Imagine All Your Rights Being Treated Like Your Right To Keep And Bear Arms

AP_Documents_BillofRights

In Texas, in order to carry a handgun, Texans must obtain a state-issued license that costs in excess of $200.  You can’t openly carry a handgun at all (NOTE: Except on your private property and a few other specific instances), unlike 45 other states. A thin piece of fabric is all that separates you from being a law-abiding citizen or a “criminal.”  Can you imagine if all your rights were treated this way?

In order to write a letter to the editor, comment on Facebook, post a blog, go to church, protest government corruption, assemble for a common cause, or petition the government for a redress of grievances, you must first acquire an FSL (Freedom of Speech License) that costs over $200.  Additionally, you can’t have been convicted of a Class B misdemeanor or higher (regardless of violation) in the past 5 years, must be current on school loans and child support, and must be at least 21 years old.takes place over 1,000 years ago

In order to ensure that troops aren’t quartered in your home, you must first acquire a Troop Repellent License license that costs over $200 and you can’t have been convicted of a Class B misdemeanor or higher (regardless of violation) in the past 5 years, must be current on school loans and child support, and must be at least 21 years old.

In order to ensure that you are secure in your person, house, papers, and effects against unreasonable searches and seizures, you must first obtain a license that costs over $200.  Upon encountering a law enforcement officer and told that he is going to search you without cause, you must present your drivers license and Search and Seizure Protection License to avoid the invasive action. A warrant would only be required for those in possession of the SSPL.

To enjoy protection from double jeopardy after being found innocent of a crime, you must first get a $200 Double Jeopardy License, otherwise the state can prosecute you as many times as it takes to get a guilty verdict. In addition to a DJL, you must also secure a SIL (Self Incrimination License) or you will be required to testify against yourself. A $250 DPL (Due Process License) will ensure that you are not deprived of life, liberty or property.  This license was formerly known as the PAL (Patriot Act License). A Private Property License is the only way to ensure that the State of Texas doesn’t take your property and just laugh when you ask for compensation.

The $200 Criminal Prosecution License (CPL) recognizes that you are entitled to an attorney, that the state doesn’t hold a secret trial against you five years after you’re falsely arrested (assuming you don’t have a SSPL). Witnesses against you are protected from cross examination unless you have a current CPL.

After being trained on the duties of jurors and proving that you haven’t ignored a jury summons in the past five years, you can go to your nearest courthouse to obtain a $200 Jury Trial License that recognizes your right to a trial by jury.

Are you sensitive to pain and suffering?  Have no fear.  Texas would offer a $200 CUPL (Cruel and Unusual Punishment License) once you successfully pass SERE training.  Texans refusing to secure a CUPL will find themselves working in the oil fields without pay wearing only a pink slenderman suit.

In order to protect those rights that are not enumerated in the constitution, but that you retain as a living being, a $1500 RPL (Rights Protection License).

But, have no fear.  In order for Texas to enjoy state sovereignty, they are also required to obtain a license.  For a small fee of just $2,500,000, Texas can obtain a SSL (State Sovereignty License) to protect from federal encroachment.  It must first complete training that hasn’t been identified yet and meet certain criteria they can’t discern.

The Not A Slave License protects you from being involuntarily subjected to slavery. For an additional $650 (on top of the $200 license), you can even own slaves – those that don’t have an NSL.

In order to vote, you must present your driver license and $200 VCL (voters certification license). If you’re poor or elderly, you would only have to pay $150 after proving that you graduated from civics training and understand how our system of government works.  You must also pass a separate range qualification that tests your knowledge on political issues presented on the ballot for any given election.

This is what the country would look like if every right was treated like your 2nd Amendment rights.  Support more gun rights for Texas. #SupportHB195.

“Gun Free Zones” In Texas

UPDATE: The section of the US Code (Section 921,   http://www.law.cornell.edu/uscode/text/18/921#9577745468023118216) that defines the federal “gun free zone” does create an unconstitutional 1000 ft bubble around a school. However, that is only applicable to interstate commerce.

There is a lot of talk about so-called “gun free zones” in Texas.  I want to discuss the reality of what these mean using local, Texas, and federal laws.  This post is NOT meant to be legal advice and presented for merely informational purposes. To read the actual laws quoted in this blog post, please click the associated URL links.

Before talking about these zones, we must define them.  State and federal laws about what constitutes a “gun free zone” are very well defined. I’ll start first with the federal laws that govern these “gun free zones.”

According to Title 18, Part I, Chapter 44, Section 922 of the US Code, a school is basically defined as the school grounds. This includes the building and all real property attached to that building. The code simply makes it unlawful to “knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”  This is a legislative trick, but one Congress passed trying to insinuate that simply carrying a firearm is somehow engaging in interstate commerce. Technically, under this sweeping interpretation of the interstate commerce clause of the constitution, Congress could literally dictate what clothes you wear if any part of them was manufactured, printed, assembled or the cloth grown in another state.

