Arguments for/against OC in Texas

Hey all! I had the opportunity to visit your fine state recently and though I was stuck with concealing, I enjoyed my visit. My trip also got me thinking: what are the reasons why OC is a no-no in Texas? (Aside from a few very limited exceptions of course.) Is it a remnant from the Jim Crow days, or does it have something to do with the emphasis Texas places on the rights of property owners? Though this reasoning I find to be unfounded, is OC illegal because some property owner would get nervous and run for his shotgun if he/she saw someone carrying a pistol? I would think that because of Texas' friendly and welcoming nature that most people wouldn't have a problem with it. Personally I would just like the option cause it gets too hot and humid to conceal comfortably. I would like to discuss what you think are the reasons for or against OC in Texas. Carry On

Just to start this off with a personal view.

There are no valid reasons - all are either excuse, fear or control, or a combination of each.

Understand that you are looking for specifics, but everytime a listen to the arguments against I go looking for a wall = :banghead:

acmariner99 said:

Hey all! I had the opportunity to visit your fine state recently and though I was stuck with concealing, I enjoyed my visit. My trip also got me thinking: what are the reasons why OC is a no-no in Texas? (Aside from a few very limited exceptions of course.) Is it a remnant from the Jim Crow days, or does it have something to do with the emphasis Texas places on the rights of property owners? Though this reasoning I find to be unfounded, is OC illegal because some property owner would get nervous and run for his shotgun if he/she saw someone carrying a pistol? I would think that because of Texas' friendly and welcoming nature that most people wouldn't have a problem with it. Personally I would just like the option cause it gets too hot and humid to conceal comfortably. I would like to discuss what you think are the reasons for or against OC in Texas. Carry On

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There law is likely unconstitutional. It basically criminalizes the carry of all handguns and the concealed carry with a permit is only a defense.
From what I understand the government can't use broad language to criminalize civil rights.
It's my belief that both oc and cc should be legal in Texas.

Some of the arguments are:

1. It's better if the criminals don't know who is carrying
2. You can't really license OC and only licensed individuals should be allowed to carry
3. If people saw someone walking around with a pistol, they would be frightened
4. You can't tell who the good guy and bad guys are
5. We don't like change(CHL works, don't fix what ain't broke)
6. Fears that 30.06 signs will start popping up more frequently

There are other excuses, but I can't think of them. I want open carry, but it's an uphill battle unfortunately. Many people, not myself, but others have already given up on the 2011 legislature.

There's not a specific reason OC is illegal in Texas. You just have to know the history of handgun control in Texas.

Since the time of Reconstruction, it was illegal in Texas to have a handgun on or about your person except on your own property or while traveling. When efforts began in the late 1980s to restore the right to carry, the focus was on concealed carry. And, that's what we wound up with in 1996.

Why? A combination of reasons, really. First, many people didn't even consider open carry, because they wanted to carry concealed. Others were afraid that being seen with guns in public would result in legislative backlash, so they made sure the law required concealment. Not to mention there was widespread ignorance that OC was illegal in Texas... everyone remembers seeing some old ranchers or cowboys openly carrying back in the day.

Jack House said:

Some of the arguments are:

1. It's better if the criminals don't know who is carrying
2. You can't really license OC and only licensed individuals should be allowed to carry
3. If people saw someone walking around with a pistol, they would be frightened
4. You can't tell who the good guy and bad guys are
5. We don't like change(CHL works, don't fix what ain't broke)
6. Fears that 30.06 signs will start popping up more frequently

There are other excuses, but I can't think of them. I want open carry, but it's an uphill battle unfortunately. Many people, not myself, but others have already given up on the 2011 legislature.

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Texas, Florida and Tennessee all have similar laws that make carry of a handgun illegal. If I'm successful in my lawsuit against the State someone there may pay attention.

Tennessee
39-17-1307. Unlawful carrying or possession of a weapon. —
(a) (1) A person commits an offense who carries with the intent to go armed a firearm, a knife with a blade length exceeding four inches (4²), or a club.

