imported post
DKSuddeth wrote:
DocNTexas wrote:
First off, the Texas Constitution does not make open carry illegal directly, but does allow the state to enact laws regarding the wearing of arms. Under Article 1 - Bill of Rights of the Texas Constitution, Section 23 states:
Section 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.
As for the statute that makes open carry illegal, it is 46.02(a) of the Texas Penal Code, which reads:
Texas Penal Code § 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if he intentionally, knowingly, or recklessly carries on
or about his person a handgun, illegal knife, or club.
This statute make it illegal to carry a handgun in any manner, except where expressly exempt by PC § 46.15. NONAPPLICABILITY. Under 46.15, specific groups and situations are outline in which 46.02 (and/or 46.03) does not apply, such as police officers, security officers, judges and so on. As part of this section, 46.15(b)(6) expressly exempts those carrying a concealed handgun under the CHL.
In short,Texas lawprohibits the carry of a handgun in any manner by anyone, then merely provides specific exemptions to which the law does not apply.
Doc
Doc, I had asked earlier in this thread with no answer, but is there case law (not via criminal convictions) that has the texas courts upholding this license scheme?
DK,
I went back and read your previous post to make sure I understood your question and I think I do, so here is an attempt to answer it.
As for case law supporting the enforcement of 46.02 (46.02 is the law that prohibits all public carry, open or concealed), there are thousands of cases on record.
As for the Texas Supreme Court reviewing and upholding the legitimacy of 46.02, I am not sure that has ever occurred and doubt seriously that it would. The Texas Supreme Court dealswith constitutionality, application of lawand due process issues but they do not arbitrarily hear a case just because it is filed in their court. They firstinvestigate the merits of the case in questionto see if there is any obvious doubt before agreeing to hear the case. If they find no merit in the basis for the case, they simply deny the case for review. This is what I feel the court would decide if presented a case challenging the legitimacy of 46.02 for someone wanting to openly carry a handgun and here is why I say that:
First off, the Texas Constitution expressly allow the state toregulate the wearing of arms with a view to prevent crime. This opens the door for any law that can be argued as intended to reduce or prevent crime, which is what 46.02 was "intended" to do.
Next, 46.02 does not apply to a persons own property and even has provisions for allowing law abiding citizens to carry in public places, so it does not necessarily restrict your personal rights (at least on face value), which is the argument the court will take. Since the intent of46.02 is crime prevention, the law is legal under the constitution and as such the supreme court would probably not hear the case on those grounds.
With that said, let me add a personal note about the subject. I am totally for open carry and I push for it at every turn. As such, Isee a better argument being that since one is allowed to carry concealed with a license, then there is no crime prevention valuein requiring that it be carried "concealed", therefore, Texas CHL's should simply be "carry" licenses, allowing one to carry however they choose. In short, without the ability to show some crime prevention meritin carrying"concealed", the concealment clause in the CHL code is unconstitutional under the Texas Constitution.
The risk of filing a legal action to change the concealment portion of the code, however, is pushing a few senators that support concealed carry, but not open carry, to the other side of the fence and losing the right to carry at all. I think I would prefer to push for a legislative change in the law (convince them to make the change) rather thantrying and force their hand by legal action. This way we do not risk making some of them mad and losing already gained ground. This is just my opinion though, I thow it in simply as food for thought, because I support anyone who is active seeking to improve our ability to carry and protect ourselves and family.
I hope that helps, but if I was off base with your question, try to clarify what you are askingand I will give it another try.
Doc