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OpenCarry.org - Discussion Forum > Stories From The States > Texas > OC on 4th of July to challenge ban on OC
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| OpenCarry.org - Discussion Forum > Stories From The States > Texas > OC on 4th of July to challenge ban on OC
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orthzar Regular Member
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I have been considering this for the past month, and seeing that Independence day is approaching, I must decide soon. I realize that 10 years or $10,000 are the possible consequences. I also realize that Freedom is not free. If I am confronted by a police officer and brought to court, I would follow the guidelines of this article: http://www.lawfulgov.org/proact.htm If no officer bothers me on the walk, then so be it. Regardless, my goal is to go to court to challenge Penal Code Title 10 Sec. 46.02 (a-1) (1), if not all of Section 46.02. I would defend my action as being Constitutionally guaranteed by the Second Amendment to the US Constitution, which is that an individual's right to be armed shall not be infringed. I would also remind the Jury that they have the authority to nullify an act if they deem that act to be unlawful: http://en.wikipedia.org/wiki/Jury_nullification "All laws which are repugnant to the Constitution are null and void" Marbury v Madison 5 US (2Cranch) 137, 174, 176 (1803) My case would hinge upon my right to be armed. The Constitution declares that the right of the people to be armed shall not be infringed. I combine 'to keep and bear' into 'be armed', to point out that being armed, regardless of manner, is Constitutionally protected. Banning and licensing are two simple methods of infringing upon rights. Also, the Constitution is a contract between the States through which they delegate certain powers to the Federal Republic, and in return, the Federal Republic must protect the States and the People of the United States of America. Being a citizen of the USA, I enjoy various protections of my rights, of which the right to be armed is clearly safe-guarded by 2A. I see the risk of unconstitutional imprisonment will be present, but I also remember that liberty is an invigorating contest and not an entitlement program. What do ya'll think? |
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lockman State Researcher 
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Is 2A incoopoated in th 5th circuit? Is the Texas Constituion strong on 2A as to reasonably risk a felony? |
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Shawn Regular Member
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orthzar wrote: I have been considering this for the past month, and seeing that Independence day is approaching, I must decide soon. |
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DKSuddeth Regular Member 
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I hope you're going to OC a long gun, because if you go with a handgun I fear you will be arrested, charged, and end up on trial. If you have the money to afford a super attorney and are willing to suffer the consequences of a conviction, then I wish you all the luck in the world. The problem you will face is this: Jury trial will convict you. Richardson and North Dallas, mostly liberal and pro conceal carry, will not care that 46.02 violates the 2nd Amendment. You are a criminal waiting to happen unless you have your CHL. You will never be allowed to present the idea of Jury Nullification to 12 people judging you.......let me repeat that. You will NEVER be allowed to argue nullification to a jury. The judge will strike that argument, remind the jury that he decides what the law is and means and that the jury is only their to decide on facts of the case. You can request a bench trial and argue marbury v. madison, murdock v. PA, and US v Emerson til the cows come home. A state court judge is going to convict you because his superiors have not instructed him that the 2nd Amendment has been incorporated via the 14th Amendment. You can take your convictions up to the Appelate courts and argue those same where you MIGHT have a better chance of succeeding.......after thousands of your dollars have been spent on defense. The 5th circuit might be gun friendly, but they are also sticklers for stare decisis, which is why they decided Emerson the way that they did. good luck if you do. I'll be rooting for you. |
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jarodm20 Lone Star Veteran 
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Well now that I know what jury nullification is (I had a good read on wikipedia), I hope that if you do get charged with a crime, the members of the jury are aware of this power and that they have the conviction to use it, though the judge would likely try to remove them for it. I suggest everyone read the article on Jury Nullification and remember it when you are picked one day for jury duty. I must say Orthzar, I'm very impressed that you have the conviction to actually stand up for your rights, risking financial loss and imprisonment, instead of just talking about it like myself and others. I'll be praying for you. |
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GWbiker Regular Member 
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orthzar wrote: I have been considering this for the past month, and seeing that Independence day is approaching, I must decide soon. I wish you the best of luck. It's a confusing mess over there..... I've read the Texas 1876 Bill OF Rights, as section #23 stated the "Legislature could regulate wearing of firearms to prevent crime". Must have been a hell of a lot of crime in Texas in 1876.  Section #1 stated the Texas 1876 Bill OF Rights is......"Subject only to the Constitution of the United States". Uh, I guess they missed that part of the 2nd amendment: "Keep and bear arms shall not be infringed". Think I'll stay in Arizona...  |
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KBCraig Regular Member
