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Thread: Texas Constitution on carry of arms

  1. #1
    Regular Member JBarL's Avatar
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    Post Texas Constitution on carry of arms

    I am probly going to get alot of negitive feed back on this but hey thats what a discussion is all about right? Ok let me first off
    say that I am a PRO GUN American and Texan, But I was sitting here reading the original 2nd Amendment of the U.S. Constitution and Reading Article Sect 23 of the Texas State Constitution and Frankly I will just say that Texas is going against our rights on carrying of arms. here is a copy of both articles from the constitutions. read it and then give me feed back cause if I read this correctly then it's time to get the Legislators to listen to us .

    United States Constitution
    Amendment II
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.



    Texas State Constitution
    Sec. 23. RIGHT TO KEEP AND BEAR ARMS. 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.

    Now after reading again it is to my knowledge that Texas Constitution states that it is the Legislation to determine if we carry arms when In fact that over rides OUR U.S. Constitutional 2nd amendment right. now I know Texas can succeed from the U.S. at anytime but right now I'm Tired of the Government telling me what they think is the Best for me. I'm a Grown Man who ownes land pays Taxes Works and Ohhh Who pays the Legislators Saleries. SO Let me say Pass the Damn open carry Law Or get out of office and we will Vote people in to pass this bill and Make it Our Right which was taking from us around 1875 and let Us determine what is in the best intrest of Us... now I'm done ranting thanks for letting me vent now ready to read all the comments.
    Last edited by JBarL; 07-29-2011 at 02:17 PM. Reason: grammer issues lol
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    Regular Member rodbender's Avatar
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    Comments noted, and agreed to.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Regular Member rushcreek2's Avatar
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    JBarL - Welcome to this forum.

    I doubt that you will experience much negative feed-back here regarding your common-sense assessment of the Texas "situation".

    Much has been presented here in support of the FACT that the Texas Constitution does CLEARLY declare, guarantee, protect, and enshrine the right of EVERY CITIZEN in Texas to keep AND BEAR arms (including handguns) in defense of themselves, and the State.

    I have personally, REPEATEDLY addressed the FACT that the Article 1, Section 23 provision for the Legislature's power BY LAW to regulate the "wearing of arms, with a view to PREVENT CRIME "- only refers to the practice of CONCEALING ARMS on, about, or UNDER one's clothing FOR CRIMINAL PURPOSE.

    This is THE LAW IN TEXAS - if the Texas Constitution is in fact THE LAW.

    Texas CASE LAW has not supported Article 1, Section 23 of the Texas Constitution. What does that tells us about Texas courts ?

    __________________

    We are currently witnessing (again) the unfolding of a planned mass-shooting event in Killeen, Texas.

    I haven't heard precisely what Killeen resturant was targeted by this particular incarnation of an Islamic nut-case, but if there is a " Golden Corral" outside Ft Hood - that would be my bet.

    The "education" constituency largely controls the Texas Legislature - due to the activism of teachers, professors, and college students. Until this trend is brought into balance by some EFFORT asserted by CONSTITUTIONALISTS there isn't much hope for a legislative remedy in Texas.

    Serious pressure must be brought to bear in the courtrooms, legislative offices, and the Governor's office.

    In addition - those who agree with us must try to educate as many people as we can regarding what the Texas Constitution (which is the SUPREME LAW of Texas) declares.

  4. #4
    Regular Member JBarL's Avatar
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    Thank You Rushcreek for the warm welcome. and I just want to spread the word about Voting these Nut Jobs who tell us we cant cause it isn't good for Us out of office and get people in here who actually know who to read the Constitution. anyways I always wanted to have a big ol' bar-B-que invite alot of Pro gun people out and make it a open carry bar-B-que of course it would be on Private Property. but I would like to do it and infact would even invite the Local news station out to get reconizition on what we are doing but these days, well they are most liberated now and well some or anti- gun lol but however our weatherman has some video clips on shooting so I really would like to invite him out lol. but as I always say where there are firearms absolutly No Alcohol will be around. but I'm glad to have met ya and please fell free to chime in anytime ...
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    Regular Member JBarL's Avatar
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    Well I just wrote to My district senator I hope I wasnt to hard on him. I just dont beat around the bush I'm very upfront and well sometimes I hurt peoples feelings. But I for one would be the worst one to write someone of importance But frankly I'm getting pissed everyday knowing they are sitting down there stripping Us from our rights everyday. I will paste my letter to him Ya'll tell me if I was wrong or not. lol

