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SANDCREEK
Regular Member
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Posted: Wed Jul 1st, 2009 07:32 pm |
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I just returned from a visit to the Arlington, Tx area 3 days ago. I contracted for a home while there- contract pending & scheduled to close the end of the month.
While there the OC option was excercised with some stressing of the "exception envelope" ["traveling", in direct route to my vehicle, and on premises under my control]. The envelope was briefly "torn" on several occassions & cautiously disregarded the farther into rural West Texas and the Panhandle that I traveled.The Texas " handgun law" is certainly a lawyer's income stimulous plan, because no one really understands it.
It seems , at least on the surface, that the failure to conceal issue only applies to CHL holders. Interestingly the rest of the law makes no distinction between concealed or displayed - simply classifies possession of a handgun as criminal conduct except under specified circumstances. It's obvious [ to me] that the intent of the law Title 10 [46.02] was to address WEAPONS being carried in a manner intended to faciltate criminal purpose as opposed to self defense.
So a non-CHL OC'er is not subject to "intentionally, knowingly, or recklessly fails to conceal" prosecution when wearing a handgun in plain view. Further, if a person licensed under authority of Subchapter H, chapter 411 is wearing a handgun in plain view to begin with -absent of intent or attempt to conceal - no grounds exist for a charge relating to "intentionally, knowingly, or recklessly fails to conceal", because the weapon was worn pursuant to the authority of the Texas Constitution. Obviously this is my legal interpretation and should not be relied upon as professional legal counsel - just offerred up for thought. Perhaps
better not to have a Texas CHL for the time being.
What amazes me is that apparently law enforcement has slowly evolved in it's "enforcement" approach to the "handgun laws" in Texas. The law has been on the books as I understand it since 1871. I guess Wyatt Earp & Johnny Ringo, weren't aware that they were in violation of this UCW law when they were involved in a shooting incident outside that saloon on Concho St in San Angelo during the 1880's. [Not to be confused with the OK Corral affair]
Actually - I suspect that no one outside of the Austin City Limits , Dallas, & Houston even knew it was on the books - or at least had the common sense to recognize that it was directed at CRIMINALS......[..."with a view to prevent crime ."]
I respect the determination of those who wish to bring this to a head - and not tippy-toe around the tulips. Urban areas such as DFW Metroplex would not be my choice for challenging 46.02. Community values are a fair measure of law enforcement and jury disposition. DFW suffers from crime problems that simply don't thrive in rural communities, as well as "big city" arrogance.
From what I hear the remedy is close at hand. The fact still remains that what is needed is thousands of Texans with the cautious determination to begin to press against what consist of a very weak barricade to free excercise of this right, and pressure legislators to change the law. The Texas Constitution clearly protects the lawful bearing/wearing of arms for lawful purpose of defense of one's person.
Magistrates have been known not to "allow" constitutions to be brought into the court record. Self defense is an affirmative defense. The threat of becoming a targeted victim of violent crime is very real in Richardson , recognized by the SCOTUS in Heller as being a possible circumstance at any time -therefore Article 2, section 23 is represented in the courtroom when the affirmative defense of self defense is held up. This defeats application of 46.02 to any LAWFUL purpose for carrying a handgun.
Last edited on Thu Jul 2nd, 2009 11:57 pm by SANDCREEK
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Hillmann
Regular Member
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Posted: Thu Jul 2nd, 2009 05:13 pm |
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I am from Wisconsin so this may be completly diffrent than how things work in Texas.