When this law was first passed, it was ruled unconstitutional and unenforceable. In response, Congress tweaked the wording a bit to try and make it fit within the confines of “interstate commerce.”  It’s a clever trick, but one that hasn’t yet been challenged to my knowledge.  Basically, this law says that all guns are subject to the law because there isn’t a single gun that is completely manufactured in one state.  If ONE part of the gun ever crossed a state line, the Congress thinks it maintains the authority to regulate the ownership, use, and transportation of that firearm for the rest of its life. I can’t imagine that holding constitutional water, except in the most anti-gun of Supreme Courts. But, let’s just assume for the sake of argument that this law is constitutional and valid.  To avoid being subject to it, simply don’t take a firearm on school property or make sure if you do that the firearm was completely built in Texas, including the mining for the ore. The law does NOT contain a “buffer zone” that defines a radius from the school a gun may not be carried.

That brings us to Texas law on “gun free zones.”  Texas law, like all its statutes, is easy to understand, but you have to follow numerous rabbit trails to get to the truth.

Chapter 46 of the Penal Code is where the regulation of firearms in relation to schools is defined. In our great state, it’s unlawful for a person to carry on or about his or her person a handgun, illegal knife, or club except in certain instances.  Texas law also prohibits us from having or carrying an explosive weapon, a machine gun, a short-barrel firearm, a firearm silencer,  knuckles, armor-piercing ammunition, a chemical dispensing device, a zip gun, or a tire deflation device unless you have a tax stamp required under the National Firearms Act.

With a concealed handgun license, Texans can carry a handgun as long as it remains concealed.  If the knife is less than 5.5 inches (we are also going to fight against this insane law), it is not an “illegal knife.” If you are on your own premises or premises under your control or inside of or directly en route to a motor vehicle or watercraft that you own or is under your control you can have any of those and even carry them openly. Handguns can’t be in plain view at any time (for now). Obviously, people prohibited by law can’t have a gun; neither can members of criminal street gangs.

Section 46.03 is the law that determines where guns are prohibited.  For the purposes of this blog post, I’ll limit the scope to those places related to schools. According to the law, “[a] person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon…on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution.”  It goes on to define “premises” as “a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”

Some may be asking, “where does this 1000 foot buffer zone come from?”  The 1000 buffer zone around schools is frequently attributed to firearms, but it only applies to possession of drugs as found in federal law.  There is no buffer zone for the possession of a firearm in federal law except on the property itself. Likewise, Texas state law does not create a buffer zone.  The next question is, “what about the 300 foot rule?”

This is where law enforcement and the general public get confused because the definition of “premises” changes.  Section 46.11 of the Texas Penal Code is the only section that talks about a “gun free zone.”  However, it doesn’t ban guns within them.  Instead, Texas law merely makes any gun crime committed within a school zone a greater offense.

For example, if I openly carry a modern handgun in Texas, I would be charged with a Class A misdemeanor for unlawful carry of a firearm. However, if I was carrying that same handgun within the 300 foot “school zone,” that same offense would now be a 3rd degree felony accusation.  That only applies to offenses described in Chapter 46 of the Penal Code. The definition of “premises” changes here from only applying to the school building to applying to all school property, but only for the purposes of making the gun offense more severe.

To sum up, there is only a “gun free zone” for the purposes of making certain gun crimes more severe in penalty and punishment.  It does NOT mean you cannot carry a lawfully possessed firearm within those imaginary lines. It merely says you can’t commit a crime within those boundaries and, if you do, the charge jumps up to the next greater offense (ie: class b  misdemeanor to a class a, or class a misdemeanor to a class 3 felony).

According to the Texas Constitution, only the legislature has the power to regulate the wearing of arms.  This state preemption of gun laws in enshrined in the Local Government Code, Section 229.001.  It states, quite clearly, “a municipality may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies.”  So a Texas city, town, or municipality can’t create more strict gun regulations than the state allows. Municipalities are given power to create ordinances in limited circumstances, like city parks, public meetings of a municipality, county, or other governmental body etc. (note they can’t just make public buildings off-limits), political rally, parade, or official political meeting, or at a non-firearms-related school, college, or professional athletic event. That’s it.

Why do we bring this up?

meadowsplace

This is a sign in Meadows Place, Texas.  It purports to describe the city as “gun free.”  On the city’s website, they are “pleased to announce the establishment of several Drug and Weapon Free Zones.”

“The City of Meadows Place takes the safety and well-being of our children very serious and has made this of the highest priority by initiating the Drug and Weapon free zones around our schools and parks in accordance with State and Federal laws.” They continue, “Because of the size of the City and the location of the schools and parks this encompasses a majority of the city.”

The problem here is multi-faceted. First of all, cities only have the authority to regulate guns within city parks, not around them.  Local Government Code 229.001 states, municipalities “may not adopt regulations relating to…the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, ammunition, or firearm or air gun supplies” except “at a public park” a few other places not relevant here. The law says AT a public park, not around a public park. However, you can see from this map provided by the City of Meadow Place that they don’t care about the law.

meadowsplacemap

The red lines represent the “no guns” zones and the green lines mean “no drugs” zones. As explained earlier, it is not illegal to carry a lawfully possessed firearm within these boundaries, it’s just MORE illegal to illegally carry a firearm or other prohibited weapon within them. And Texas law does NOT allow municipalities to create these “buffer zones” around parks, only schools. So, the red lines around the green areas above are meaningless in the eyes of the law and Open Carry Texas.