    Senator Birdwell,
    I'm writing to you today for the reason of open carry laws in Texas. Sir I am a Certified Handgun Instructor and a CHL holder as well. I wanted to know, what happened to the bill that was supposed to be voted on for open carry. Sir I am neither a lawyer nor do I plan to be, but if you would allow me to say, that right now The State of Texas is going against its on constitution. Constitution states "SEC. 23. 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." The U.S. Constitution also states the right to bear arms for defense. Sir with all due respect, we as citizens are getting really upset with the legislators infringing on the rights of US law-abiding citizens. This State like all are based on the Freedoms from the Government, And Frankly Sir as a individual I will say We donít need to be placed in the category as a "Nanny State" Sir another words. I have the right to know what is the best interest of me and my family, Not the Government telling me when to do What to Do and How to do. Last time I read the Constitution and Bill of Rights I do remember seeing the Words ďWe The People" And If I recall We The People Is who Pays the Salaries of the government. I would like to see Texas Give back our right that was taken from us back in 1876 Due to poor interpretation. So please look into getting a bill proposed and get a vote on open carry and get it passed. Millions of voting Texans does at least deserve that much donít you think? Thank You for your time.
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  6. #6
    Regular Member rodbender's Avatar
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    Quote Originally Posted by JBarL View Post
    Well I just wrote to My district senator I hope I wasnt to hard on him. I just dont beat around the bush I'm very upfront and well sometimes I hurt peoples feelings. But I for one would be the worst one to write someone of importance But frankly I'm getting pissed everyday knowing they are sitting down there stripping Us from our rights everyday. I will paste my letter to him Ya'll tell me if I was wrong or not. lol

    Senator Birdwell,
    I'm writing to you today for the reason of open carry laws in Texas. Sir I am a Certified Handgun Instructor and a CHL holder as well. I wanted to know, what happened to the bill that was supposed to be voted on for open carry. Sir I am neither a lawyer nor do I plan to be, but if you would allow me to say, that right now The State of Texas is going against its on constitution. Constitution states "SEC. 23. 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."

    This is where they go wrong. When OC was outlawed, it did not prevent crime, it created one.

    The U.S. Constitution also states the right to bear arms for defense
    .

    The U.S. Constitution does not say the right to bear arms for defense. It simply says that we have the right to bear arms, i.e. for any reason we wish.

    Sir with all due respect, we as citizens are getting really upset with the legislators infringing on the rights of US law-abiding citizens.

    This State like all are based on the Freedoms from the Government
    ,

    Our freedoms do not come from government, we are endowed by our creator with unalienable rights. Government can only infringe or disregard those rights.

    And Frankly Sir as a individual I will say We donít need to be placed in the category as a "Nanny State" Sir another words. I have the right to know what is the best interest of me and my family, Not the Government telling me when to do What to Do and How to do. Last time I read the Constitution and Bill of Rights I do remember seeing the Words ďWe The People" And If I recall We The People Is who Pays the Salaries of the government. I would like to see Texas Give back our right that was taken from us back in 1876 Due to poor interpretation. So please look into getting a bill proposed and get a vote on open carry and get it passed. Millions of voting Texans does at least deserve that much donít you think? Thank You for your time.
    The rest is fine.
    The thing about common sense is....it ain't too common.
    Will Rogers

  7. #7
    Regular Member JBarL's Avatar
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    Thank You Rodbender, I just wanted to voice My opinion on the matter Thats why I put it here . to get feed back on what I wrote. thanks all for any and all feed back.
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    I read that differently from Rodbender. I read that "freedom from the govt" means we are not tied down by our govt. Not the govt grants us our freedoms. Although i may be misreading that.

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    the south

    After the civil war, many southern states had their constitutions rewritten with some degree of gun control to prevent the south from "rising again". Southerners gleefully embraced gun control to prevent blacks from arming against their oppressors as gun control laws were selectively enforced against blacks only. Only in recent years when northern liberals started to invade the southern cities for jobs during successive waves of recessions and enforce gun control laws against all, did people in the south start lobbying for "shall issue" concealed carry laws.

    However, I don't think Texas is worse, but better than any other state with regard to gun laws. This is the only state you're allow to shoot an unarmed thief running away from you with your stuff (only at night, though). How's that for protection of victims?!

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    Regular Member ()pen(arry's Avatar
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    Quote Originally Posted by drjoker View Post
    This is the only state you're allow to shoot an unarmed thief running away from you with your stuff (only at night, though).
    Where in the world did you get that idea? Texas "Castle doctrine" does not allow any such thing. Especially if "your stuff" were recoverable, you would be charged with, and likely found guilty of, aggravated assault with a deadly weapon, and at least second degree murder if you killed the thief. "Recoverable" means financially recoverable, not just physically recoverable, so if you have insurance on your car, or home-owner's insurance, or anything like that covering what was stolen, you would be able to present no defense against prosecution.