I was on a jury on a murder trial and when we were given our instructions by the judge he said that we were not to decide if the law was right or wrong but only if the defedent broke the law according to the guidelines we were given. after the trial was over but before we had come up with a verdect the defendint pleaded guilty because if we found her innicent the DA was going to charger her husband with it and keep going untill he got someone convicted( seems very crooked the way I am explaining it but if you were there for the trial you could maby see there point of view. although I disagree with it) But anyway when we were deciding I basicly said that the wholoe trial was a bunch of BS and even if she did it (I think she did) I was voting not guilty no mater what whell any whay after everything was over the asked me to stay behind when the othe jourers left and I got to get a lecture from the Judge about activism and and how it is not my job to judge the law and me aruging back how th whole trial was a bunsch of BS and that if anyone should be on trial it should be the cops, DA, and judge for harrassment under color of the law. Eventully it got around to him claming that he would have callde it a miss trial if I would have voted that wy instead of the defendent pleading guilty. although I don't know if that can be done aftera verdict has been reached.
Basicly my point is you are puting yoursef in the hands of 12 people who probly don't know what is allowed and what is not and the judge will specificly tell them thay are here to judge whether you commided a crime and not to judge the fairness of the law. also the judge probly would call a misstrial if you or your lawyer brought up jury nullification. In short I think if you gow to court with that plan even though constutionly just, you would get SCREWED.
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SANDCREEK
Regular Member
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Posted: Thu Jul 2nd, 2009 07:10 pm |
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| Soooo.....I guess if I decide to excercise my juror nullification.... best not to talk about it - just do it. If one votes "not guilty" based upon their conscience - that's it. They don't have a responsibility to sell their conscience to the other jurors
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Hillmann
Regular Member
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Posted: Thu Jul 2nd, 2009 09:52 pm |
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That is about it. but if we would have delivered a verdict I don't think that it could have been called a miss trial because if it is a houng jury or not guilty verdict it would be double jeporidy to try the defendent agen.
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N00blet45
Regular Member
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Posted: Fri Jul 3rd, 2009 03:39 am |
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Well even if you put not guilty and the judge declared a mistrial at least you wouldn't be like everyone else towing the line. And if you want to think about it in a different way your refusal to convict would buy them a little bit more time.
I would never convict someone for a crime that isn't a crime, if that makes any sense.
That being said I wish to go back to the topic of open carrying in Texas. You should probably try your luck with a long rifle first. Earlier Sec. 46.02 of Texas law was quoted. I just read it again and it makes no mention of firearms, rifles, or shotguns but only of handguns. It may be best to test the waters a bit first by open carrying a shotgun or a rifle. Your chances of being arrested won't go down but since you aren't breaking the law (as far as 46.02 goes) then your chances of fighting it are much greater.
I hold onto a bit of idealism myself and I understand your sentiments. I've taken a different approach though. I refuse to be the lonely soul who gets thrown to the wolves while everyone else enjoys their sodas and cable tv. That means I have to resist in a more private manner until the rest of the population wakes up. If things get to a certain point then I'm sure I'll have my blaze of glory moment but, for me at least, it is too soon.
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orthzar
Regular Member
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Posted: Fri Jul 3rd, 2009 09:21 pm |
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Hillmann, thanks for reminding me of the jury nullification. I have not put a lot of merit into jury nullification, so I may not even mention it. As mentioned earlier, OC of a handgun is a class A misdemeanor, not a felony. As far as I can tell, a jury is not called forward unless a felony is being charged, so I may never deal with a jury at all.
N00blet45, you may have persuaded me to test the waters first by being armed with a rifle on this walk. I think a lever-action would be best to carry, because we live in Texas, and a lever-action has that cowboy look. A bolt-action has that assassin look, and I dont't want to alter my Wingmaster.
Would anyone in the Dallas area happen to have a lever-action I can borrow, buy or trade for?
I have a Wingmaster 870 and a M91/30 Mosin Nagant, both in used but good condition.
If there are no takers by tomorrow morning(~7:00am), I will go to the Fort Worth gun show and buy a used lever-action for as inexpensive as possible. I just need a sling for it and I will be set to go.
Cheers, my countrymen
Edit:
I forgot that their is no Gun show this weekend, so my offer in bold still stands.