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orthzar wrote: I realize that 10 years or $10,000 are the possible consequences. I also realize that Freedom is not free. Well, no, the penalties are nowhere near that strict. UCW is a Class A misdemeanor, maximum penalty 1 year in jail. Here is the law: Sec. 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 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 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; (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. (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. Sec. 46.15. NONAPPLICABILITY. (b) Section 46.02 does not apply to a person who: ( . . . ) (3) is traveling If you want to play the loophole game, you could park two vehicles that you own or control, a block apart, and walk continuously back and forth directly between them while OCing. The Motorist Protection Act of 2007 allows non-CHLs to carry concealed in their cars, but there's no requirement that the gun be concealed while en route to the car. Or, you could use the traveling exemption, or the exemption for engaging in, or being en route to, a sporting activity requiring use of the gun. You can legally OC while going to the firing range. |
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orthzar Regular Member
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lockman wrote: Is 2A incoopoated in th 5th circuit? Is the Texas Constituion strong on 2A as to reasonably risk a felony? Because the Constitution is a contract between the States, all States of the Union are bound by it. My dad was surprised when I told him that, and he conveyed to me that that idea made a lot of sense to him. If the Constitution is not a contract, however, then not one single State is bound to the Union, and no Union currently exists between the States. This idea that the Consitution is contractual is likely fearsome to Liberals and activist judges, because this means that every part of the Constitution is de facto incorporated to the States, including the Bill of Rights. As far as U.S. vs. Miller, Miller failed to show up at court and was later killed. I plan on showing up to court. So if I make it to court, then I am already better off than Miller. Also, Rosa Parks won her case despite many other people losing similar cases before hers. I probably should mention that I am 19 years old and currently own a shotgun, a rifle, and a cap-and-ball revolver, all of which are far too large to conceal. In other words, my only handgun is a hog leg and I am too young to buy a CHL. I plan to represent myself in court. I plan on being a belligerent claimant in person: The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It can not be retained by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction. He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus. Any action against anything of despotic nature should involve the belligerent and steadfast efforts of the just. Passive resistance is for hippies. (Note: Gandhi seems to me to have been actively resistant not passive.) Thanks KBCraig for correcting me. I don't remember exactly where I got the 10 years/$10,000 thing, but upon reading what a Class A misdemeanor is, I am now confident that no matter the outcome, I will never be called a felon. I wonder if Governor Perry would be interested in supporting me. Someone on this forum mentioned that Perry was pro-OC. Nothing like having a State Governor on your side to aid your case. I just want to be armed without the threat of jail time. |
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Chili Regular Member
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How does that old saying go? A person who represents himself has a fool for a client. KiddingI actually filed suit pro se in family court and won custody of my son. That said, good luck. I don't know if I would be willing to make that decision now, let alone at 19 with my entire adult life ahead of me. Being a Texan I sure would be thrilled to benefit from your work. :p |
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DopaVash Founder's Club Member 
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I admire your courage, however, with the question of incorporation of 2A under 14A looming in the courts as it is, this is a fight that would be best had at a latter date. The Supreme Court of the US will almost certainly incorporate 2A, judging from Heller. Sotomayor won't change anything, considering who she's replacing. If you're going to man up and fight the system, choose your battles wisely. You have all our support, but, you're still fighting the behemoth, and you're going to need all the help you can get. |
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cloudcroft Activist Member
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"How does that old saying go? A person who represents himself has a fool for a client" -- Chili No, it doesn't go that way, it goes "A LAWYER who represents himself... So if you're not a lawyer this does not apply, even if that saying WERE true. orthzar will be fine... -- John D. Last edited on Sat Jun 27th, 2009 03:36 am by cloudcroft |
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orthzar Regular Member
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DopaVash wrote: I admire your courage, however, with the question of incorporation of 2A under 14A looming in the courts as it is, this is a fight that would be best had at a latter date. The Supreme Court of the US will almost certainly incorporate 2A, judging from Heller. Sotomayor won't change anything, considering who she's replacing. If you're going to man up and fight the system, choose your battles wisely. You have all our support, but, you're still fighting the behemoth, and you're going to need all the help you can get. I believe it was Thomas Paine that said, "What we obtain too cheap, we esteem too lightly; it is dearness only that gives everything its value." I agree that I should be choosing my battles wisely. However, letting someone else fight my battles instead of me sounds like cowardice. Additionally, "almost certainly" is not sufficient reason to stand by and hope for success. My dad said that I should "pray like it depends on God, and work like it depends on me." I don't remember who said this, but I believe it goes like this: "who can fail when they have God on their side?" "The strength and power of despotism consists wholly in the fear of resistance."(Thomas Paine) I take that to mean that the despotism has strength and power so long as the people are afraid to resist it. "Tolerance is the last virtue of a dieing society."(Aristotle) I refuse to tolerate what is utterly repugnant to my very manhood. Whosoever tolerates despotism of any kind holds their manhood to be cheap and worthless. I will demand that the court prove that the free exercise of a single right constitutes a crime and that the free exercise of being armed is also a crime. If the court is unable to prove that, then no charges may be held against me. No loopholes, no analogies, and no complicated arguments are necessary. I would have the jury and, hopefully, some of my fellow Americans as my witness, if the court shows any corruption by declaring anything short of acquittal on all charges. cloudcroft wrote: "How does that old saying go? A person who represents himself has a fool for a client" -- Chili I wonder if our Founding Fathers had this kind of confident support back in 1776. cheers, my countrymen |
