Texas is the horse to watch now that it is McDonald incorporation post-time

rushcreek2 · Jul 1, 2010

Let me just clarify one thing so that we don't have to breath into a paper bag while pondering the Brady Bunch's dribble about whether or not the 2A protected right to keep & bear (fire)arms for self defense "in case of confrontation" extends beyond the threshold of one's home. IT DOES (subject to reasonable restrictions-not a blanket prohibition augmented by grants of exception)

A recent comment that I read on this forum expressed the proposition quite well.

.......(to paraphrase)Since when did the free exercise of civil rights become confined to the home?

Section 46.02 of the Texas Penal Code can now be CORRECTLY interpreted by Texas courts to apply to the unlawful carry of cited weapons with criminal purpose and intent. There presently is NO TEXAS LAW CRIMINALIZING THE CONCEALED CARRY OF ANY WEAPON. The carry of a handgun (unconcealed) is now protected under federal law, subject only to federal, state, or state allowed municipal restrictions regarding possession in specified locations. The section 46.035 restriction upon carrying a handgun in plain view also must be predicated upon evidence of some otherwise statutorially defined criminal conduct.

The burden of proof now rests upon Texas law enforcement to enforce Chapter 46 restrictions by showing either evidence of criminal conduct, criminal intent , establish that possession was by a prohibited person, involved a statutorially defined dangerous weapon, or that posssession occurred on statutorially restricted premises. Texas restrictions on the constitutionally protected right to keep & bear arms have always rested upon a "to prevent crime" predicate.

This is MY READING of McDonald and existing Texas laws. I predict that the "criminal intent" test will
ultimately prevail in Texas. The tide has most assuredly turned.

ldcarson · Jul 2, 2010

I agree the tide has turned, but......4 judges voted against it..we better pray that 1 of the 5 doesn't die on us or this could easily be changed and reversed. I would have like to see a 9to 0 or even a 7-3 vote in favor....As for Texas, I agree with you, now we just need to get the language drafted accordingly and up for signature, unless of course the courts would adopt your reasoning....

rodbender · Jul 2, 2010

Perhaps we should all write a letter to the Texas AG to see what his position on it is. I mean a seperate letter from each of us. Not sure he'll answer but it may give him something to consider.

botheyesonyou · Jul 2, 2010

Rushcreek,
We need to zoom out to view the bigger picture. First we must agree that a Right is inherent in you and cannot be given to you, nor taken from you, nor have certain restrictions placed on it by any man or government. A privliege or permit, the polar opposite of a right, can be granted to you as well as taken away.

When I read the Texas Constitution Article 1 Section 23, I read an oxymoron. Every citizen shall have the RIGHT to keep and bear arms in defense of himself or of the State, but the Legislature shall have the power, by law, to REGULATE the wearing of arms, with a view to prevent crime.

If you follow simple ladder logic, you'll see that this sentence is conflicted.

"To prevent crime" is irrelevant in light of the fact that we have and continue to allow the Texas legislature to operate in such a way that they blatently run over our rights.

ldcarson,

If you are looking to 9 human beings to interpret what you KNOW to be true, why even have your own logical thought? The governement has no business telling me or you what the Constitution says. Look at it this way, I'm against the Health Care law 300%. The governement has NO business telling me how to handle my healthcare. They also have NO business telling me telling me what my rights mean. By simple principle, I cannot run FROM the government when they tell me I have to have healthcare, and then run TO them when they say everybody can have guns. Both are none of their business.

rodbender,

In the past I would have agreed with you. Not anymore. Writing letters is now for the birds. You would be better served by spending your time to educate fence riding people. Especially the ones who say bass ackwards things like "I got my CHL(permit) to protect my second ammendment RIGHT."

I think Michael Badnarik says it best. You knew as a child that mom was a push over and you could get by with murder. As soon as dad's name was mentioned, your behavior changed. HE WASN"T EVEN PRESENT but it straightened you up. WHY? Because dad was a credible threat to the safety of your a$$. You know he could and would tan you hide, but he didn't even have to get to that point before you straightened up. The key to this is CREDIBLE THREAT. With something like 20 million people in Texas, what is 5000 people at a Tea Party rally? What it is not is a credible threat. Get a million and you might get a yawn from them. Get a third and we might be able to make some changes. In the beginning the Tea Party couldn't get traction and look at the numbers they had. There are maybe a handful of OCers in each big city? We have a TON of work to do. All of this involves getting up and out of the chair that you're sitting in. Please don't take me as talking down to you..I'm just trying to get your attention while it still matters.