The problem lies in the legal reality there there really is no such thing as a “Gun Free Zone” in Texas. This “zone” is nothing more than a criminal act enhancement law. If you commit a gun crime within these invisible lines, that crime is now amplified.  However, the mere carry of a firearm outside of the building within these “gun free zones” is perfectly legal.

I’m not advocating walking up to the front door of a school.  While perfectly legal, it’s not prudent or reasonable while our liberal education system is working so hard to scare the hell out of kids on mere sight of a firearm. We need to continue reconditioning America on the facts and reality about guns in the hands of law abiding citizens.

What I am trying to get across is that the City of Meadows Place isn’t as “gun free” as they think.  All they are doing is simply making it more damaging for a criminal to use a gun in the commission of a crime.  Frankly, I’m okay with that. If you use a gun to commit a crime, you shouldn’t get a slap on the wrist.

Perhaps the most disgusting aspect of this whole “gun free zone” rhetoric they subscribe is what they do while telling you not to.  It turns out the city isn’t as divisive against guns as they’d have you believe.  They love guns, as long as those guns are in their hands and not yours.  Take, for instance, this screenshot of Meadows Place Police Department purchasing AR15 pistols (no, that’s not Dick Cheney…I don’t think!).

meadowsplacepd

Hypocrites much?

In fact, as a cookie to help legislators see the worth in passing unlicensed we’re willing to accept making Texas as a whole one of these “gun free zones,” making any gun crime in Texas an instant felony. The abuse of a right is the only thing that should negate the exercise of it.

One of the many efforts that Open Carry Texas is engaged in is making sure that is cities are going to hold gun owners accountable for obeying the law, gun owners must hold cities accountable for obeying the laws as well.  This is why we are fighting the City of San Antonio and their unlawful ordinance that bans loaded rifles within city limits.

We will continue to stand for our right to keep and bear arms without prejudice and without reservation. Someone needs to stand up and put a stop to our runaway governments and demand respect for our rights and the return of them. We, the People, don’t beg government to give back what is inalienable to us. Remember that “government[s] are instituted among men, deriving their just powers from the consent of the governed.

When government begins to dictate away our natural right to self defense, we have the right to take that power back. We have a right to challenge it. And challenge it we will.

Joint Statement on OC of Long Arms

joint

FOR IMMEDIATE RELEASE – Come and Take It Texas, Texas Carry, Gun Rights Across America and Open Carry Texas Joint Statement on OC of Long Arms

Over the past year, our members have done what no other organization has been able to do – put open carry at the forefront of the fight to restore gun rights for all Texans. As we have grown, we have had to adjust our efforts based on lessons learned through hundreds of open carry events, big and small.

Looking back, it has become clear that there is one area in which we have gotten the most resistance and suffered the largest setbacks: open carry of long arms into private businesses. This is not a new phenomenon. Early on, because of our efforts, the Texas Alcoholic Beverage Commission (TABC) sent a message to all TABC licensees warning them about allowing our members to open carry into their businesses. This resulted in places like Smashburger asking us to leave our guns at home. Since then, Starbucks, Wendy’s, Jack In The Box, Applebees and most recently, Chipotle have come out asking we not carry our firearms into their establishments.

Whereas, our mission is to get open carry of handguns passed in Texas, we must once again adjust in a way that shines a positive light on our efforts, our members, and our respective organizations. We have decided the prudent path, to further our goals, is to immediately cease taking long guns into corporate businesses unless invited. Black Powder revolvers have proven to be very effective and align with our goal of legalizing open carry with a handgun. We do understand that not everyone will be able to afford one, but if you can, we are requesting you do so. Almost every leader has gone to Black powder for a reason. It works.

For all further open carry walks with long guns, we are adopting the following unified protocol and general policy to best ensure meeting our respective legislative mission to legalize open carry:

1) Always notify local law enforcement prior to the walk, especially the day of
2) Carry Flags and signs during your walk to increase awareness
3) Carry the long gun on a sling, not held
4) Do not go into corporate businesses without prior permission, preferably not at all
5) If asked to leave, do so quietly and do not make it a problem
6) Do not post pics publicly if you do get permission and are able to OC in a cooperate business
7) Do not go into businesses with TABC signs posted with a long gun (Ever)
8) If at all possible, keep to local small businesses that are 2A friendly

We ask that members take a step back and make an objective assessment of what we are trying to accomplish and help us to get open carry passed for everyone. We must be willing and able to recognize what works and what doesn’t, but we need your help to make these efforts a success. It will be very difficult to spin holstered, black powder revolvers into a negative story. This is the goal we are currently striving for, open carry of handguns. We know everyone is working hard for this cause. It is simply time to focus on what has been proven to work. The conversation has shifted from open carry of handguns to rifles in businesses, negating our efforts and distracting us from our mission.

We are winning. Because we are winning, we have come under increased scrutiny by media and politicians. Let’s use that spotlight and make the most positive impact we can!

Carry on!

###
CJ Grisham -Open Carry Texas

Terry Holcomb, Sr -Texas Carry

Murdoch Pizgotti – Come And Take It – Texas

Eric Reed – Gun Rights Across America

Supreme Court Gun Cases

Image

This may be a long post, but I hope you find it beneficial.  I will try to correlate where I think these cases apply to both repealing the Texas CHL and open carry laws to support constitutional carry in our great state.  Since the Heller opinion is so widely known, I won’t be covering that here unless commenters would like a separate post just on this particular case.

