H. B. 195 - Texas Open Carry

How might the Supreme Court square Texas' approach with historical open carry only?

There are those who take literally the Heller admonition that laws banning concealed carry might be presumptively constitutional despite other conflicting references in the text, both implied and direct, showing that concealed carry . . ."in the clothing or in a pocket" carry is encompassed within that meaning of bear arms.

In any case, it will be interesting to see how the high court will balance the Texas approach of concealed only, and how it might be resolved with the language of Heller which indicates, absent the conflicting language, that open carry is the historical form of the right.

The Peruta approach (9th Circuit, San Diego case), of course, says the that states may choose which form of bear it will allow to satisfy the exercise of the right.

Thoughts?
 
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maestro pistolero said:
In any case, it will be interesting to see how the high court will balance the Texas approach of concealed only, and how it might be resolved with the language of Heller which indicates, absent the conflicting language, that open carry is the historical form of the right.
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The main problem with this approach is that OC is NOT the historical form of the right in TX; it has been unlawful since at least 1871, according to the notes in the margins of the 1879 Texas Penal Code, which can be downloaded HERE if you're interested.

My emphasis underlined:
CHAPTER FOUR.
UNLAWFULLY CARRYING ARMS.

ARTICLE 318. If any person in this state shall carry on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for purposes of offense or defense, he shall be punished by fine of not less than twenty-five nor more than one hundred dollars; and, in addition thereto, shall forfeit to the county in which he is convicted, the weapon or weapons so carried.

ART. 319. The preceding article shall not apply to a person in actual service as a militiaman, nor to a peace officer or policeman, or person summoned to his aid, nor to a revenue or other civil officer engaged in the discharge of official duty, nor to the carrying of arms on one's own premises or place of business, nor to persons traveling, nor to one who has reasonable ground for fearing an unlawful attack upon his person, and the danger is so imminent and threatening as not to admit of the arrest of the party about to make such attack, upon legal process.
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The law exempted OC on private property and while "traveling", whatever that meant (likely "traveling while Caucasian" in the historical Southern context :rolleyes:). It also exempted OC if the person has "reasonable ground for fearing an unlawful attack upon his person", but ONLY when "the danger is so imminent and threatening as not to admit of the arrest of the party about to make such attack"- i.e. when circumstances dictate that promptly summoning law enforcement is not feasible.

Another major problem is that the TX Constitution explicitly gives the Legislature the power to regulate the carrying of arms.

From Article I, Section 23, my emphasis underlined:
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.
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That underlined section means precisely nothing.

You can regulate open carry, but what effect does that have on crime? When open carry is outlawed, criminals will carry concealed (as most people, criminal and otherwise, do anyway). They have the advantage of surprise so increased reaction time is not a factor for them.

You can't regulate concealed carry of firearms very well because concealed means concealed most of the time, and you can't stop and search everyone. (The government might want to, though, with roving x-ray vans.)

I might quibble over the wisdom of open carry, but saying regulating it prevents crime is ridiculous (which is what a reading of that underlined passage in the context of the current laws—that concealed-carry is ok with a permit, but open-carry is completely banned—would suggest). If the current disparity between open and concealed carry was not done with a view to prevent crime, then what is the justification for the disparity?
 
maestro pistolero said:
There are those who take literally the Heller admonition that laws banning concealed carry might be presumptively constitutional...
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I see nowhere in Heller where the Supreme Court said that laws banning concealed carry were presumptively constitutional. What the Court did say was (slip op. at 54 - 55, emphasis added):
...Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26....
_________

[fn]26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive
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In context, the Court's citation of Chandler and Nunn, two 19th Century state court cases in which regulation of the concealed carry of arms was upheld, was merely for the purpose of illustrating that the rights protected by the Second Amendment have been subject historically to some regulation.

That view is supported when we look at the full text of an earlier citation of Nunn and Chandler from the majority opinion in Heller (slip op. at 38 - 40, emphasis added, footnoted omitted):
...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia....See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”​

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”...
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Note also in the foregoing that the Court cites a Virginia case, Aldridge v. Commonwealth, and a Maryland case, Waters v. State, each of which (1) holds that the Second Amendment describes an individual right; and (2) sustains law barring Black from possession firearms. Is the Court citing those case to suggest that such a limitation would be acceptable today? Is the Court suggesting that those restrictions on the rights protected by the Second Amendment "presumptively constitutional"?