Read and UNDERSTAND this quote:

"If you will not fight for right when you can easily win without bloodshed; if you will not fight when your victory will be sure and not too costly; you may come to the moment when you will have to fight with all odds against you and only a precarious chance of survival. There may be even a worse fate. You may have to fight when here is no hope of victory, because it is better to perish than to live as slaves."

-Winston Churchill

rodbender · Jul 2, 2010

botheyesonyou said:
rodbender,

In the past I would have agreed with you. Not anymore. Writing letters is now for the birds. You would be better served by spending your time to educate fence riding people. Especially the ones who say bass ackwards things like "I got my CHL(permit) to protect my second ammendment RIGHT."

I think Michael Badnarik says it best. You knew as a child that mom was a push over and you could get by with murder. As soon as dad's name was mentioned, your behavior changed. HE WASN"T EVEN PRESENT but it straightened you up. WHY? Because dad was a credible threat to the safety of your a$$. You know he could and would tan you hide, but he didn't even have to get to that point before you straightened up. The key to this is CREDIBLE THREAT. With something like 20 million people in Texas, what is 5000 people at a Tea Party rally? What it is not is a credible threat. Get a million and you might get a yawn from them. Get a third and we might be able to make some changes. In the beginning the Tea Party couldn't get traction and look at the numbers they had. There are maybe a handful of OCers in each big city? We have a TON of work to do. All of this involves getting up and out of the chair that you're sitting in. Please don't take me as talking down to you..I'm just trying to get your attention while it still matters.

I happen to agree that getting out to show our numbers is essential to say the least. But I also think that writing letters, on paper, not an email or a phone call is the best start because a letter takes up space. An email or phone call does not. When enough space is taken up with things they can't just delete, or hang up and it's gone, over, it will get more attention. I think we should start with the letter, and progress from there. It's just a simple question: In light of the McDonald decision, is open carry now legal in Texas?

Jack House · Jul 3, 2010

I am unsure how McDonald would apply to Texas in such a way as to make open carry legal by default, as has been suggested. Could someone please explain it to me?

rodbender · Jul 3, 2010

Jack House said:
I am unsure how McDonald would apply to Texas in such a way as to make open carry legal by default, as has been suggested. Could someone please explain it to me?

Probably not.

rushcreek2 · Jul 3, 2010

Jack House said:
I am unsure how McDonald would apply to Texas in such a way as to make open carry legal by default, as has been suggested. Could someone please explain it to me?

I'll take a crack at it.

Federal case law jurisprudence has followed the generally recognized precedent that the mere possession, wearing, carrying of a firearm in public, in and of itself, does not support probable cause for law enforcement to articulate reasonable suspicion of criminal activity. This frequent holding by the federal courts presumes that no federal, or state sanctioned local law otherwise CONSTITUTIONALLY restricts the possession, carrying, or wearing. I do not have the citations at hand, but the case law has been previously cited and linked to on this forum. So please consider my expanation with the qualification that I am not presenting a legal brief at this time - OK.

Further the SCOTUS has in Heller and McDonald made at least ONE THING perfectly clear. HANDGUNS are not excludable from the now federally recognized and protected right to keep and bear arms. Texas 46.02 and 46.035 address CARRY AT ALL and nonconcealed (OPEN) carry of a handgun by licensees respectively under Texas law. A blanket criminalization under Texas statute of possession, carrying, or wearing a handgun (46.02) that is limited only by a few excepted allowances seems to me to be in violation of the now incorporated 2nd Amendment, as well as the Texas Constitutional protection of the RTKBA. This legal construction is inside-out , upside-down, and @#$ backwards.

Any restriction IN TEXAS must apply some concern as to location, the status of a person's right to ship, transport, posses, or receive firearms under federal and state law, and specify (under provision of the Texas Constitution) in WHAT MANNER, the arm (side-arm/handgun in this case)is REGULATED to be worn (to prevent crime). Texas has to choose to allow either otherwise lawful open carry combined with regulated concealed carry, or (preferably) allow for constitutional carry ( concealed or in plain view) subject only to other statutory restrictions(previous offenders, specified restricted locations) .

