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Thread: Antique Carry Case Law

  1. #1
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    Although the Texas Penal code exempts antique firearms from being firearms, doing a search of this forum and elsewhere I have come across people saying that the courts always ignore this exception when the antique firearm is carried upon the person. For example:

    http://docs.google.com/viewer?a=v&q=...eyPqnD9S3BdQ0Q

    Several defendants have sought to defend weapons cases or other cases involving use of
    weapons by arguing that the weapons was made before 1899, therefore are antiques. The
    courts have rejected this approach saying in effect that the antique or curio exception
    applies to treating the items as antiques, not to using them as weapons.
    However, I cannot easily find any such court cases, and the only case I could find on the internet involved someone who failed to bring up the exception in the first trial and tried (and failed) later to find the courts in error for not instructing the jury to consider the antique provision. ( http://www.2ndcoa.courts.state.tx.us...pinionID=17423 )

    Does anyone know the name of a case that involves a court actually saying that Antique firearms cease to be antique when carried?

  2. #2
    Founder's Club Member rodbender's Avatar
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    I know of no case that says what you are asking.

    However, the first link you provide is outdated. It is now legal to carry ahandgun in your vehicle so long as it remains concealed. It can be in a glove box, console, or even on the seat covered with a towel or other object, as long as you can not distiquish that a handgun isunder it. No permit required.

    IANAL, this is my opinion only.
    The thing about common sense is....it ain't too common.
    Will Rogers

  3. #3
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    I remember reading a blurb of a case where the courts held that a pre-1899 handgun was a firearm for the purposes of 46.02. I've been trying to find that opinion since then(about 2 years now).



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    Thumbs up Some Case law for Antique Carry

    Antique-Carry seems to still be valid.

    However, it isn't a negating defense, in other words the prosecution does not have to address it unless the defense brings it up. The burden of proof that a particular weapon is an antique or antique replica is upon the defendant. That means arrest for 46.02/46.03 can occur but should be dismissed on arraignment or trial if the defendant has sufficient proof.


    Here's the supporting cases I have found so far:

    Jackson vs State 575 S.W.2d 567 (1979)
    • Prosecutor not required to prove short-barrel firearm was antique or curio


    Cantu vs State 802S.W.2d 1 (1990)
    • Defendant has burden of proof to show weapon falls within definition of Antique
    • Altering of an original antique to give an illegal characteristic not originally designed or 'integral' voids its status as an antique
    • Attempt to use affirmative defense of dealing with weapon solely as curio or antique requires establishing such defense by preponderance of the evidence.


    Kimberly Denise Lewis McIlroy vs State 188 S.W.3d 789 (2006)
    • Defendent not entitled to defensive issue not brought up at trial


    In each of these cases the defendants were unsuccessful in their bids to use antique wording in their cases. Most because they failed to bring it up and several others because they in fact did not have an antique and 1 because of peculiar(to me) interpretation of integral holding that only unmodified antiques were within the definition. To me this seems unconstitutionally vague (Is restoration modification? Repair?, Painting?, replacement parts?), and contradicts the federal statute it was modeled on. The actual weapon involved wasn't discussed beyond being a sawed off shotgun that *may* have been manufactured before 1899. The defense however did not show that the modification occurred before 1899 as well. The modifications mentioned was the barrel shortening, stock shortening, and trigger guard removal. Since they *may* have occurred after 1899 the weapon was ruled a firearm. (Cantu vs State)

    All the cases discuss establishing that the weapon fits the definition of Antique ( and replica) falls on the defendant. The State is under no obligation to address that issue if the defense does not, therefore with ineffective counsel it would be completely possible for prosecutor to establish a conviction for someone legitimately carrying an antique or replica under 46.02/46.03.

    I am still looking for an affirmative/successful use of such a defense as all the opinions seem to assume such exists:
    ...one [opportunity for defense] furnishes the defendant with the chance to show that the weapon itself is an antique and, therefore , cannot be characterized as a firearm. Thus he cannot be charged with possession of a firearm since the gun is not a firearm. (Cantu vs State p3 )
    (Language in brackets inserted for context of post, see case for exact context)

  5. #5
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    Quote Originally Posted by DKSuddeth View Post
    I remember reading a blurb of a case where the courts held that a pre-1899 handgun was a firearm for the purposes of 46.02. I've been trying to find that opinion since then(about 2 years now).
    As far as I'm concerned, my 1911 is a repro of a more-than-100-year-old design. I wonder when they're gonna move the date up to those pistols...

  6. #6
    Founder's Club Member rodbender's Avatar
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    (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.

    http://www.statutes.legis.state.tx.u...E.46.htm#46.02

  7. #7
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    I have one I'll loan and will be a witness if someone wants to be the test case

    I have documentation from Smith and Wesson, the manufacturer, that my .38 Safety Hammerless was manufactured in 1891 (including the exact day it left the factory and to whom it was shipped). That edition was made from 1890 to 1898 so ALL are classified as antiques. Later editions of the same pistol, however are not and manufacturing continued until the 1940s.

    If someone has a good attorney and is determined to challenge any arrest or harassment in order to establish that the Legislature's intent -- to harmonize Texas law with federal law wherin all pre-1899 firearms are antiques & not subject to the usual restrictions -- is upheld and to establish this in precendent, please let me know. I'll gladly supply the documentation that I have to your attorney for evaluation. Since it came directly from the Smith & Wesson historian after researching company records, I believe the information supremely reliable.

    If you are interested, the pistol is pretty good shape and I shoot it on occasion. Everything still works just fine although the I'd like to get it refinished.

    SA-TX
    Last edited by SA-TX; 08-03-2010 at 07:00 PM.

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