Many people probably don’t realize that there have been over 100 Supreme Court cases that have discussed, in some form or fashion, the 2nd Amendment and our right to keep and bear arms.  Some of these cases merely reference that right in arguing for a completely unrelated case – usually the 4th Amendment.  These mere legal notations in case decisions are important in many respects as they recognize an individual AND collective right to self defense.  Some of these cases have actually made it harder to secure these rights.  However, the vast majority of them support our inalienable right to self defense through the keeping and bearing of firearms.

UNCONSTITUTIONAL LAWS ARE VOID

While Marbury v. Madison is largely viewed within the legal community as offensive to the constitutional power of the Supreme Court, this decision has a great pull-away quote that is relevant to gun rights. For those that aren’t aware, it was this decision in which the Supreme Court seized authority over deciding constitutional issues that the Constitution doesn’t grant it. However, the justices made a key statement in this case that has had far-reaching effect by noting that “an act of the legislature repugnant to the constitution is void.”

Other cases supported this line of thinking.  In 1886, the court found that “it is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon” (Boyd v. U.S.).  Unfortunately, most of our courts today – especially our lower municipal courts – have violated this very intent of their existence as defenders of rights. In Norton v. Shelby during the same year, the court stated, “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation as though it had never been passed.” 

PERMIT FEES ARE UNCONSTITUTIONAL

While most patriots scoff at the idea of having to pay a 2A tax, many do so anyway thinking they have no choice. Nearly every state has some form of licensing scheme to regulate the keeping and wearing of arms. The costs associated with these schemes varies greatly by state.  For example, I can get a CHL in Alabama by just paying $10 ($20 for a nice plastic card) and waiting for my background check to come through – usually about a month.  However, in Texas it costs over $250 for the average citizen to get their license. They must pay the state $140 for the privilege of exercising a right on top of the costs associated with fingerprinting and getting a passport-style photo taken for the packet. Then, there’s the cost of getting the required CHL class prior to submitting the packet.  This class costs an average $100.  So, the total second amendment tax that the state of Texas imposes on citizens wanting to carry concealed can easily top $250.

Murdoch v. Pennsylvania (1943) wasn’t a gun case, per se, but it has direct implications on our second amendment rights.  Murdoch was a Jehovah’s Witness and was asking people for donations in exchange for various religious materials. The borough where Murdoch was required him to obtain a license to engage in such actions.  Naturally, Murdoch regarded this as a tax on his first amendment right to freedom of religion. The court agreed that the ordinance was an unconstitutional tax on the Jehovah’s Witnesses’ right to freely exercise their religion. “A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution,” wrote Justice William O. Douglas. He also stated, “a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the Constitution.'” Before my fellow patriots begin screaming, I agree that rights are not “granted” by the Federal Constitution, but merely recognized by it.  

Murdoch wasn’t the only time the Supremes addressed the matter of paying to exercise a right. Another first amendment case before the court was Staub v. City of Baxley (1958).  This case originated in Georgia as a result of a city ordinance that made it an offense to “solicit” citizens of the City to become members of any “organization, union or society” which requires fees or dues from its members without first applying for and receiving from the Mayor and Council a “permit.” Staub refused to get a permit and was arrested for a violation of the ordinance. The court held that “The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.” 

Justice Whitakker held in the Staub case: “It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.”

The 1969 case Shuttlesworth v. City of Birmingham Alabama is one that should be burned into the brains of anyone leading rallies and such on public property. It’s one I quote when I am planning events around the state when the local city wants us to apply for a permit. Shuttlesworth was arrested and convicted of “violating an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission.”  Further, “Section 1159 permits the Commission to refuse a parade permit if its members believe ‘the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.'”

It’s interesting to note that when I argue about not succumbing to a permit scheme to exercise two rights, the officials usually try to cite those same excuses of protecting “public welfare, peace, safety, etc.”  Statists will usually pass laws that they think are for our own good. However, when those good intentions infringe on rights, the courts have slapped them down “without narrow, objective, and definite standards” in approving or denying them. For example, the City of Andrews, Texas, has an ordinance that does not proscribe these standards, which is why we refused to get a permit prior to canceling our event. The Chief of Police had wide latitude in deciding who will and will not get a permit without providing the standard by which one could be denied. In fact, Chief Bob Jones told me directly that he wouldn’t approve a gun rights permit without explaining why.

Getting back to Shuttlesworth decision, the court was quite pointed about licensing laws: “And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.”

Now, before everyone gets excited and starts open carrying “because I can”, keep in mind that just because a law is unconstitutional, there is still an important corollary: those laws, though unconstitutional in nature, are still laws. You may still be arrested for violating them and the process of fighting unconstitutional laws takes years and tens of thousands of dollars to fight. The police axiom that “you may beat the rap, but you won’t beat the ride” comes to mind. It’s unfortunate that we seem to live in a state where the rule of law is reduced to meaning that the law means whatever the cop with the gun says it means until you beat them in court. Believe me, I’m a victim of that mentality, affectionately called the Ermis Doctrine.