Last edited on Fri Jul 3rd, 2009 09:31 pm by orthzar
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SANDCREEK
Regular Member
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Posted: Sat Jul 4th, 2009 12:50 am |
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Frustration with the existing wording of Title 10, section 46.02 [UNLAWFUL- carrying of weapons] is understandable given the listing of "handgun" among the weapons.
I have a bent toward the philosophical approach I guess because a baseball bat, a 12 inch butcher knife just purchased at Walmart carries the same Class A misdemeanor classification. Why am I not in fear of arrest and prosecution while walking across the Walmart parking lot to my vehicle with my 12 inch butcher knife & the ball bat? Because there is no UNLAWFUL intent or purpose involved in my carry of these items.
This is where Article I. section 23 of the Texas Constitution comes into play.
" 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 Texas Constitution PROTECTS every citizen's right to LAWFULLY keep and bear ARMS [ firearms irrespective of ergonomic design , bladed weapons of any size, clubs, including baseball bats]
Now here comes the "trick question" - Which LAW is predominant - Article I, section 23 of the Texas Constitution - or Title 10, section 46.02 ? Ofcourse the Texas Constitution predominates ! Therefore section 46.02 is either A] in conflict with the Constitution [hence null & void] , or B] 46.02 must be read within the framework of Article I, section 23. Obviously Sec 46.02 MUST be read to be in harmony with the right to keep and bear arms in the LAWFUL LAWFUL LAWFUL defense of one's person.
Just as the recently enacted provision allowing for UNLICENSED CONCEALED carry of a handgun while INSIDE ONE'S VEHICLE , or OPEN CARRY in direct route to one's vehicle presumes LAWFUL DEFENSE - NOT CRIMINAL CONDUCT.
As long as you [ OR I ] - OR ANY OTHER CITIZEN is wearing a handgun in plain view "in the LAWFUL defense of our person such BEARING [as in PLAIN VIEW]of a handgun is protected under the authority of the Texas Constitution.
Until the legislature amends the statute to clarify the distinction between LAWFUL vs UNLAWFUL context the provision of 46.02 MUST be read to apply only to criminal conduct.
I know - I can hear the resounding echos by the nay sayers of "Good luck selling that one to the judge, Dude. "
Actually I doubt that any selling will be necessary - either to a LEO, or a judge. In the first place I have no intention or desire to aimlessly parade around wearing a holstered handgun in plain view or carrying a long gun publicly in Texas anymore than I do in Colorado. Carrying a rifle or shotgun around publicly WILL GET LEO attention . I have worn a holstered handgun in plain view [and Plainview] in Texas on many occassions. Last time was last Friday morning in Arlington Texas in the parking lot of a convenience store 1 block west of Cooper. I had to exit my vehicle to read the street sign , and I chose not to cover up, nor did I "alarm", "threaten", "menace" or otherwise disturb the peace. Likewise, neither was I approached by any hooded cockroaches seeking to "borrow" my ATM card.
No man can tell another how to live or what to do. I assume responsibility for my saftey and the safety of my wife. I also assume responsibility for dealing with any system of government that becomes oppressive. If I'm contacted by the POPO over the sight of a holstered HG in plain view I will just have to deal with it. I doubt that the encounter will result in my arrest, but like many others are expressing -I will not surrender my god given right to self defense or waive the protection afforded by TEXAS LAW [the Texas Constitution] that protects that right.
Folks in TEXAS have a reputation for not tolerating oppression. It's time to start asserting this constitutionally protected right. You bet - when I move down there I will. Part & parcel of CHANGING bad law into good law is REJECTING the bad law. This has to coincide with any lobbying efforts in Austin. This very same "Gremlin" sec 46.02 was wholesale rejected prior to enactment of the CHL legislation in 1995. All the CHL changed was that folks could enjoy carrying handguns concealed "legally".