    Also, JFC, bloody-thirsty much?

  11. #11
    Regular Member rushcreek2's Avatar
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    The only serious impediment to LICENSED open carry of a handgun in Texas is the Section 46.035 (a) statutory prohibition against intentional display in public while carrying under authority of a CHL. The impediment to UNLICENSED carry of any kind is Section 46.02 (a)- which should be interpreted by Texas courts - per the intent of Article 1, Section 23 -to apply only to CONCEALMENT of weapons on, or about one's person/clothing(hence the reference to the WEARING of arms).

    As was recently recognized and cited by the federal district court in Lubbock, Texas in January (the NRA case that challenged the ineligibility for a CHL by non-vet 18-20 year olds) - only the carry of handguns is subject to license/permit in Texas, and of course the CHL currently requires concealment.
    So the federal court held that the RTKBA of these 18 & 20 year olds is not being unduly infringed upon because they are able to bear a long gun ( oh, really ?).

    When you reflect upon the recent High School shooting in Ohio - it is understandable WHY non-vet 18-20 year olds are excluded in most (if not all)CCW laws. Of course no person intent upon committing murder is concerned about violating firearms laws. This non-vet age group may still be in high school, or drop outs still interacting with high school students.
    Last edited by rushcreek2; 03-13-2012 at 01:08 PM.

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by ()pen(arry View Post
    Where in the world did you get that idea? Texas "Castle doctrine" does not allow any such thing. Especially if "your stuff" were recoverable, you would be charged with, and likely found guilty of, aggravated assault with a deadly weapon, and at least second degree murder if you killed the thief. "Recoverable" means financially recoverable, not just physically recoverable, so if you have insurance on your car, or home-owner's insurance, or anything like that covering what was stolen, you would be able to present no defense against prosecution.

    Also, JFC, bloody-thirsty much?
    It's not in the "Castle Doctrine".

    As far as recoverable; you can not recover the deductible amount from insurance or any other means.

    Subchapter D, Sec 9.41 and 9.42

    http://www.statutes.legis.state.tx.u.../PE.9.htm#9.41
    The thing about common sense is....it ain't too common.
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    "...gun control to prevent blacks from arming against their oppressors as gun control laws were selectively enforced against blacks only." -- drjoker

    I don't think the Reconstruction (Carpetbagger and Scalawag) governments in the South wanted any "uppity white folks" armed, either...meaning very unhappy & pissed-off ex-Confederates soldiers such as Josey Wales -- and those like him. ;-)

    I think that's one reason OC was lost in Texas during Reconstruction (1871-72).

    I have no explanation why it was never reinstituted in the 141 years since then...
    Last edited by cloudcroft; 03-04-2012 at 10:29 PM.

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    Regular Member ()pen(arry's Avatar
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    Quote Originally Posted by ()pen(arry View Post
    Especially if "your stuff" were recoverable, you would be charged with, and likely found guilty of, aggravated assault with a deadly weapon, and at least second degree murder if you killed the thief. "Recoverable" means financially recoverable, not just physically recoverable, so if you have insurance on your car, or home-owner's insurance, or anything like that covering what was stolen, you would be able to present no defense against prosecution.
    Confirms everything I said, and precisely the reason I used the word "recoverable".

    Quote Originally Posted by rodbender View Post
    As far as recoverable; you can not recover the deductible amount from insurance or any other means.
    Good luck with that in court. I won't contribute to that defense fund.
    Last edited by ()pen(arry; 03-05-2012 at 10:20 AM.

  15. #15
    Regular Member rodbender's Avatar
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    Has happened a few times in my lifetime (that I know of) and I know of not one that has spent one night in the pokey.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Regular Member hermannr's Avatar
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    I would suggest that your state constitution already allow OC for self defence, as you ability to CC is licensed.

    Back in 1902 there was a case in Idaho, it is called "in re Brickley", where the Idaho State supreme court stated that if the legislature wished to regulate CC, then they had to allow unregulated OC (or V/V) but they could not totally prohibit any carry at all without a license. "If you require a license to exercize a Right, it no longer is a right, but a privilage". ID has unlicensed OC. (as does WA, but our constitution does not have any of that ability to regulate crap)

    ID state constitution is not that much different than the TX state constitution. Is there any case law (like in OK) where TX does not agree with "in re Brickley"? In re Brickey, 8 Idaho 597, 70 P. 609 (1902).