Florida
790.01 Carrying concealed weapons.--
(1) Except as provided in subsection (4), a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
790.053 Open carrying of weapons.--
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.

Texas
PC §46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits
an offense if the person intentionally, knowingly, or recklessly carries
on or about his or her person a handgun, illegal knife, or club if the
person is not:
(1) on the person's own premises or premises under the person's
control; or
(2) inside of or directly en route to a motor vehicle that is owned
by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly,
or recklessly carries on or about his or her person a handgun in a
motor vehicle that is owned by the person or under the person's
control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor
that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.

The common theme is handguns are illegal to carry for the purpose of self defense. Once it is determined that handgun carry cannot be made illegal in such a broad manner States will start to wake up. I pick on FL and TX because they gave us our handgun carry permit laws.

I won't try to cover the older historical reasons, but I *can* give some current history.

When CHL was introduced in Texas in 1995, the original statute let property owners ban concealed carry in their establishments with a pretty small, difficult to see, anti-gun sign. To ignore such a sign & get caught w. your firearm w/in a posted premises means the loss of your CHL and a criminal prosecution. With all of the media hype during the battle to initially pass CHL ("blood in the streets!"), these 'no firearm' signs popped up everywhere like mushrooms after a rainstorm.

In order to keep a CHL from being rendered useless by being denied the right to carry in so many places, the following legislative session in 1997 established new rules for what kind of signage was required before the weight of the law comes down on the CHL holder. Section 30.06 of the Tx law mandates that the sign has to be made of contrasting letters against the background, minimum 1" high letters, specific (lengthy) wording in both English and Spanish, placed on prominent display at all entrances. 30.06 is sometimes referred to as the 'big ugly sign law'. You'll see very few 30.06 signs around Texas, and in part because they're such an eyesore (by design).

People have gotten over the initial hysteria of concealed carry in Texas, because by and large CHL holders are very well behaved. So you can carry most everywhere (with some exceptions by statute, and the occasional 30.06 sign).

The big fear among the CHL community is that if OC passes, the same business owners that posted their property in 1995-1997 will go back to posting again, big ugly sign rule notwithstanding, if those scary OC pistols are out in plain sight. The 'out of sight, out of mind' situation will no longer be the case. So the CHL holders that have enjoyed a very wide latitude in where they can carry will find their territory restricted so that a subset of the 2A community can open carry.

Please note that I'm not opining on whether this fear is valid. I'm just 'splaining why there's some concern about pushing for OC right now. It's a topic which inflames a lot of passion w/in the Texas 2A community.

Another roadblock is one of priorities. The Texas legislature only meets for 135 days every 2 years. There's a limit to what all can be rammed through in a 4 month window. Right now, two other 2A topics of great interest are legalizing carry on college campuses, and preventing employers from banning employees from keeping a gun locked in their car during the workday. We'd hoped to get those two bills passed in 2009, but they died on the vine because an unrelated Dem/Republican conflict stalled the entire legislative session and nothing got accomplished.

There is concern that another such Dem/Rep conflict is brewing over an attempt to push AZ-style immigration laws. If that comes to pass, then campus carry & the parking lot bills will die again on the vine, and an OC effort will continue to wait in the wings for its turn on the legislative calendar.

Hope that helps,

RNH

rhenriksen said:

The big fear among the CHL community is that if OC passes, the same business owners that posted their property in 1995-1997 will go back to posting again, big ugly sign rule notwithstanding, if those scary OC pistols are out in plain sight. The 'out of sight, out of mind' situation will no longer be the case. So the CHL holders that have enjoyed a very wide latitude in where they can carry will find their territory restricted so that a subset of the 2A community can open carry.

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This is why you won't get open carry unless there is a lawsuit in TX, or possibly a State with similar laws or it is made clear by the US Supreme Court.

Texas constitution
“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.” Article 1, Section 23.

Tennessee constitution
“That the citizens of this State have a right to keep and to bear
arms for their common defense; but the Legislature shall have
power, by law, to regulate the wearing of arms with a view to
prevent crime.” -- Article 1, Section 26.