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cloudcroft Activist Member
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orthzar, Yes, America has gotten soft, the "men" emasculated and the "women" masculated (and many kids smart-assed delinquents). Look at all the fools mourning the death of that pervert gayboy pedophile Michael Jackson for example (good riddance)...that says plenty of "America" nowadays. Shameful. No wonder we are a global joke and hated in many places...and too often the ridicule is well-deserved. As for the courts you will be facing, perhaps the burden of proof will be on YOU to show you DO have a right to carry, not the courts having the burden of proof to show you DO NOT, so you might not legally be able to demand THEY prove anything. If you CAN demand they do that, then good, but if the burden of proof is on you, you have much more work to do (and legal expense). Regardless, I agree with your sentiments 100%. And I believe that the "permit system" has been illegal (in every state that has one) since EVER SINCE DAY ONE (how many decades ago was that?) and don't know WHY it has not been seriously challenged in all this time. And sorry anti-gun states such as Hawaii -- which do not allow OC but have a "may issue" CC system (yet they never issue so they may as well not have ANY legal way to carry) -- how THAT has been allowed to stand all this time, either. I agree with you that all this is JUST PLAIN WRONG and it DOES need to be changed, but I gave up long ago on anything changing "within the system." Yes, I have thought a FEDERAL test case is needed -- as we need pro-gun freedoms to apply NATION-WIDE, not just in SOME states, since ALL Americans should have the same rights) -- but "justice" is so perverted (upside down) in this country I have doubts re: getting what's RIGHT recongized and made into law will ever happen. So I've come to think that only a Culture War (or Civil War II) would bring about REAL "change" even though I don't see Americans -- I mean the weak-willed watered-down versions we have today comparred to those in our Founding Fathers' days -- ever standing up and doing that on the RKBA issue or any other important issue (like moral issues). I've only see "conservative" protests about finances (Tea Parties) so apparently, as long as most "conservative" Americans have their finances in order, they don't care about other issues. Sad. Whatever, if you proceed with your noble quest, think it through and try to anticipate all responses (tactics) the courts will use so you can have plans re: how you will handle them. Be careful out there and I admire you for putting yourself (personal freedom and finances) on the line. -- John D. Last edited on Sat Jun 27th, 2009 06:13 pm by cloudcroft |
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Willing_2_B_Free Regular Member
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The Constitution of the United States is ONLY a "valid" as the Moral Constitution of its citizens. Enough said on that point. Will you be disclosing the location in advance? Also, wouldn't your arrest need to be the whole point? Otherwise you have created no opportunity for change. If you are actually serious, there should be an advanced press release so that you could be arrested as soon as you appeared with the weapon. Thereby preventing an accusation of any other "crime" having taken place. Would you like to speak with an attorney regarding how to conduct yourself throughout the entire ordeal? I would suggest having a video/camera crew there to cover the entire event from start to finish. Thoughts? |
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cloudcroft Activist Member
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True: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” -- John Adams. ...which means we are in big trouble nowadays since things have gone downhill in that respect since his time. -- John D. |
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orthzar Regular Member
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cloudcroft wrote:
Remember, I am innocent until proven guilty. If the court holds that I am guilty and must prove my innocence, then the court is truly corrupt. "Guilty until proven otherwise" is the mindset of a bureaucracy, which is how the police departments, at least in the cities, tend to think and work. After reading an article in a Cowboy-related magazine, it is on. The artcile showed that the men of the range were true men. No one held their freedom over them to jump at, which is what the Texas Legislature is doing, they just acted freely and morally. Cowboys did not fear death or even ridicule. I will walk from my house to the Burger Street near the intersection of Beltline and 75. It is a crying shame thay I, of all people, am the first to publicly challenge the State's ban on OC by acting against it. |
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cloudcroft Activist Member
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I think that "Innocent until proven guilty" became mere words long ago...along with "liberty and justice for all." -- John D. Last edited on Sun Jun 28th, 2009 11:59 pm by cloudcroft |
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DopaVash Founder's Club Member
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Your stark Idealism will get you in trouble. That's not to say that one shouldn't be an idealist; true idealism is something this country lacks in a major way. However, one's actions should never be strictly based on idealism alone. Actions must be done with pragmatism and reason, or else the push back will damage whatever cause you champion. If you feel it a cowardice to not wait out the ruling on incorporation, then perhaps you should get involved in that cause. There's no cowardice in waiting a short period of time to increase your chances of success. |