    "(Supreme Court of Idaho. Nov. 15, 1902.)

    BEARING ARMS--CONSTITUTIONAL LAW--CARRYING CONCEALED WEAPONS.

    1. The act of the territorial legislature approved February 4, 1889, which prohibits private persons from carrying deadly weapons within the limits or confines of any city, town, or village in Idaho, contravenes the provisions of the second amendment to the federal constitution and the provisions of section 11, art. 1, of the constitution of Idaho, and is void.

    2. While it is undoubtedly within the power of the legislature to prohibit the carrying of concealed deadly weapons, and such regulation is a proper exercise of police power, yet the legislature does not possess the power to prohibit the carrying of firearms, as the right to do so is guarantied to the citizen both by our federal and state constitutions."

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    Regular Member rushcreek2's Avatar
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    The consistent error of Texas case law in support of the statutory infringement of the right to bear a handgun at all ( Section 46.02a) is rooted in concerns pertaining to CONCEALMENT of handguns. The carry of a handgun may be licensed, but not systematically suppressed ( Robinson v Baldwin, and Murdock v PA- per the SCOTUS) . Texas statutory law presently suppresses the right to bear a handgun entirely by maintaining criteria for obtaining the required CHL that is intended to enforce unrelated social policies (child support, student loan repayment, and tax collection).

    Texas' suppression of handgun carry has been rooted in the historical presumption that a handgun is inherently "concealed" by virtue of the readily concealable characteristics of the weapon. Contrary to the ingrained Hollywood perception of the "Old West" - handguns were generally carried tucked behind a belt, concealed by clothing, in a pocket, or in some other hidden manner - NOT displayed openly in a holster like "Matt Dillon", Roy Rodgers, and the like. A handgun was considered -by definition - concealable , if not actually concealed. This attitude is still prevalent

    Although we are now dealing with the practice of carrying handguns that are secured in holsters- and openly displayed in plain view- we must remember these historical nuances in order to understand and deal with opposition attitudes.
    Last edited by rushcreek2; 03-13-2012 at 01:46 PM.

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    Rush, while I agree with your take on 23, I have to ask, where did you find the legal definition to wear vs bear? It seems to me that the statute as written leave much open to interpretation. I ask only because I've seen you post similar things and I still can't figure out where your bringing your argument from.

  19. #19
    Regular Member rushcreek2's Avatar
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    Mustangkiller , I guess I am prone to framing, and illustrating my points with verbal "switch-backs", and plays on words. It is my understanding that the prevailing direction of political "winds" in 1876 was that the term " ....wearing of arms " was universally understood to refer to weapons capable of being "stowed" IN, UNDER, or ABOUT one's clothing, or carry-alongs in any fashion that produced CONCEALMENT. It has always been about CONCEALMENT in Texas even though that word is missing from the text of Section 46.02(a).

    Since the CHL law was inacted in 1995 the Texas Legislature has exercised its constituted

    "... power, by law, to regulate the wearing(concealment) of arms to prevent crime" ...

    by providing a system for licensing the public "wearing" of CONCEALED handguns. That is a legitimate power granted to the Legislature under Article 1, Section 23, HOWEVER, the constitutionally declared right to keep & BEAR arms is clearly distinguishable from " the wearing of arms" - and is therefore not subject to the limited and specific legislative power " to regulate" the latter. Further, no classification of arms was ever created by the two provisional clauses of Article 1, Section 23. The imagined distinction without a difference between long guns and handguns does not exist therein. Therefore the cited right to bear arms in lawful defense is applicable to both.

    Section 46.035 (a) - which portends to criminalize the act of merely exercising one's constitutionally declared right to lawfully bear a handgun notoriously and openly in a holster, rather than apply to the State for permission to wear one clandestinely and hidden among one's clothing, is inconsistent with Article 1, Section 23 of the Texas Constitution. Just try wearing a "concealed " handgun while not also wearing clothes........I find it incredulous that the Legislature, and the courts in Texas have allowed this absurd situation to go on for this long without remedy.

    Section 46.035 (a) was "sold" to address concerns that were held by some legislators in 1995
    that citizens licensed to carry a concealed handgun would automatically be tempted to resort to intentional display of their concealed weapon as a form of "non-verbal communication" in the heat of some incident not already adequately addressed by Section 42.01 -disorderly conduct.

    My own experience while living and visiting in Texas suggests that open carry of a holstered handgun will be an instant NON-issue once it becomes "legal".

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