Florida constitution
“(a) The right of the people to keep and bear arms in defense of themselves
and of the lawful authority of the state shall not be infringed, except that
the manner of bearing arms may be regulated by law. (b) There shall be
a mandatory period of three days, excluding weekends and legal holidays,
between the purchase and delivery at retail of any handgun. For the purposes
of this section, “purchase” means the transfer of money or other valuable
consideration to the retailer, and “handgun” means a firearm capable of
being carried and used by one hand, such as a pistol or revolver. Holders of
a concealed weapon permit as prescribed in Florida law shall not be subject
to the provisions of this paragraph. (c) . . . anyone violating the provisions of
subsection (b) shall be guilty of a felony. (d) This restriction shall not apply
to a trade in of another handgun.” Article 1, Section 8.
The legislature of the State of Florida, in a declaration of policy
incorporated in its “Weapons and Firearms” statute, recognizes that adult
citizens of the state retain their constitutional right to keep and bear firearms
for hunting and sporting activities and for defense of self, family, home, and
business and as collectibles.

Art. I, Sec. 23 of the Texas Constitution was drafted during reconstruction after 13A,14A, and 15A were ratified. It was originally only enforced on freedmen (former slaves) but over time it became used on everyone. Brief history, but to the point.

Interesting Insights

I appreciate ya'lls insights on the matter. I for one would like to see OC become legal in Texas, but as a couple of the responders mentioned, it's not a priority and historically people have ignored the issue. (I would agree that Texas has bigger problems than legislating the open carrying firearms though.) It seems surprising though that the other southwest states -- especially Arizona developed with the culture of openly carrying firearms and Texas did not -- or conveniently forgot about it. I find it strange that the state that proudly proclaimed "Come and Take it" and demanded the Mexican Army come and disarm the people -- won't let its citizens carry arms in defense of themselves or the state in any manner they see fit.

acmariner99 said:

I appreciate ya'lls insights on the matter. I for one would like to see OC become legal in Texas, but as a couple of the responders mentioned, it's not a priority and historically people have ignored the issue. (I would agree that Texas has bigger problems than legislating the open carrying firearms though.) It seems surprising though that the other southwest states -- especially Arizona developed with the culture of openly carrying firearms and Texas did not -- or conveniently forgot about it. I find it strange that the state that proudly proclaimed "Come and Take it" and demanded the Mexican Army come and disarm the people -- won't let its citizens carry arms in defense of themselves or the state in any manner they see fit.

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I think a lot has to do with the Constitutions of the States. If the citizens give the Legislatures power over them they will abuse it. IN FL, TX, and TN the constitutions are very similar in that they allow "regulation to prevent crime".

Take a look at the AZ constitution

“The right of the individual citizen to bear arms in defense
of himself or the State shall not be impaired, but nothing
in this section shall be construed as authorizing individuals
or corporations to organize, maintain, or employ an armed
body of men.” Article 2, Section 26.


They don't have onerous restrictions because they did not allow their Legislatures to change their Constitution. Once we start on the path of allowing government to control us they will.

(a-1) A person commits an offense if the person intentionally, knowingly,
or recklessly carries on or about his or her person a handgun in a
motor vehicle that is owned by the person or under the person's
control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor
that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.


This portion of Section 46.02 at least appears to be constitutionally compliant ( ..."to PREVENT CRIME.")-except for the in vehicular plain view provision. I guess that comes under the carrying on or about the person version of "wearing".

There seems to be an accepted notion within the Texas body politic that ANY PUBLIC display of a handgun constitutes presumptive brandishing, regardless of the intent and purpose for carrying, and that MWAG calls will be ringing the local PD phones of the hooks. This political mind-set must be recognized, appreciated, and addressed in any effort to pursuade the Texas Legislature to consider legislation RELAXING REGULATION of the wearing of handguns. I am convinced that the most politically viable, and legislatively "digestable" proposal is going to be some provision allowing for regulated licensed OC - like in Georgia.