GUN FREE SCHOOLS ACT UNCONSTITUTIONAL

I get asked all the time whether someone is allowed to open carry within 1000 feet of a school.  There are two answers to that question: the legal answer and the logical one.  The legal answer is that according to Texas law, you can technically walk right up to the front door of a school without violating the law.  Section 46.03(a)(1) states, “A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon…on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution (emphasis added).” Texas defines “premises” as the actual building, not the grounds, unless there is an activity taking place on those grounds.  

What about the Gun Free School Zones federal law?  Unconstitutional and inapplicable to us. In the United States v. Lopez case, Justice Renquist rightly noted “that Congress in enacting the Gun-Free School Zones Act exceeded its authority under the Commerce Clause.”  The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity.

That is the legal answer. The logical answer is that we don’t recommend walking up to the front door of a school with a rifle slung across your back. We recommend that when planning your walks, just be aware of WHERE the schools are and when they are in session.  I frequently open carry past schools when I go on my OC bike rides.  It’s virtually impossible these days to NOT pass a school unless you live in the country. I just make sure that school is not in session at the time so no one flips out.  This goes back to that whole “you can beat the rap, but you won’t beat the ride” mindset. It also invokes what I like to call the Sergeant Thomas Menix “In This Day And Age” doctrine where cops base their enforcement of law based on the nightly news, not the actual law.  

STAND AND FIGHT

Unfortunately, the only way to challenge these unconstitutional laws is to stand and fight them. What this means is that Texans would have to violate the law in order to fight the law. Obviously, this is not something we recommend, because jail sucks and legal fees are expensive. Open Carry Texas is dedicated to the LEGAL and open carry of firearms.  So, because there are laws that require unconstitutional licensing schemes, our goal is to change these laws so they aren’t on the books at all.  That way, no one HAS to break the law to challenge it because it’s no longer a law. We believe in constitutional carry – the ability to carry openly or concealed without permission from the government.  Keep in mind that in McDonald v. Chicago (2010) the court ruled that the 14th Amendment enjoins the states to the federal constitution which recognizes the right to keep and bear arms. Therefore, Texas laws that violate the 2nd Amendment are unconstitutional.  There are currently several cases working their way through the Texas courts on many different fronts, from “interfering with public duties” when an officer decides to, without probable cause, disarm a law-abiding citizen to disorderly conduct to criminal trespassing on the basis of the mere presence of a firearm or pre-1899 replica revolver.

We will continue to fight to secure the rights of Texans to keep and bear arms at every level of government.  

 

CJ Grisham

President, Open Carry Texas

Disclaimer: I am not an attorney and this post is not meant to provide legal advice. The opinions expressed in this post are solely those of the author.

Opinion: DPS Has No Authority To Arrest

I’ve been doing a lot of research since two of our members were assaulted and falsely arrested by DPS troopers at the Capitol a few weeks ago. Besides the law that we already are aware wasn’t broken with respect to having BP pistols, I found some other interesting tidbits of law that I think support our assertion that DPS is overstepping its bounds.

The State Preservation Board is an agency of the state. Among its responsibilities is to “adopt rules concerning the buildings, their contents, and their grounds.” Additionally, “the board may allocate specific duties and responsibilities to any other state agency, if the other agency agrees to perform the duty or accept the responsibility.”

Section 443.018 of the Government Code allows the Board to regulate visitors and vendors to the capitol under certain circumstances.

Sec. 443.018. REGULATION OF VISITORS AND VENDORS. (a) The board shall adopt rules that regulate the actions of visitors in the Capitol or on the grounds of the Capitol.

(b) The rules adopted under Subsection (a) shall include rules that:

(1) prohibit persons from attaching signs, banners, or other displays to a part of the Capitol or to a structure, including a fence, on the grounds of the Capitol except as approved by the board;

(2) prohibit a visitor from placing furniture in the Capitol or on the grounds of the Capitol for a period that exceeds 24 hours except as approved by the board;

(3) prohibit the setting up or placement of camping equipment, shelter, or related materials in the Capitol or on the grounds of the Capitol except as approved by the board;

(4) prohibit actions that block ingress and egress:

(A) into the Capitol building; or

(B) rooms or hallways within the Capitol building, except as approved by the board;

(5) prohibit actions that pose a risk to safety;

(6) provide that members of the public must leave the Capitol when the building is closed to the public;

(7) provide that all pets except Seeing Eye dogs are not permitted in the Capitol, and shall be restrained at all times on a leash or similar device in the immediate control of the owner while on the grounds of the Capitol, except as approved by the board;

(8) prohibit the use of skateboards, rollerblades, and rollerskates in the Capitol or on the grounds of the Capitol; and

(9) prohibit a vendor or commercial enterprise from operating in the Capitol or on the grounds of the Capitol unless the vendor or commercial enterprise is authorized to do so by the board.

(c) A person commits an offense if the person violates a rule of the board adopted under Subsection (a).

(d) An offense under this section is a Class C misdemeanor.

(e) This section may not be applied in a manner that violates a person’s rights under the Texas Constitution or the First Amendment to the United States Constitution, including the right of persons peaceably to assemble.