Last edited on Sat Jul 4th, 2009 01:44 am by SANDCREEK
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orthzar
Regular Member
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Posted: Sat Jul 4th, 2009 04:37 am |
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Then long guns are out of the question, because that would get the negative attention of the police. Makes sense to me.
While carrying a handgun on my hip, I will make it known to any police officer(s) that I have lawful intent, which is intent to defend myself against any violent aggressors. If I still wind up in court, I will testifiy of such.
So by this logic, OC is definitively legal and lawful, so long as lawful intent is present, such as intent to defend one's life. The only issue is that the police don't appear to readily know this. If the State Penal Code were to be changed to include the mention that unlawful intent is necessary for OC to be a crime, then the police would have to prove unlawful intent for them to be able to lawfully detain anyone for open carry.
SANDCREEK wrote:
Until the legislature amends the statute to clarify the distinction between LAWFUL vs UNLAWFUL context the provision of 46.02 MUST be read to apply only to criminal conduct.
The legislature had two sessions, and they wasted my vote, so I don't see such an amendment until around 2012, if ever.
I have to make sure my dad understands all of this, so that he can explain it to my mom when she asks. I will write an essay or something. Any additional points that coroborate that OC is indeed lawful in Texas would be helpful. Any logical reasons to say that OC is unlawful in Texas are also greatly appreciated.
Pray for me, my countrymen
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SANDCREEK
Regular Member
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Posted: Sat Jul 4th, 2009 06:08 am |
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ORTHZAR : Like I've said - no man can tell another WHAT to do or HOW to go about it. I admire your determination to challenge the perceptions of what some folks THINK the law is. My own protestations of how the law SHOULD BE interpreted ARE NOT guaranteed TO BE SHARED BY OTHERS - especially members of the criminal justice system.
Please be careful- the movement to regain freedom on this issue needs SOLDIERS-not martyrs. Freedom was won in this nation 230 years ago in large part by hit & run tactics, stealth, and surviving to fight another day. We needs folks to just get out there and SUCCESSFULLY excercise their constitutionally protected right - not to serve as cannon fodder.
I would incourage attention be given to proceeding with due respect for the perceptions of others in the public , wisely chosen location, limit exposure to a short duration, and project a deliberate presentation.
Remember the fire ant did not invade Texas overnight, and the infringement upon our right to keep & bear arms transpired over many decades.
Wishing you success.
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N00blet45
Regular Member
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Posted: Sat Jul 4th, 2009 06:10 am |
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orthzar wrote: Then long guns are out of the question, because that would get the negative attention of the police. Makes sense to me.
While carrying a handgun on my hip, I will make it known to any police officer(s) that I have lawful intent, which is intent to defend myself against any violent aggressors. If I still wind up in court, I will testifiy of such.
I understand on reality but not necessarily on principle. Granted a rifle slung over your shoulder is going to have the police all over you but a pistol carried in the open by someone under twenty-one is going to draw negative attention too I'm sure.
I wouldn't tell the officer anything. My first rule is to never talk to the police, whether I'm armed or not, whether I'm a suspect or not.
I would say use a voice recorder too, as long as its use complies with Texas law.
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orthzar
Regular Member
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Posted: Sat Jul 4th, 2009 03:11 pm |
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SANDCREEK wrote: I would incourage attention be given to proceeding with due respect for the perceptions of others in the public , wisely chosen location, limit exposure to a short duration, and project a deliberate presentation.
Considering this, I remember that I would be walking through a school zone, and then across a very high traffic intersection.
N00blet45 wrote:
Granted a rifle slung over your shoulder is going to have the police all over you but a pistol carried in the open by someone under twenty-one is going to draw negative attention too I'm sure.
I must agree.
Considering both of these, I wonder if I should reschedule. The times are getting rough, and an interloper may unwelcome.
Also, would a misdemeanor even get me to any court that could nullify State law? If no, then OC'ing would be of no use, and only Governor Perry could do anything. I would prefer to not do something that is a waste of time, and a potential risk of life and limb.