The presumption is that people in society are prone to behave childishly and delinquently. Unfortunately, there is ample evidence supporting this conclusion.
The premise is that as long as State regulation requires general public concealment of handguns , there will be LESS opportunity to employ the handgun in an unjustifiably threatening manner.

There was a 2007 shooting case in Dallas where the court considered the fact that the shooter went armed(with a handgun) to engage in a ( hostile) "discussion" with the victim. This fact was held by the court to constitute a violation of 46.02 - apparently under the "intentionally, knowingly, or recklessly" caveat.
I think this Dallas case actually offers some interesting incite into application standards under 46.02. The court's perspective strongly indicates that "intentionally, knowingly, or recklessly" is a reference to some criminal intent and purpose. [ Search for Manuel Sergio Barron v The State of Texas (2007) the GOOGLE link will pull up the file.]

There's presently only 3 general allowances for public handgun wearing/carrying in Texas - "TRAVELING", the concealed handgun license/permit, and the Motorist Protection Act of 2007 private vehicle allowance. When I "travel" throughout Texas I may or may not opt to conceal while strictly "paying at the pump", or strictly enroute between between my motel room and my vehicle- depending upon the circumstances. Since the bulk of my Texas "travel" experience has been in West Texas and the Panhandle I'm quite comfortable with the practice. For my own reasons I have determined that both of these situations constitute "traveling" high-risk situations for either criminal confrontation, and/or predation. I purpose that the visibility factor may discourage any potential confrontation involving solicitation for goods or services that might lead to justifiable use of defensive deadly force.

Prior to enactment of the CHL program law-abiding folks were ALWAYS "traveling". The "traveling" status pretty well negated 46.02 - except primarily in the Houston Metro area and Eastward, and even perhaps DFW. San Antonio area was relatively tolerant of "travelers". I believe simple reflection upon demographics throughout Texas reveals a direct correlation between the level of tolerance or scrutiny applied to a person's "traveling" status. You will find historical roots for this selectivity option going back to Reconstruction.

If Texas' law was relaxed to allow for say - "Arizona" open carry, legislators and law enforcement are concerned that wholesale childish and delinquent behavior will follow, resulting at the very least in a deluge of disorderly conduct prosecutions piling up on the court dockets.

A further discouraging consideration is that once open carry was allowed the next phase would begin - the logical extention of the practice into the private property domain with the resultant controversy over whether it is "appropriate" or not. Legislators, the Governor, and law enforcement share the concern that blanket allowance of open carry will generate a vast array of collateral problems. I can see provision for "NO DISPLAY OF FIREARMS" signeage.

Texas is unique. It's HUGE, culturally and demographically diverse, and practically speaking CULTURALLY UNMANAGEABLE from Austin. I've lived alot of years in Texas - long enough to know that you will find most Texans to be some of the most polite, friendly, and charitable folks on the planet. On the other hand it's also pretty easy to get into a hostile "discussion" over little or nothing. Maybe the introduction of OC would improve the situation - I personally think that it would. One thing I am sure of is that social acceptance of OC in Texas will require a high degree of MATURITY, GOOD MANNERS , AND SITUATIONAL RESPECT AND AWARENESS by any person putting it into practice.

rhenriksen said:

When CHL was introduced in Texas in 1995, the original statute let property owners ban concealed carry in their establishments with a pretty small, difficult to see, anti-gun sign. To ignore such a sign & get caught w. your firearm w/in a posted premises means the loss of your CHL and a criminal prosecution. With all of the media hype during the battle to initially pass CHL ("blood in the streets!"), these 'no firearm' signs popped up everywhere like mushrooms after a rainstorm.

In order to keep a CHL from being rendered useless by being denied the right to carry in so many places, the following legislative session in 1997 established new rules for what kind of signage was required before the weight of the law comes down on the CHL holder. Section 30.06 of the Tx law mandates that the sign has to be made of contrasting letters against the background, minimum 1" high letters, specific (lengthy) wording in both English and Spanish, placed on prominent display at all entrances. 30.06 is sometimes referred to as the 'big ugly sign law'. You'll see very few 30.06 signs around Texas, and in part because they're such an eyesore (by design).

