Question about the word "replica" in Texas law.

[Matt M]

Hello. I recently ordered a 1858 remington blackpowder revolver 44 caliber stainless steel 5 1/2" barrel. From what I can understand, it appears that it is legal in Texas to carry a BP replica that is 1898 and older. After looking into the 1858 Remington more, it appears that Remington never made this revolver in a 5 1/2" barrel. So I start to wonder is this what would be defined under Texas law as a replica? From what I understand the part of the gun that is considered to be the firearm is the frame/receiver, so I'm thinking barrel length shouldn't be a factor, but I want to be certain I would not be breaking any Texas law by simply carrying it.

 

[dogtown tom]

muzzle loading firearms are not firearms under Texas law (or Federal law)

PENAL CODE
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 46. WEAPONS
Sec. 46.01. DEFINITIONS.
(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

(4) "Firearm silencer" means any device designed, made, or adapted to muffle the report of a firearm.

(5) "Handgun" means any firearm that is designed, made, or adapted to be fired with one hand.

 

[Matt M]

"A muzzleloader is any firearm that is loaded only through the muzzle. Note: A cap and ball firearm in which the powder and ball are loaded into a cylinder is not a muzzleloader."

https://tpwd.texas.gov/regulations/outdoor-annual/hunting/general-regulations/means-and-methods

 

[Aguila Blanca]

muzzle loading firearms are not firearms under Texas law (or Federal law)

Correct, However, the part of the law you emphasized is what the OP asked about, and your response didn't answer his question.

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

The OP is correct -- Remington never offered the 1858 with a 5-1/2" barrel. Therefore, in the strictest sense, the modern Italian clone with the 5-1/2" barrels is not a "replica of an antique or curio firearm," since it is an adaptation of a firearm that never existed in history. Can there be a "replica" of something that never existed?

I am no longer in Texas, but I know that Cabelas sells the 5-1/2" "replica" 1858s through their catalog and in their store (including the one in my state of residence) just like they handle all black powder revolvers. I think the OP has a valid question, and I don't know that it has ever been definitively answered.

 

[Frank Ettin]

The OP should probably consult a lawyer in Texas knowledgeable about firearms laws. This could be a more complicated question than it appears on the surface.

A black powder "replica" might not be considered a firearm for the purposes of laws relating to the transfer or shipping of firearms. However, a loaded black powder "replica" firearm might still be considered a firearm or a dangerous weapon for the purposes of laws relating to the carrying or use of firearms or dangerous weapons.

The OP's question relates specifically to carrying a black powder revolver -- presumably loaded. A proper answer will require fairly extensive research, including reviewing any possibly applicable case law.

 

[Glenn E. Meyer]

As far as the legalities, you need a lawyer as Frank said.

I am puzzled as to why one wants to carry such outside of some cowboy event unless one is trying to circumvent the law. We have seen folks who were forbidden to have firearms try to carry BP and claim they weren't firearms.

Given the CHL and open carry provisions, if you get the license that would certainly cover carrying the BP gun.

I don't want to ascribe motivations to the OP but these are just thoughts.

Here's a story from a police shooting buddy. He sees a guy carrying a BP revolver in a holster going to enter the park. This is before OC of course. He stops the guy who does the not a gun dance and thus he can go in the park.

The officer says that the park is full of bad people who sell bad things (maybe why the guy was going to go there). The BP guy says he doesn't care and is 'ready'. Later, the law finds the guy beaten up and the BP gun nowhere to be found. OOPS.

 

[rwilson452]

I concur, consult a lawyer. I don't know Texas Law. I heard of a case here in PA where a prohibited person was caught with a BP pistol. He thought it would be OK as most of PA law didn't cover a BP pistol. Whereas under the prohibited person law anything that shoots a projectile is prohibited to him. He was convicted.

 

[Matt M]

I am not a felon or anything of the sort nor am I trying to "circumvent" any law and I find it very insulting that your puzzlement as to why anyone would want to carry a firearm, know the law, and stay within it's boundaries would lead to such a negative deduction. I am inquiring about what the law is. I fail to see how your "police shooting" story has any relevance to what the law in Texas is or how that "police shooting" story is even a police shooting since no police were present at the time of the crime and no shooting took place. As entertaining as your post is Glenn, I did post in the legal section of this forum in order to find people knowledgeable in the law as it pertains to my previous question, not to hear false opinions about who I am, your opinion on the legal carry of firearms, nor to hear real or fictitious stories about thugs.

I sent a message to a lawyer and to a Texas open carry organization. I will let you guys know what they say if/when I get a reply.

Glenn, unfortunately, I'm pretty sure I misread the part about "police shooting buddy". I retract my statements directy pertaining to my misinterpretation of that sentence.

 

[Frank Ettin]

...I find it very insulting that your puzzlement as to why anyone would want to carry a firearm, know the law, and stay within it's boundaries would lead to such a negative deduction....

Nonetheless, your question naturally raises the question of why you would want to carry a black powder, cap-and-ball revolver when it's relatively straight forward in Texas to get a permit which allows one to legally carry a modern, smokeless powder firearm. A more modern firearm is certainly a better choice for routine carry for self defense purposes. If I'm not mistaken, back in the days in which black powder, cap-and-ball revolvers had a reputation for fussiness and high maintenance.

 

[Glenn E. Meyer]

1. I said this:

I don't want to ascribe motivations to the OP but these are just thoughts.