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SANDCREEK
Regular Member
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Posted: Sat Jul 4th, 2009 04:25 pm |
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Actually a CLASS A misdemeanor classification is a serious CHARGE of CRIMINAL conduct only one notch below a felony- frequently applied in assault cases -and considered serious enough to affect eligibility for a CHL .
As in Colorado - I assume prosecution would have the BURDEN OF PROOF to establish that a CITIZEN was BEARING a handgun for other than the LAWFUL purpose of DEFENSE. You DO have the right to a jury trial by the way.
The predominant challenge appears to be in EDUCATING the general public. We are activists 80 % of the population isn't even concerned about this issue. They are happily asleep in "Sheepville" . The anti-2A Brady Bunch will oppose OC - that's to be expected. We have to seek out ways to communicate the value of excercising this right. Very few citizens will ever excercise OC. , but those that do so will significantly reduce levels of crime in their community.
I consider the auto seatbelt issue analogous to this issue. I installed seatbelts in my 1962 VW back in 1968 - not because of some "law" - but in order to protect my family & myself. I love motorcycles , but every time I see somebody riding one it galls me that THEY are exempt from being cited & fined for not wearing a seatbelt. Seatbelt use should be incouraged but not required for adults. It has -as expected - become another ruse for revenue collection.
The OC issue is as much about limiting the out of control expansion of government power as it is about restoring respect for the rights of citizenship. There is public pressure to expand government even more - making it absolutely necessary to counter that pressure.
Government pursuaded the public to enter into a disarmament experiment under the assurance of governmental "protection". Guess what - that "contract" has been seriously breached. The same government is scared to death to go after the gang-bangers - which might actually reduce the criminal threat in our communities.
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orthzar
Regular Member
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Posted: Sat Jul 4th, 2009 05:23 pm |
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I am just wondering whether it is worth the trouble. I guess I am getting cold feet. It must be the effect of my upbringing saying that being armed is more or less wrong.
I bet if I try this, my parents would do their best to stop me. My dad has told me several times to NEVER carry a loaded gun, even though he told me that an unloaded gun is utterly useless for self-defense. Sounds like he doesn't want me to use a gun in self-defense, only for recreational purposes.
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N00blet45
Regular Member
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Posted: Sat Jul 4th, 2009 05:55 pm |
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It'd be great if you could find like-minded individuals in Texas. However I get the vibe that most believe it is illegal to open carry and most citizens try to stay within the law, even when the law is against them.
Maybe it's just me but I don't particularly like the term law-abiding citizen because in a lot of places that means disarmed citizen. As well most of the Germans who kept quiet and didn't resist the NAZIs were also law-abiding citizens. Law-abiding citizen really just means that they'll do what the state tells them to. A more accurate term would be moral citizen.
I digress though.
I understand where you are coming from with your parents. In the course of one discussion my step-father actually said that he would not bust me out of jail if I was arrested for open carrying even though there was no law against it. Lots of support there, won't even break your kid out of jail if he is arrested even though he isn't breaking the law. My mom talked to me afterwards in private and told me that she'd get me out of jail, especially if I wasn't breaking the law.
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orthzar
Regular Member
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Posted: Sat Jul 4th, 2009 07:36 pm |
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Well, N00blet45, you had the support of at least one of your parents. I mentioned to my mom about bringing a gun with me if I go to Maryland with the family. She was immediately opposed, and I asked why it was wrong, and she dodged the question. I told her that DC is about as dangerous as Iraq, and still no. Looks like I ain't going to Maryland or DC anytime soon. Virginia would be nice to visit, though.
I hate to have wasted anyone's time, but if I go ahead and OC today, then there's no telling how my mom would react, and my dad may not be able to restrain her.
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N00blet45
Regular Member
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Posted: Sun Jul 5th, 2009 01:42 am |
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Well if you ever find yourself in the Peach State send me a message and you'll have at least someone to share the cell with.