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There's another part to that story that's important to remember: the original law said guns could be blocked by "actual notice", IIRC, which included written notice. True, there was no standard such as a 30.06 notice, but plenty of other states allow a trespassing charge without specific signage.

So, why did Texas need this big ugly sign? Easy: Penal Code 30.05 (Criminal Trespass), in (d)(3)(B), makes it a Class A misdemeanor to trespass while in possession of a "deadly weapon". Compare that to a Class C misdemeanor (same as a speeding ticket) for criminal trespass without the gun. In some states, ignoring a sign might incur no criminal penalty at all, or perhaps a small fine. But in Texas, it meant up to one year in jail, plus loss of license and being banned from getting another license for an additional five years after completion of any sentence or supervision.

It wasn't the ease of accidentally wandering past one of those signs that was the problem, it was the hugely disproportionate penalty that was attached. PC 30.06 was the solution.

Now, 30.06 doesn't have a direct bearing on open carry. It specifies that it only applies to licensees, and only if they're carrying a concealed handgun. If Texas went to "constitutional carry", then unlicensed people could still get slammed with a Class A charge for carrying past a "gunbusters" sign, if the court finds that it was sufficient notice. So could a licensee who was carrying openly.

The conventional wisdom fear, as you noted, is that people will slap up 30.06 notices in response to OC. Those notices would then apply to CHLs, but not the unlicensed OC folks. And since the penalties are still hugely disproportional to the offense, they have a point.

There are simple solutions for all this, but the gatekeepers don't want to open the box for fear we'll lose ground. Even though gun rights are gaining ground everywhere, they're still fearful of the soccermom crowd.

Glad that this has been a calm discussion of the situation! The challenges of getting OC in Texas has inflamed a lot of passion in the past.

rhenriksen said:

Glad that this has been a calm discussion of the situation! The challenges of getting OC in Texas has inflamed a lot of passion in the past.

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Yep, it inflames some forum owners to whip out their banhammer.

Well, I've been OCing for the past week in Maine, and have yet to get proned out. My gun did try to jump out of its holster several times, but I was able to restrain it before anyone was slaughtered.

I'm beginning to suspect that we have been sucked into a "snipe-hunt " - chasing a non-existent phantom on this 46.02(unlicensed)/46.035(licensed) issue in Texas. I've yet to come up with a case where a 46.02 or 46.035 arrest charge was filed in the absence of some collateral criminal conduct(public intoxication, menacing. assault, shooting, robbery, car-jacking, etc.) Perhaps we don't give law enforcement enough credit for common sense and being intelligent enough to tell the difference between a criminal and a law-abiding citizen.

Could also be that the cops used the gun to tack on an easy assault/menacing charging.

rushcreek2 said:

I'm beginning to suspect that we have been sucked into a "snipe-hunt " - chasing a non-existent phantom on this 46.02(unlicensed)/46.035(licensed) issue in Texas. I've yet to come up with a case where a 46.02 or 46.035 arrest charge was filed in the absence of some collateral criminal conduct(public intoxication, menacing. assault, shooting, robbery, car-jacking, etc.) Perhaps we don't give law enforcement enough credit for common sense and being intelligent enough to tell the difference between a criminal and a law-abiding citizen.

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Really?

http://www.chron.com/disp/story.mpl/metropolitan/3330553.html

That was the Harris County DA's response to the 2005 version of the "car carry" bill, where he directed all police in the county to arrest and charge everyone with UCW if they had a gun in the car without a CHL.

The law was strengthened and clarified in 2007, but there was at least one case in Harris County that was publicized, where a man was arrested, and charged with 46.02 UCW. He had just met someone to buy a revolver in a private sale, in response to a classified ad. He had the (unloaded) gun in a case under the back floor mat of his Jeep Cherokee (I think; anyway, it was a vehicle without a trunk), and was stopped for speeding on his way back to his office.

