

    the most desolate place on the face of the earth is a houston , or dallas freeway , when you break down at night. those cities have more criminals per block , than a lot of counties have people. , and yet according to the law ., i cannot carry a defensive weapon on my person as i get out to change a flat., can any of you say DUHH?.,

    my best friend (a Police officer ) was on his way home ,had a flat and was changing it , when he head something under his hood (up to get the jack out)and said "hey" , the fellow answering said " thats allright buddy you can have the tires ,we just want the battery" he arrested both parties and held them for ON DUTY officers .

    if i did this i would be guilty of brandishing a firearm. according to austin . and a good many "law abiding" drunk drivers.

    get off it , it is our right to defend ourselves ,no matter what austin says (they still allow this)"how Barbaric" ,, LMAO yeah i'll be barbaric , all the way to my rig , and probably wont see any law enforcement along the way , while carrying enough cash to fuel my pick-up and feed me for a month , several hundred dollars , and i'm safe .

    why? because cops in rural counties dont ask if you are carrying , they expect it.

    cops in civil areas , shouldnt ask (are they Stupid?) my tags are from Nacogdoches county , I'm in south Texas , of course i have money, a nice vehicle and am alive after coming through houston at two a.m. , that in Itself can be a hurdle.

    we must stop the argueing , and get behind one or anotherof the current petitions to make open carry legal again in Texas , the criminals have taken over ,, and the only way to get Texas back is to not be intimidated by career Criminals , and not letting them get away to jail , where they can eat and be protected till they get out again to bother someone else.

    DRILLER



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    The Texas Constitution's grant to the Legislatureof "...power to regulate the wearing of arms with a view to prevent crime" would seem to logically address the issue of concealed arms, however Texas statutory law makes no reference to the concealed carry of handguns in TPC 46.02.

    Were it not for the enactment of the Texas concealed handgun license law in 1995 -current Texas handgun law would be clearly unconstitutional. Upon further reflection the RIGHT TO KEEP & BEAR ARMS referred to in the U.S. and Texas Bill of Rights cannot be held hostage toeither State or federal license. Licensed activities are notRIGHTS bydefinition, and RIGHTS by definitionare not subject to license.

    So WHAT exactly does the Texas Constitution refer to concerning WEARING OF ARMS ?The Texas Constitution is certainly not refering to the wearing of a handgun generally - because that would be a ridiculous contradiction of " The right of every person to keep and bear arms in defense of his (her) self". I'm going toengage in a great leap of logic and conclude that this "power to regulate the wearing of arms" is intended toprovide the Legislature the discretion to REGULATE (not prohibit) the wearing of arms in courtrooms, jail visitation areas, perhaps even banks, hospitals, schools, and any other location where the Legislature mayREASONABLY determinethat public safetyor the State crime prevention concern outweighs the free UNREGULATED exercise of this RIGHT.

    It does not necessarily follow that the Legislature SHOULD regulate the wearing of armsat all such locations,only that it MAY regulate - within the parameters of representativepolitical discretion. For example, such legislative discretion may only extend to previously convicted bank robberswho have completed their sentences being prohibited from wearing their handguns while INSIDE BANKS, or that all other bank customers must wear their handgun openly when in a bank,or REGULATING the concealed wearing of handguns in general. The Texas Legislature for some reason has never exercised it's regulatory power to GENERALLY regulate concealed wearing of firearmsprior to 1995- although I suspect that was the original intent of 46.02 based on apresumption that a handgun most probably would or could be concealed.

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