A possible response to the REGULATION of how a handgun may be worn provided in 46.035 (by a person licensed to carry a handgun concealed), may rest in the fact that under Texas law the concealed carry of a handgun is not explicitly restricted , or prohibited, although it may be construed historically, given Texas court arguments, and opinions over the last 138 years that suggest CONCEALABILITY is at the very heart of 46.02.
Given that concealed carry is not criminalized under Texas law, the Texas concealed handgun license is actually a HANDGUN LICENSE that requires any handgun worn to be concealed. Unlike Colorado for instance that plainly criminalizes concealed carrying statutorially and excepts the practice constitutionally from the RTKBA. Colorado considers the wearing of a handgun in plain view to be the exercise of a constitutionally protected right. Texas' peculiar handgun law is now nullified under incorporation at least as it pertains to criminalizing otherwise lawful handgun wearing without a license . Prior to incorporation Texas could have restricted the right just as thoroughly as Illinois, if political reality so allowed. Reflecting upon that thought further, Texas wasn't actually very far behind Chicago statutorially prior to 1995, when the shall issue concealed carry law was passed.

If I were to approach the Sheriff in one particularly Texas county where I formally resided with the proposition : "Will I be arrested and charged under 46.02 or 46.035 if I walk past the courthouse wearing my holstered handgun in plain view ?" I can guarantee the response would be something like: "Are you planning on robbing the bank? or did you park your car in a no-parking zone?"

Common sense should suggest the question be asked - "Where is the crime?" or "Has this person threatened to commit a crime?"

This is why Texas law 46.02 needs clarification and/or amendment - post-McDonald.

... "the power to regulate the wearing of arms WITH A VIEW TO PREVENT CRIME" .... can no longer be stretched into the power to BAN mere possession, or wearing of a hangun except in the case of certain State allowed circumstances - as is the situation presently in Texas . 46.02 MUST BE CONSTRUED TO LOOK BEYOND THE LAWFUL EXERCISE OF THE RTKBA for evidence of actual criminal conduct, or criminal purpose, and intent to engage in criminal conduct.

Governor Perry must be persuaded to request that Attorney General Abbott review this issue and clarify 46.02/46.035 (for starters) in respect to federal and State constitutionality.

botheyesonyou · Jul 3, 2010

All sounds logical and makes sense when looking at this subject after surrendering your right. An example: The CHL. You get your permit (permission) and renew it a few times. Then, hypothetically, you go to renew it the fourth time only to be told "sorry, we're not issuing renewals at this time." Question: Are you screwed at that particular renewal time, or did you screw yourself when you knowingly and willingly entered into a contract with the State which gave them the power to Regulate your Right?! Stop looking to the courts to define YOUR rights and what you know to be true.

The Founding Fathers said "We hold these truths to be SELF EVIDENT." They didn't say we hold these truths to be obvious or common sense or handed down by the courts.

I too used to be in lock step with your reasoning... Then I was unlawfully arrested for legally possessing a pistol...I was even stupid enough to cooperate willingly with the officers. More on that later.

Anyhow, there is a video called "Never talk to the police." Most people here know about it. There is another video that is just as important, which involves the Constitution. PLEASE watch it.

http://www.constitutionpreservation.org/media-archive/constitution-class click on Part 1.

Rogue Warrior · Jul 5, 2010

Yes, but..

Although I would very much like to see someone take on the Texas law, I do not believe that it is likely to happen. TSRA has no plans to press for open carry in the legislature. In fact, i would describe TSRA as hostile toward open carry. NRA is probably a little bit more inclined to support open carry, but is, I believe, not going to go out of their way to do so. If you happen to have a bill sponsor and a goodly number of co-authors, they might get on board, but I do not see NRA actively campaigning for it either in the legislature or the courts. That leaves GOA, which I doubt has the resources to do so, and SAF which has never shown much interest in the state of affairs in Texas.

The state Attorney General is not in a position to do much, if anything, even if he were inclined to do so, as his duty is to defend the state's statutes when or if challenged in court.