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orthzar Regular Member
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OK, thanks to ya'll for your kind responses, and to the authors of any and all future responses. I believe I now know how I will go about OC'ing legally and lawfully, though it may not be on Independence Day. If this works, then I will never have to fear the police when I OC. I haven't written out the precise process yet, but I will in effect be using contract law to produce an Open Carry license for me and me alone, which I might apply wherever I go in America, not including private property of course. This should sound absurd to anyone with "modern sensibilities", but you don't have to worry about my safety. I promise you that I will be fine. Again, I have not actually done anything yet, and besides what I plan on now doing will be perfectly legitimate, because I would be in contract with the State of Texas to Open Carry a handgun. I know it is absurd, but just think for a minute. If two or more entities enter into a contract with each other, all are lawfully bound by that contract. So then I will enter into contract with the State of Texas(I don't know the exact person or office yet, probably the Office of the Governor of Texas), which will, in final effect, lawfully hinder anyone from preventing me from OC'ing in public. For ya'll's viewing pleasure, I will provide a copy of the contract here once I have it prepared to send off to some part of the State of Texas. For some strange reason, I find this very amusing. It was almost starring me in the face. Just enter into contract. Cheers, my countrymen |
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orthzar Regular Member
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orthzar wrote: OK, thanks to ya'll for your kind responses, and to the authors of any and all future responses. I believe I now know how I will go about OC'ing legally and lawfully, though it may not be on Independence Day. The quoted post is merely an idea. I guess I am flip-flopping on something that I should not be. More or less, I now declare a call to arms. The only true crime is the infringement on the life, liberty, property, or rights of another living soul. Every ban on OC or CC is a statute that no human is bound to obey. If you pay the fine, you are admitting that another human can be a superior authority to you, when that is not possible.(first line in Wikipedia page on Fines) Only God is superior to you, and all humans are equal to you so long as you do not infringe on the life, libert, property, or rights of another living soul. Demand that everyone, including police, to talk across to you, not donw to you. I will repeat it. I declare a call to arms. OC or CC everywhere you go, except on private property which the owner has told you to not enter. Since the only sign of liberty is to be armed, the unarmed are not free. I promise you that I will die free, one way or another, with or without support. You are only truely free, if you are armed. Therefore from this post on, I will be armed. So, watch out, I will enforce my rights with some sort of arm, likely a gun. I know that my life is worth defending; is yours? I read this article, http://keepandbeararms.com/information/XcIBViewItem.asp?ID=3195 and it was very helpful. The next arm I will purchase will be a .38 special revolver. I just need to find a used one. Enforce your liberty, my countrymen. |
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SANDCREEK Regular Member 
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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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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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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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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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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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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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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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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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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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orthzar wrote: Then long guns are out of the question, because that would get the negative attention of the police. Makes sense to me. 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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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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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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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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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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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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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
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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
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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
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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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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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CommonMan101 Regular Member