(f) The board shall send proposed rules under this section to the attorney general for review and comment before the board adopts the rules.

DPS claims that they have the authority under law to create rules with an eye towards safety. However, these rules “may not be applied in a manner that violates a person’s rights under the Texas Constitution.” Our Texas Constitution recognizes the rights of citizens to keep and bear arms under Section 23 of the Bill of Rights.

Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

Texas Government Code Section 411.062 gives DPS “primary responsibility for law enforcement and security services on the Capitol Complex.” It also give DPS authority “to adopt rules relating to security of persons and access to and protection of the grounds, public buildings, and property of the state within the Capitol Complex, except that public use of the capitol, the capitol extension, the capitol grounds, and the General Land Office building shall be governed by the State Preservation Board.”

DPS may enforce the rules of the State Preservation Board that are published in the Texas Administrative Code. However, these rules, again, must not violate the constitutional rights of Texans and visitors.

If you look back at Section 23 of the Texas Constitution, only the LEGISLATURE has the authority to “regulate the wearing of arms” and then only “with an view to prevent crime.” The Constitution vests no authority in DPS or the Texas Preservation Board to adopt rules that govern the wearing the arms.

DPS likes to point to the Administrative Code Rule 3.146 that states firearms are prohibited on Capitol grounds. While I believe this rule is unconstitutional as it wasn’t a law passed by the legislature to “regulate the wearing of arms” the rule still only applies to firearms as defined in Texas Penal Code Section 46.01.

(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.

Never mind that the Rule, as written, misquotes the law. 3.146 addresses “prohibited weapons as defined in the Texas Penal Code, §46.06.” The problem is that Texas Penal Code, §46.06 doesn’t address prohibited weapons. That is §46.05. §46.06 addresses the “unlawful transfer of certain weapons.”

The problem that DPS has is one of a constitutional nature, both the Texas and US constitutions. 3.146 only regulates “firearms, explosive weapons, illegal knives, clubs, and knuckles, as defined in the Texas Penal Code, §46.01, and prohibited weapons as defined in the Texas Penal Code, §46.06[sic]” on state grounds.

If you notice, “deadly weapons” are not expressly mentioned. It is not inferred or implied either. Under the Texas Penal Code, a deadly weapons is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury”…or…”anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

Knowing the statist mentality of the Capitol DPS leadership, I have no doubt that they will try to get the rules changed so that these officers are the only ones armed. Patrick Henry warned about this mentality in 1775 as King George I began confiscating powder kegs and arms. He posited the following observation on why government doesn’t want us carrying arms: “They tell us that we are weak — unable to cope with so formidable an adversary. But when shall we be stronger? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Three million people, armed in the holy cause of liberty, are invincible by any force which our enemy can send against us.”

DPS and other law enforcement entities that continuously call for the systematic disarming of the populous claim to do so in the interests of safety. What they fail to realize is that where there are firearms, there IS safety.  Thomas Jefferson is credited as saying, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”

A few weeks ago, over 1200 armed individuals converged on the front lawn of the Alamo in San Antonio. Nearly all weapons were loaded (though none were chambered). If guns endanger safety, no place in the country would have been as dangerous as downtown San Antonio that beautiful Saturday in October. However, no one was threatened, injured or killed. No one was robbed, raped, or beaten.

The Supreme Court of the United States has ruled on numerous occasions that the right to keep and bear arms is an individual right, not a collective one. We have seen throughout US and world history what happens to an unarmed society. When the government is the only entity with arms, its dictates cannot be opposed. Similarly, a disarmed populous is at the mercy of an armed criminal one. Society becomes one of victimhood and it seems like DPS is perfectly happy with that as the status quo.

Because the law does NOT bestow to DPS the authority to disarm citizens carrying black powder pistols, nor does it have the authority to force citizens off public property. The City of Austin tried citing Occupy Austin members after ordering them to leave public property and lost a major lawsuit. Citizens have a right to the use of public property as long as they don’t restrict the use of that property to other people. The capitol complex is no different.

This post is not meant to be viewed as an interpretation of law. It is written for purely informational purposes.

The Virtue of Selfishness

When the framers were drafting the Declaration of Independence, they initially wanted the famous second paragraph to read “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and property.”

They quickly realized that this wording opened them up to losing their own property if the right to tangible objects was including in the wording.  Instead, they recognized that they were only really endowed with the PURSUIT of happiness.  They understood the importance of personal property and that no one else had a right to their labors or the results of that labor.  Thomas Jefferson said, “That, on the principle of a communion of property, small societies may exist in habits of virtue, order, industry, and peace, and consequently in a state of as much happiness as Heaven has been pleased to deal out to imperfect humanity, I can readily conceive, and indeed, have seen its proofs in various small societies which have been constituted on that principle. But I do not feel authorized to conclude from these that an extended society, like that of the United States or of an individual State, could be governed happily on the same principle.”

You may ask why I bring that up.

Big_chew_chews

There has been a lot of talk lately about taking black powder (BP) pistols into businesses with 30.06 or “no guns” signs.  Some believe that since BP pistols are not considered “firearms” under state and federal law, they shouldn’t be banned anywhere.  While this is perfectly fine in most public properties, like city halls and other venues, this is not true for private businesses.