The definitive case on open carry under the Texas Constitution involved a many walking down the street in Austin with a variety of edged weapons openly displayed. When asked by the police he responded that he was carrying them just in case he needed them. Unfortunately, he represented himself at his trial and upon appeal. He did not prevail at either proceeding. The Texas Supreme Court has historically declined to apply principles without the legislature. For example, the Texas Declaration of Independence and each Constitution since proclaimed that "all political power is inherent in the people" as do the constitutions of a number of states, including Arizona. When pressed on the issue of Initiative and Referendum, the court opined that it is incumbent upon the legislature to enact, by statue, procedures for implementation of this right. You can guess what the legislature has done. So much for fundamental rights.

"One more thing"...the open carry map shows Texas as being open carry friendly. Although it is true that long guns may be carried openly in many areas, I most certainly would not describe Texas as open carry friendly. One has to wonder just what the basis of that opinion may be. I invite opencarry.org to come down to Texas and see just how friendly the state and/or legislature is to open carry. They just might change their evaluation and opinion.

wrightme · Jul 5, 2010

Have you contacted them to ask?
Have you contacted the TX NRA state org (TSRA)?
Typically, unless you work with them, they do not "show their hand" prior to the session.

Rogue Warrior said:
Although I would very much like to see someone take on the Texas law, I do not believe that it is likely to happen. TSRA has no plans to press for open carry in the legislature. In fact, i would describe TSRA as hostile toward open carry. NRA is probably a little bit more inclined to support open carry, but is, I believe, not going to go out of their way to do so. If you happen to have a bill sponsor and a goodly number of co-authors, they might get on board, but I do not see NRA actively campaigning for it either in the legislature or the courts. That leaves GOA, which I doubt has the resources to do so, and SAF which has never shown much interest in the state of affairs in Texas.

The state Attorney General is not in a position to do much, if anything, even if he were inclined to do so, as his duty is to defend the state's statutes when or if challenged in court.

The definitive case on open carry under the Texas Constitution involved a many walking down the street in Austin with a variety of edged weapons openly displayed. When asked by the police he responded that he was carrying them just in case he needed them. Unfortunately, he represented himself at his trial and upon appeal. He did not prevail at either proceeding. The Texas Supreme Court has historically declined to apply principles without the legislature. For example, the Texas Declaration of Independence and each Constitution since proclaimed that "all political power is inherent in the people" as do the constitutions of a number of states, including Arizona. When pressed on the issue of Initiative and Referendum, the court opined that it is incumbent upon the legislature to enact, by statue, procedures for implementation of this right. You can guess what the legislature has done. So much for fundamental rights.

"One more thing"...the open carry map shows Texas as being open carry friendly. Although it is true that long guns may be carried openly in many areas, I most certainly would not describe Texas as open carry friendly. One has to wonder just what the basis of that opinion may be. I invite opencarry.org to come down to Texas and see just how friendly the state and/or legislature is to open carry. They just might change their evaluation and opinion.

Jack House · Jul 5, 2010

Rogue Warrior said:
"One more thing"...the open carry map shows Texas as being open carry friendly. Although it is true that long guns may be carried openly in many areas, I most certainly would not describe Texas as open carry friendly. One has to wonder just what the basis of that opinion may be. I invite opencarry.org to come down to Texas and see just how friendly the state and/or legislature is to open carry. They just might change their evaluation and opinion.

Which map is that?

DKSuddeth · Jul 6, 2010

As far as 46.02 goes, I asked a question of the guy that wrote the brief for Gura in McDonald how the McD decision would affect 46.02 and he flat out said it wouldn't. It would have to be challenged first, so unless the legislature actually does something about it, someone will have to be a test case.

botheyesonyou · Jul 6, 2010

exactly why I take the stance I do. Some of my gun toting, gun store employee friends couldn't believe that I wasn't jumping for joy like they were about the courts decision. They don't realize is doesn't mean horse squeeze. Then again, I can't get them to back OC...even though their gun sales would improve. Sometimes you got to agree to disagree.

rushcreek2 · Jul 6, 2010

DKSuddeth said:
As far as 46.02 goes, I asked a question of the guy that wrote the brief for Gura in McDonald how the McD decision would affect 46.02 and he flat out said it wouldn't. It would have to be challenged first, so unless the legislature actually does something about it, someone will have to be a test case.