Of course not. The Court said, explicitly, that all those cases, including Nunn and Chandler, were cited to show that (slip op. at 38):
...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions....
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The court cited, without refuting it, the notion that:

. . . the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues.
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Yes, it was in the context of providing an example of regulation that courts have upheld; that regulation is permissible, but I don't see how that that context weakens the point.

Nonetheless my earlier post that the court found concealed carry bans presumptively constitutional does perhaps overstate the point.
 
I think the primary issue is that the SCOTUS has not (yet!) unequivocally ruled that some form of carry must be allowed. I think we're going to have to cross that bridge before the federal courts address any sort of Unlicensed OC vs. Shall-Issue CCW question.

The main point of my prior post is that, in TX, the question is greatly complicated by the fact that OC has been unlawful in most circumstances for at least 125 years, and AFAIK this prohibition has never been seriously challenged in TX courts on 2A grounds. IOW the prohibition of OC is pretty much settled law in TX, even if it's ultimately unconstitutional (which IMHO is the case, but it's not my call ;)).
 
New Life for Open Carry...

I know that this originally started out as a thread on House Bill 195 but there seems to be movement on open carry. On Monday, the Texas Senate approved Senate Bill 17, which would allow CHL holders to open carry. Vote was along party lines, 20 to 11. If it passes a final vote in the Senate, it then heads to the House. Gov. Abbott says he's "warming up my signing Pen", so it it passes out of the House, we may have finally have Open Carry in Texas. If I properly understand all of this, Concealed Handgun license will become just a Handgun license. There seems to be the usual hand wringing about blood in the streets if this passes.

Time will tell where it goes from here.
 
The House Committee also held an open hearing regarding HB 195 the day after Open Carry passed the Texas Senate. Unlike last year, when Open Carry failed, we have a TSRA A-rated Representative in charge of the Public Safety Committee and a TSRA A-rated Representative in charge of the House Calendars Committee.

So things look good - though what kind of open carry bill gets passed is still very much up in the air. The Senate version for example mandated retention training for CHLs - and there were a whole slew of amendments that failed in the Senate for additional training and restrictions that we could see offered again in the House. Overall though, things look very promising this year for the Second Amendment in Texas!

(And on that note, Campus Carry passed the Senate as well!)
 
I wonder if they will have to change the wording on 30.06 signage?

And as businesses become unhappy with open carry, will more places put up 30.06 signs?
 
Retention training (told by buddies in the business) seems to be showing some retention holster/devices and a video of such usage and problems. Not a mandated H2H class.

But what do I know. Let it get past the House.
 
One other amendment that passed the Senate was no open carry on campuses. On the plus side, that seems to indicate that lawmakers are anticipating campus carry passing since currently no campus carry is legal.
 
That would be just dandy. I can't wait for the uproar.

The private schools will be interesting as they have supposed to have some kind of conversation as to whether they go along, IIRC.
 
"Retention training (told by buddies in the business) seems to be showing some retention holster/devices and a video of such usage and problems. Not a mandated H2H class."

Hopefully those of us who recently completed the course but have not yet gotten the paperwork from the state will not be required to attend additional training (I know, I know, the law takes effect in January --still, though). I'd be peeved (not angry) if I just completed a class and had to go back to school because we'd won more freedom :p

TCB
 
The private schools will be interesting as they have supposed to have some kind of conversation as to whether they go along, IIRC.
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Private schools are considered private property and the law sees them as such.
If they don't want CHL on campus, they post a proper 30.06 signage and done.

Should've named it after another cartridge; .357, or something. Harder to remember 30.07.
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I agree. Maybe a section 45.70?
 
barnbwt said:
"Retention training (told by buddies in the business) seems to be showing some retention holster/devices and a video of such usage and problems. Not a mandated H2H class."

Hopefully those of us who recently completed the course but have not yet gotten the paperwork from the state will not be required to attend additional training (I know, I know, the law takes effect in January --still, though). I'd be peeved (not angry) if I just completed a class and had to go back to school because we'd won more freedom :p

TCB
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From my sources in the know, the new training won't be required for current CHL holders....just ones taking the class after 01/01/16. Texas doesn't require CHL holders to take a class to renew anymore.
 
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