Hopefully, everyone agrees that people have the right to run their businesses as they see fit with only minimal intrusion by the government to ensure health and safety (though, even that is questionable).  And we all agree that you and I have the right to self defense and part of that right includes the right to keep and bear arms to ensure it.  So, what happens when our right to self defense bumps into a businesses right to “govern” their own property.

In her book “The Virtue of Selfishness,” Ayn Rand said, “The end does not justify the means. No one’s rights can be secured by the violation of the rights of others.”

As gun owners, this is some that we need to be cognizant of.  Our rights end where others begin.  For example, I have a fundamental right to travel unmolested by government forces.  I’ve successfully fought many a speeding ticket arguing this and pointing to Supreme Court precedent that recognizes this right that is protected under the 9th Amendment. However, if my speeding causes an accident or I run someone else off the road, I’ve now interfered with their right to travel.  I don’t have a right to do that.

Similarly, as gun owners, we do not have the right to force a property owner to allow us to carry on their property. Our rights end at the property boundary of another.

If you are asked to leave because you are carrying a firearm or a BP pistol, you must leave or you are trespassing (Texas Penal Code 30.05).  If this doesn’t sit well with you, the easy answer is just not to patronize that business…or carry concealed.  But, please do not try and force them to allow you to carry in the store.  Don’t make a scene and don’t get upset. Simply thank them for their time and tell them why you will no longer be shopping or eating there.

opencarry

DPS Willful Ignorance of the Law Starts at the Top

As many are aware, this past weekend two OCT members were arrested by Capitol DPS Troopers while lawfully carrying pre-1899, replica cap and ball revolvers.  

cap-and-ball

Under state and federal law, these pistols are NOT considered firearms.  In fact, you can walk right into Cabela’s and buy one sitting in a box on the shelf with no background check.  You can even buy them on the internet and have them shipped to your house.

Unfortunately, DPS doesn’t seem to care what the law says.  In their minds, they don’t want to see Texans exercising their right to carry these pistols openly.  It probably threatens their macho egos seeing that they aren’t the only ones armed, even if it is a slow-shooting, black powder replica pistol.

In response to the arrests this weekend, OCT President CJ Grisham reached out to get an audience with DPS Director Steven McCraw.  In that email, CJ quoted the plain-language law and how DPS Troopers fractured the ribs of one of the OCT members.  Here is the video of that encounter.

Yesterday, CJ received a call from Director McCraw’s Chief of Staff and asked to meet with us Thursday at 1600 to discuss what had happened.  However, today CJ received another email stating that because he is “a defendant in a criminal case at present…and since you are currently represented by counsel, it would not be appropriate for the department to meet with you at this time. Therefore, we will have to cancel the meeting previously scheduled for Thursday, Oct. 31.”

Keep in mind that CJ’s trial ended in a hung jury nearly two weeks ago.  The email then went on to explain that while we can legally carry black powder revolvers openly, they simply don’t like it.  Naturally, that’s a paraphrase.  Here’s what they actually said (with frequent breaks in content to add commentary):

“We have reviewed your comments and direct your attention to the following policy:

Individuals who carry firearms or other deadly weapons in a manner other than under the authority of Subchapter H, Chapter 411 Government Code, are prohibited from carrying on the Capitol Grounds or within the Capitol Building or Extension or other state buildings within the Capitol Complex pursuant to Texas Administrative Code, Title 37, Chapter 3, Subchapter J, Rule   § 3.146 (set out below.)  Individuals subject to Rule 3.146 will be respectfully requested to leave the Capitol Building and Extension and the Capitol Grounds or other state buildings and will be subject to Texas Penal Code § 30.05 (Criminal Trespass) after having received notice to leave.”

There are numerous problems here, not the least of which is the authority of a “peace officer” to disarm.  The magic is in the words.  In 411.207, the code states that officers may disarm “a license holder.”  Since there is no need for a license to openly carry the replica revolvers being carried, there is no authority under this chapter to disarm.  And the rule only applies to “individuals subject to Rule 3.146,” which doesn’t include those of us openly carrying pre-1899 antique or curio replica pistols.  Click on the links; I’m not pulling this out of thin air.

Even supposing that this section gives a “peace officer” authority to disarm our members openly carrying these pistols, they can only do so when “the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual.”  When applying the reasonable person standard to a holstered, antique replica pistol, there is no authority to disarm as there is no threat from which the needs to be protected.

Other than those references, there is nothing in Chapter 411 that bars citizens from carrying these weapons.  Subchapter H, quoted above, deals with concealed handgun licenses and isn’t even applicable to this discussion or the issue at large.

I love this next quote from the DPS email:

However, individuals will be allowed to carry long guns or antique or curio firearms manufactured before 1899 or a replica of an antique firearm manufactured before 1899 that does not use rim fire or center fire ammunition throughout the Capitol Complex with the noted security exception of the Capitol Grounds or the Capitol Building or Extension or other state buildings within the Capitol Complex. The open display of such weapons must be in a manner that is not calculated to alarm and is not in violation of some other provision of the Texas Penal Code such as Texas Penal Code 46.05 (Prohibited Weapons).