2. It is factually true that folks wanted to avoid laws by using BP guns.

3. The TX CHL laws and the up coming OC laws cover carry of firearms and BP is a nonissue if one is licensed.

 

[Aguila Blanca]

And since the engine recently overheated in my Suzuki Samurai I became curious if I could toss my new BP revolver in my backpack and ride my Harley Sportster to the shooting range.

Loaded or unloaded? Moving an unloaded firearm (or black powder replica) from one place to another in some sort of closed container that doesn't offer you easy access to it may not be "carry" at all -- it may be "transporting." Your initial post didn't describe what is apparently your real question.

With this new information, I more than ever think you need to get an opinion from a Texas attorney who is knowledgeable about Texas firearms laws. I would definitely NOT rely on an opinion from an open carry organization. And especially since what you seem to have in mind is not open carry, and may or may not be carry at all.

 

[Matt M]

I'm not sure why the method of carrying would matter IF it is considered to be a replica, but I agree with you guys that I definitely need a response from a lawyer since this is apparently not common knowledge. I was hoping someone on this forum would know the answer and perhaps even be a lawyer. I am beginning to wonder if this is a question that can only be answered in court, but I don't need to know the answer that badly. Until I get a definitive answer, rest assured, I will carry it in the same legal manner as my cartridge revolvers. Thank you all for the replies so far.

 

[Frank Ettin]

...I was hoping someone on this forum would know the answer and perhaps even be a lawyer....

I am a lawyer, and that is why I won't try to answer your question.

Since I am a lawyer, any answer I give must be professionally sound, and I'm not about to spend a couple of hours doing the research necessary to be professionally confident of the answer. And I'm not licensed in Texas.

 

[Aguila Blanca]

I'm not sure why the method of carrying would matter IF it is considered to be a replica, ...

I'm not, either, but that WAS the essence of your original question.

After my post about "carry" vs. "transport," I followed a link from www.handgunlaw.us to the Texas gun laws, and it seems they refer to vehicle carry as "on or about the person." With that as context, for the case of an automobile I reckon it would include console carry, glovebox carry, front seat carry -- but probably not unloaded-in-a-locked-gun-case-back-in-the-luggage-compartment carry. Switch over to a backpack on a motorcycle, and who knows? If you are wearing the backpack, it is "on your person." Is it accessible? Not very. And if it's not loaded -- like you're taking it to the range to shoot and, like most people taking guns to a range to shoot, you don't load up until you get there -- does it matter?

As you've probably discovered for yourself, the applicable chapter of the Texas statutes seems to be Chapter 46. The definition of "Firearm" for that chapter is:

(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
...
(5) “Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.

So here's what gives rise to your question about replicas. As I wrote in a previous post, I think that's a valid question. Words have meaning, and in law words generally have specific meaning -- especially where they are defined within the law under discussion. The law says "replica" as part of the exception to the definition of a firearm, but it doesn't then define what "replica" means. Can there be such a thing as a replica of something that never existed in prior history? Dunno. IANAL and IDNSAAHIELN.

Then we get to the law about carrying:

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 or watercraft 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 or watercraft 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 or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.​

(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water;
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

As Frank Ettin alluded to, this is the type of question that very well may have to be answered not by reading the law, but by researching case law to see what previous cases may have been tried that address the question. That's why you need a practicing Texas attorney, not an Internet forum.

 

[dakota.potts]

Here's a thought for you. I'm not able to provide reference right now because I don't remember the name of the case.

However, I've read about a guy in Florida who was a convicted felon and owned a muzzle loading rifle for hunting. It was originally considered an antique and a replica of a pre-1898 firearm, but he had modified it (with either a scope or fiber optic rear sight IIRC) and it was found that the modern nature of the sight made it no longer a replica and he was convicted of being a felon in possession of a firearm

 

[Aguila Blanca]

Different state, different gun, different laws. Not much help.

 

[Dreaming100Straight]

You bear the burden of proving it a replica

according to this article. http://www.gun-tests.com/special_re...al-Code-curio-relic-13570-1.html#.Vj6D_vmrSUk

It is very important to remember that the antique and curio language is contained in the statute as an exception to the definition. This means that the person accused of unlawfully carrying a weapon bears the burden to present evidence in court to prove that the gun they were arrested for carrying was an antique or curio manufactured before 1899 or a qualified replica of such a weapon.

 

[Matt M]

I think if I had to argue the point, I would argue that the frame, not the barrel, is what the law defines as a firearm. Then I would disassemble the revolver down to the frame, only show the frame throughout the case, and try to argue that as being a replica. I might even put a hat and sunglasses on the frame and then ask the jury if it is still a replica. But I am no lawyer and I have no desire to put myself at unnecessary risk, even though my opinion is that it should be considered legal by what I know of the law.

 

[JohnKSa]

I think if I had to argue the point, I would argue that the frame, not the barrel, is what the law defines as a firearm. Then I would disassemble the revolver down to the frame, only show the frame throughout the case, and try to argue that as being a replica. I might even put a hat and sunglasses on the frame and then ask the jury if it is still a replica.

This is a terrible strategy. When I say terrible, I mean "terrible" in exactly the same sense that the universe is "big".

A good strategy would be one that didn't involve arguing ANYTHING in court because it is guaranteed to keep you out of court in the first place.

By the way, here's another read of the TX statute involving replicas.

Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.​

The way I read it, to NOT be a firearm it would have to " have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter" in addition to satisfying one or both of the "or" clauses.

 

[Matt M]

Lol, that was not a strategy, but a direct hypothetical response to the previous comment. I thought I made it very obvious that I do in fact plan on staying out of court in the first place.

You do bring up a very interesting point about the wording.