There should be a test case- once the dust has settled and some degree of logical legal equilibrium has been established. Whether or not the Legislature addresses this problem - it isn't going away. An Attorney General opinion citing Texas' "new" right aimed at providing guidance to State law enforcement would surely help to motivate the Legislature to address this problem. I know "some folks" don't believe there is a problem - IF YOU HAVE A CHL. Unfortunately that view point misses the "RIGHT" point all together.

The combined effect on Texas 46.02 of both Heller and McDonald is that at least two elements of scrutiny are now on the table. Prior to Heller, Texas could argue that the State's legislative "......power to regulate the wearing......" OF HANDGUNS effectively EXCLUDED handguns from the right to keep and bear arms protected under the Texas Constitution. Post Heller/McDonald only the CONCEALED carry of a handgun is excludable.

This approach is similar to the Colorado Constitution's exclusion BY EXCEPTION of CONCEALED carry from that State's protection of the RTKBA. Had Heller/McDonald ruled restrictions upon concealed carry to be unconstitutional - Colorado would have a problem with its concealed handgun restriction somewhat like Texas now has with the APPLICATION OF its 46.02 restriction.

I HOPE after the November election Governor Perry may be receptive to the idea of requesting that the Attorney General review this problem and consider issuing a law enforcement advisory opinion to the effect that the otherwise peaceful and lawful wearing of a holstered handgun in plain view, just like rifles, or shotguns is the exercise of a protected civil right, and is subject only to reasonable statutory , and common law perogative restrictions (private premises control). The AG opinion may include a finding that 46.02 and 46.035 enforcement should reflect Texas culture, traditions and customs by being properly directed towards a focus upon crime prevention.

If the "quintessential" (NONCONCEALED) handgun can no longer be constitutionally excluded from the now combined Texas/federal right, nothing prevents the peaceful and otherwise lawful carry of a holstered handgun in plain view in Texas - other than 46.02 which as presently worded seems to reflect the same exclussionary approach as the D.C. and Chicago handgun bans.

I see no other viable course for the Texas Legislature in response to Heller/McDonald other than adopting the CONCEALED handgun approach of state's like Colorado. This would require amending 46.02 to insert "concealed for criminal purpose" in regards to the listed weapons. Also amend 46.035 to remove the sections adddressing failure to conceal by a licensee, since 42.01 adequately address disorderly conduct issues.

kwikrnu · Jul 6, 2010

Rogue Warrior said:
The definitive case on open carry under the Texas Constitution involved a many walking down the street in Austin with a variety of edged weapons openly displayed. When asked by the police he responded that he was carrying them just in case he needed them. Unfortunately, he represented himself at his trial and upon appeal. He did not prevail at either proceeding.

I'm guessing at that time it was not a recognized civil right to bear arms.

I'm always interested in TX law because your Constitution is the same as that in Tennessee. Our Statute tca 39-17-1307 bans the carry of all handguns. The permit is only a defense against prosecution. I have a case against the State of Tennessee challenging the this ban on weapons. I'm pro se.

ldcarson · Jul 13, 2010

Huh? You do know there are three branches to the government and the the judicial branch does in fact have the right to take cases as the come forward and make a finding/determination if they have violated the very constitution/bill of rights that is the charter for our great nation. The 2A is a right, healthcare is not in the constitution or the bill of rights, that would be for the court to determine, which I think they will strike down. Our legislative branch makes the laws, our Judicial branch tries the laws in court and the executive branch enforces them. Our government has every right to "tell us what the constitution says", until it is desolved or until a different interpretation is found by a majority of the SCOTUS judges. Thats the job of the judicial, its part of our government, it was setup that way by the founding fathers. Everything from drilling oil to 2a rights to healthcare can and will be challenged in court, sometimes we win and other times we don't...And believe me there are plenty of others who read and believe alot differently than you and I do which means its important to have independent thought on the matter. Just because we see it one way doesn't make it so to everyone else. One cannot say the government has no business telling us about the law of the land when we the people have empowered our three branches to do that very thing...We may believe what we think but we aren't the final say on the matter.