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The last jury I sat on the judge made it perfectly clear that whatever we decide as a jury he (the judge), or anyone else, can do nothing about it as the jury is where the real power is. "NO MATTER WHAT THE LAW SAYS" I think this was another way of refering to the jury nullification. I think it lives and breathes but maybe they (courts etc.) don't want to hear the language thrown about because it has the possibility of turning the justice system on it's head. I think they want to suppress that knowledge from the general public. |
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SANDCREEK Regular Member
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Attorney General Abbott has recently joined in an amicus brief in a case involving an Illinois resident who is prohibited by law from carrying a handgun for self defense. In this brief the Texas Attorney General joins in submitting before the court that the 2nd Amendment of the U.S. Constitution guarantees residents of all 50 states the right to be able to protect themselves by carrying a handgun. I appreciate the Texas Attorney General stepping forward to defend the right to keep and bear arms in Illinois. Unfortunately the right to keep and bear arms continues to be similarly infringed upon in Texas. I am referring to the unconstitutional application of Title 10, section 46.02 of the Texas Penal Code to situations clearly protected by Article I, section 23 of the Texas Constitution, to wit : "Every citizen shall have the right to keep and bear arms in defense of himself, or the State, but the legislature shall have power to regulate the wearing of arms with a view to prevent crime." Article I, section 23 does not provide exception for handguns in the exercise of this right of citizenship. Therefore a citizen may reasonably assume that Title 10 , section 46.02 must be intended to address the criminal use of weapons as opposed to the constitutionally protected right of lawful defense of one's person. Furthermore, a citizen may reasonably conclude that the wearing of a holstered handgun in plain view constitutes the exercise of a protected civil right in the State of Texas. Similarly, a provision of Title 10, section 46.035 regarding failure to conceal a handgun by a person licensed under authority of Subchapter H, chapter 411 (Concealed Handgun License) also violates the spirit of the Texas Constitution's affirmation of the right to keep and bear arms. Existing provisions of Title 9, section 42.01 adequately address disorderly conduct, menacing, and otherwise unlawful display or use of weapons. Urge Governor Perry to apply the authority of his office to facilitate the restoration of this right of citizenship in Texas. The Governor can request a legal opinion from the AG. Last edited on Wed Jul 8th, 2009 02:21 am by SANDCREEK |
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gunsfreak4791 Regular Member
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So have we heard back from the Orignal Poster. Is he in Jail or Did he go through with the OC on the Fourth Of July |
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Xone God Regular Member 
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^^BUMP^^ Orthzar? havent heard from you since the fourth of July. I am sure I am not the only one on OCDO feeling worried. ..X.. |
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smoking357 Banned 
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orthzar wrote:All laws which are repugnant to the Constitution are null and void" Marbury v Madison 5 US (2Cranch) 137, 174, 176 (1803) All laws that are repugnant to John Marshall are null and void. |
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gunsfreak4791 Regular Member
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The OP Has not returned so disapointed. I wanted to hear the outcome. |
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orthzar Regular Member
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I am not in jail, thankfully. I'm sorry, I thought I made it clear that I decided not to OC on the 4th. So I did not. After some more reading in various other places, I decided I would have been cannon fodder for the court system, even though I would have OC'ed with a blackpowder revolver. Plus, my parents would have become furious to say the least. Also, I apologize for taking so long to respond. I am not exactly as organized as I should be. |
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gunsfreak4791 Regular Member
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Glad your okay. |
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mike75925 Regular Member
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when i got out of the navy, nearly eight years ago, i wished to do the same and have on a few occasions. i spent three months in jail for contempt while at court for a resisting search and fail to id. i went to the law library as often as i could. they saw my thirst for knowledge and disallowed my requests for reading. Black's law dictionary is very informative. judges no longer make an oath to uphold the constitution, rather they take it on color of law. officers interpret laws their own way and judges tend to agree with them. did you know that you can only drink during certain hours on certain days, even in your own yard? there's a law about clubs and other places that are public. your yard is to be considered public if you do not have up a four foot fence. yes i know, retarded! title 10 of the US code states who are in the militia. scott v. sanford, delaware v. prouse, marbury v. madison, printz v. US, miller v. texas, bennett v. boggs 1 baldw 60, hertado v. california 110 US 516, davis v. wechsler 263 US 22 at 24, and the old standby miranda v. arizona, miller v. US, shapiro v.thompson 394 US 618 (1969), US v. guest. their are far more, but i no longer have them at hand. directly from the BASIC MILITARY REQUIREMENTS: the constitution of the united states the united states constitution is the most important document of the united states. it is the basis of the united states government as well as the laws of the country, all other laws and regulationsof the united states must be in agreement with the constitution. under it's bill of rights section: the second amendment concerns the right of the people to "keep and bear arms." this amendment ensures the united states has a citizen militia rather than just a large national army. the national guard in each state is one type of citizen militia. this is out of NAVEDTRA 12043, april 1992, 0502-LP-216-0700. |
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