Gee, DPS.  Thank you so much for “allowing” me to exercise my 2nd Amendment rights!  That’s so noble and brave and charitable of you!  Maybe we’ll “allow” you to wear a uniform and serve us.  But, I digress.

opencarry

A holstered weapon is IN NO WAY carried in a “manner that is calculated to cause alarm.”  In fact, it’s the LEAST alarming way to carry a weapon.  It should be noted that Penal Code 42.01, Disorderly Conduct, is the section of Texas law where that phrase comes from.

Fun Fact: In nearly every area dealing with the manner in which firearms are carried, where they are carried, and those able to carry them, there is usually an exemption for peace officers and law enforcement officials (and, sadly some others too, like judges).  However, there is no exemption from law under 42.01.  Therefore, if openly carrying a holstered pistol is carried “in a manner calculated to cause alarm,” it serves to reason that citizens can call in complaints against LEOs and they aren’t exempted!

The statute quoted above, Penal Code Section 46.05, identifies “prohibited weapons” as: “an explosive weapon;  a machine gun; a short-barrel firearm; a firearm silencer; a switchblade knife; knuckles (Note: crap! I’m gonna need surgury!); armor-piercing ammunition; a chemical dispensing device; a zip gun; or a tire deflation device.”

That’s it!  There’s no mention of black powder revolvers, rifles, or shotguns.  The email continues:

In summary, weapons other than, properly concealed handguns carried by CHL holders are prohibited on the Capitol Grounds or in the Capitol Building and Extension or other state buildings within the Capitol Complex.  In the remaining areas of the Capitol Complex, individuals may carry and display weapons in a manner consistent with the Texas Penal Code.

Whoa!  What?!  I didn’t read that in any of the statutes quoted so far in this email.  I also didn’t see any exemptions in Chapter 411 of the Government Code that identified the Capitol Ground or the Capitol Building.  So, there must be some other place that gives DPS Troopers the authority to disarm law-abiding citizens, right?  The email continues (emphasis added):

AUTHORITY:

Texas Administrative Code, Title 37, Chapter 3, Subchapter J, Rule § 3.146

(a) Firearms, explosive weapons, illegal knives, clubs, and knuckles, as defined in the Texas Penal Code, §46.01, and prohibited weapons as defined in the Texas Penal Code, §46.06[sic], are not permitted in state buildings or on state grounds covered under these rules, except in the possession of:

(1) a licensed peace officer;

(2) as to a handgun or nightstick, a properly licensed private security officer while working under an approved department contract and the contract authorizes the use of an armed guard; or

(3) as to a concealed handgun, a person who is licensed to carry a concealed handgun, under Texas Government Code, Chapter 411, Subchapter H, provided that such a person may only carry a handgun in a place and under circumstances where not otherwise prohibited by law.

(b) Violations of laws relating to weapons will be prosecuted under the applicable statute. Violations of this section which are not otherwise a violation of a particular statute, will be prosecuted under Texas Government Code, §411.065.

Did you see anywhere in there “deadly weapons”?  I didn’t either.  Did you see anywhere in there pre-1899 antique or curio replica pistols?  So, where does DPS – according to THEIR OWN EMAIL – get their authority?  The areas they quoted don’t provide it.  Penal Code Section 46.01 that defines “firearm” doesn’t give it to them.  Penal Code 46.05 doesn’t list them as prohibited weapons to give it to them.  Penal Code 46.06 that lists places where weapons are prohibited doesn’t give them the authority by specifically mentioning or even referring to the capitol grounds.

So, where does it come from?

It doesn’t come from anywhere because they HAVE NO AUTHORITY to arrest and disarm those of us carrying these pistols.  By sending this email, DPS has admitted they have no authority by quoting areas they claim give it to them when, in fact, they do not.

We have a problem in Austin right now.  We have a group of LAW ENFORCEMENT or PEACE OFFICERS that are neither enforcing the law nor ensuring the peace.  They create the breach of peace.  They violate the law.  They go out of their way to hassle and harass law-abiding gun owners for no other reason – one can guess – than to assert power and authority where it doesn’t exist legitimately.

Section 2 of the Bill of Rights in the Texas Constitution is very clear about where the REAL power is in the State of Texas (again, emphasis added): “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”

DPS Region 7 leaders have usurped authority from the people in violation of the law.  They have invented law where none exists, usurping that authority vested solely to the legislature.

Open Carry Texas will not allow these usurpations to continue unopposed.  We know and understand the law and everything we do is in compliance with every aspect of it, including their silly little administrative “rules.”  We demand DPS Troopers obey their oath to “preserve, protect, and defend the Constitution and laws of the United States and of this State.”

Before I close, allow me to quote one more area of Texas law that we, the People, WILL also obey.  It can be found in Texas Penal Code, Title 8, Chapter 39, Section 39.03.

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor.

We’ve made the law very clear, both here and in person at the Capitol.  Therefore, the Troopers KNOW what the law is and any attempted or actual arrest or deprivation of “the exercise or enjoyment of any right, privilege, power, or immunity” constitutes a violation of law and will be handled accordingly.

And one more statute that DPS Troopers and citizens should be aware of to enforce the law is contained in the Texas Code of Criminal Procedure, Title 1, Chapter 14, Section 14.01:

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

That is all.