I do hope we can get open carry in Texas, I for one would love to able too, its justtoo hot for CC right now.

botheyesonyou said:
ldcarson,

If you are looking to 9 human beings to interpret what you KNOW to be true, why even have your own logical thought? The governement has no business telling me or y
ou what the Constitution says. Look at it this way, I'm against the Health Care law 300%. The governement has NO business telling me how to handle my healthcare. They also have NO business telling me telling me what my rights mean. By simple principle, I cannot run FROM the government when they tell me I have to have healthcare, and then run TO them when they say everybody can have guns. Both are none of their business.

rodbender · Jul 13, 2010

ldcarson said:
Our government has every right to "tell us what the constitution says", until it is desolved or until a different interpretation is found by a majority of the SCOTUS judges. Thats the job of the judicial, its part of our government, it was setup that way by the founding fathers.

botheyesonyou said:

The government has NO right to tell us what the Constitution says. It is not the job of the judicial branch to interpret the Constitution, but to determine if laws are Constitutional. The Constitution was written in plain clear language so as to be understood by the farmer and the scholar alike. No interpretation is needed, only an understanding as to what the framers meant at the time of the writing. That is easy to find in the Federalist Papers, and most importantly in the notes taken during the convention, along with the ratification debates of the several states.

Click to expand...

Jack House · Jul 13, 2010

Broken quotes make posts hard to read.

ldcarson · Jul 13, 2010

ldcarson said:
Huh? You do know there are three branches to the government and the the judicial branch does in fact have the right to take cases as the come forward and make a finding/determination if they have violated the very constitution/bill of rights that is the charter for our great nation. The 2A is a right, healthcare is not in the constitution or the bill of rights, that would be for the court to determine, which I think they will strike down. Our legislative branch makes the laws, our Judicial branch tries the laws in court and the executive branch enforces them. Our government has every right to "tell us what the constitution says", until it is desolved or until a different interpretation is found by a majority of the SCOTUS judges. Thats the job of the judicial, its part of our government, it was setup that way by the founding fathers. Everything from drilling oil to 2a rights to healthcare can and will be challenged in court, sometimes we win and other times we don't...And believe me there are plenty of others who read and believe alot differently than you and I do which means its important to have independent thought on the matter. Just because we see it one way doesn't make it so to everyone else. One cannot say the government has no business telling us about the law of the land when we the people have empowered our three branches to do that very thing...We may believe what we think but we aren't the final say on the matter.

I do hope we can get open carry in Texas, I for one would love to able too, its justtoo hot for CC right now.

botheyesonyou said:

ldcarson,

If you are looking to 9 human beings to interpret what you KNOW to be true, why even have your own logical thought? The governement has no business telling me or y
ou what the Constitution says. Look at it this way, I'm against the Health Care law 300%. The governement has NO business telling me how to handle my healthcare. They also have NO business telling me telling me what my rights mean. By simple principle, I cannot run FROM the government when they tell me I have to have healthcare, and then run TO them when they say everybody can have guns. Both are none of their business.

Click to expand...

rodbender said:

ldcarson said:

Our government has every right to "tell us what the constitution says", until it is desolved or until a different interpretation is found by a majority of the SCOTUS judges. Thats the job of the judicial, its part of our government, it was setup that way by the founding fathers.

botheyesonyou said:

The government has NO right to tell us what the Constitution says. It is not the job of the judicial branch to interpret the Constitution, but to determine if laws are Constitutional. The Constitution was written in plain clear language so as to be understood by the farmer and the scholar alike. No interpretation is needed, only an understanding as to what the framers meant at the time of the writing. That is easy to find in the Federalist Papers, and most importantly in the notes taken during the convention, along with the ratification debates of the several states.

Click to expand...

Sorry for the broken quotes...not sure how that happened???

I think that is what I said, however by your reasoning...why have a judicial branch at all since no interpretation is needed, no preceedence is needed...by the way, the JUDICIAL Branch is part of the GOVERMENT. Just as the IRS has the right to take your money, just as teh congress has the right to pass laws that you and i follow...so what am I missing here?

Click to expand...

Click to expand...

Texas is the horse to watch now that it is McDonald incorporation post-time

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