When asked if he had any weapons in the vehicle, he told the officer about the gun, and promptly found himself wearing chrome bracelets.

I didn't find that with a quick internet search, but I'll keep looking for the citation. Maybe someone else will remember better and have an easier time finding it.

acmariner99 said:

Hey all! I had the opportunity to visit your fine state recently and though I was stuck with concealing, I enjoyed my visit. My trip also got me thinking: what are the reasons why OC is a no-no in Texas? (Aside from a few very limited exceptions of course.) Is it a remnant from the Jim Crow days, or does it have something to do with the emphasis Texas places on the rights of property owners? Though this reasoning I find to be unfounded, is OC illegal because some property owner would get nervous and run for his shotgun if he/she saw someone carrying a pistol? I would think that because of Texas' friendly and welcoming nature that most people wouldn't have a problem with it. Personally I would just like the option cause it gets too hot and humid to conceal comfortably. I would like to discuss what you think are the reasons for or against OC in Texas. Carry On

Click to expand...

acmariner99 said:

Hey all! I had the opportunity to visit your fine state recently and though I was stuck with concealing, I enjoyed my visit. My trip also got me thinking: what are the reasons why OC is a no-no in Texas? (Aside from a few very limited exceptions of course.) Is it a remnant from the Jim Crow days, or does it have something to do with the emphasis Texas places on the rights of property owners? Though this reasoning I find to be unfounded, is OC illegal because some property owner would get nervous and run for his shotgun if he/she saw someone carrying a pistol? I would think that because of Texas' friendly and welcoming nature that most people wouldn't have a problem with it. Personally I would just like the option cause it gets too hot and humid to conceal comfortably. I would like to discuss what you think are the reasons for or against OC in Texas. Carry On

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It was originally a carpetbagger/"good ol' boy" law; guys from out of town, or blacks, or Yanks, etc would be convicted by the resident judge/jury, while Bubba from just up the road gets off. In the '60's with the Civil Rights Act, judges began to be forced to apply the law (or its equivalent; the Texas Statutes were reorganized in the '70's) equally. It was not repealed because the State was still reeling from President Kennedy's assassination; not a real good move politically to repeal one of the few gun laws on the Texas books, especially with a Texan in the White House and the peace movement gaining steam.

Nowadays, regulation of open carry is similar to the persecution of OCers elsewhere; out of sight is out of mind, and you scare the sheep with a big ol' Glock on your hip. There are some practical reasons as well, generally given by CC advocates and sheeple in politics alike:

* If you are OCing, and get in an argument, and put your hand on your weapon (even with no intention of pulling it - say you put your hand on your hip and your pinky lands on the grip), a good DA will send you up for at least disorderly conduct, and maybe aggravated assault. All the other guy has to do is say you put your hand on your gun and he perceived that as a threat, and you're gone. Concealed, that just won't be a problem unless you intentionally reveal your weapon first (a no-no anyway). You have to be very mindful of where your hands are when other people know you have a weapon.

* OC gives too much information. An OCer, when trouble breaks out, must act immediately; either pull and shoot, or run. If he's shocked or taken by surprise (theoretically should never happen, but it does, all the time), he will be shot and/or disarmed. By contrast, someone CCing can afford to recover from a moment's shock in a store robbery, and decide what to do, because he doesn't have a target painted on him; he's just another sheep until he shows his teeth. All too commonly, people think because they carry, or even because they've had training, they are "prepared" and won't freeze up in a life-or-death situation. They are wrong, often dead wrong. Even Army recruits, who've been through basic and advanced training and think they're hot stuff, will soil themselves when that first bullet whistles by. If you advertise that you are ready for trouble, you damn well better be.

These are two big reasons CC advocates give when they say they don't support OC. You have to admit they are both really good arguments, whether you are for or against OC. Now, OC has its obvious benefits; deterrent, comfort, more clothing options, faster draw, etc. I personally would like to have the choice.