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jarodm20
Lone Star Veteran
| Joined: | Mon Jul 7th, 2008 |
| Location: | Lubbock, Texas USA |
| Posts: | 87 |
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Posted: Sun Jul 5th, 2009 03:03 am |
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| Orthzar, I hope you're out having a good time celebrating Independence Day, and not in jail. Let us know how it went, if you decided to go through with it.
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KBCraig
Regular Member
| Joined: | Tue Aug 7th, 2007 |
| Location: | Northeast Texas |
| Posts: | 1497 |
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Posted: Sun Jul 5th, 2009 09:12 am |
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N00blet45 wrote: I would never convict someone for a crime that isn't a crime, if that makes any sense.
It makes perfect sense, and thank you, thank you, thank you for having such sensibility. We need more fully informed jurors like yourself!
I have served on one jury, and that was a medical malpractice suit in a federal court; hardly the opportunity to nullify any laws (but I did prevent the other 11 jurors from awarding the lawsuit lotto they were first inclined towards).
If I ever serve on a criminal jury, anything from speeding to capital murder, this will be my personal test:
- Did the accused commit the act that is alleged, beyond any reasonable doubt?
- Is that act a crime?
- Should it be?
- If it should be, is it authorized by the Constitution?
Only if I can answer "yes" to all four questions, can I consider voting "guilty".
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tju1973
Regular Member
| Joined: | Mon Feb 25th, 2008 |
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| Posts: | 23 |
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Posted: Mon Jul 6th, 2009 03:29 am |
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I respect your moxy and intent, but I question the sanity of doing something that will surely get you in the pokey--
Tis better to run and live to fight anothr day, than to become a martyr..
Good luck Brother..
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SANDCREEK
Regular Member
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Posted: Mon Jul 6th, 2009 10:39 pm |
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Trying to understand the law in Texas governing handguns will result in premature hair loss.
It's a challenge to try and keep a sharp focus on the legal situation when phrases like "Texas BAN on OC" are applied to legal status of wearing/carrying a handgun.
The only "OC ban" that I see any evidence of is in regard to persons licenced under Subchapter H, chapter 411 - CHL holders.[ did I get it right this time?]. Other than this provision non-licensees violate Title 10, 46.02 when they carry/wear a handgun unless they fall under certain exceptions. Concealed/ openly carried - it matters not - unless you have been issued a CHL - then you can't OC [except under certain conditions]
The big 900 lb gorilla among the "exceptions" [ traveling, on own property, or premises under one's control,hunting/sporting, purchase of handgun , etc, etc] IS -
The TEXAS CONSTITUTION is the predominant law of Texas, and guarantees every citizen in Texas the right to keep & bear arms in defense of their person. The Texas Constitution doesn't make exception for handguns in the provision guaranteeing respect for the right to keep & bear arms in self defense.
The Texas Constitution does not specify any or all possible THREATS a citizen might conceivably need to defend themselves from [rabid coyotes, mountain lions, vicious dogs, black bears (YEP - Texas has them too)- or human threat - so we may assume the determination of what to defend against is up to the citizen.
The conundrum of this excercise in nonsense is that the lawfully open carried handgun pretty much guarantees that our citizen will NOT BE THREATENED -by human animals anyway - and therefore not frequently required to use the handgun in defense of himself beyond WEARING IT IN THE HOLSTER.
The bearing [wearing/carrying] protected by the Texas Constitution doesn't differentiate between concealed or open carry either. The concealed carry license was intended to by-pass the generally recognized nuisance of the presumed "ban" on handguns posed by Title 10, 46.02. It's also interesting that Texas penal code does not directly address "concealed carry" - as does say Colorado revised statutes. There's alot of work to be done by the next Texas legislature in cleaning up this legal mess.
Last edited on Tue Jul 7th, 2009 12:12 am by SANDCREEK
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