I’ve gotten numerous requests for tips from people wanting to open carry in Texas. As you know, it is legal to openly carry rifles and shotguns in the state. It is NOT legal to openly carry pistols or revolvers unless you are on private property. You can find all the laws pertinent to open carry on our The Law page.
The first question I always get asks, “what is the law that allows open carry? I can’t find it.”
You won’t find it. There is no law that says, “We, the government of the State of Texas, bestow upon you the right to carry your firearms openly as long as they are long and bulky. Now, go forth and annoy law enforcement officers who don’t know better.”
The fact of the matter is that laws don’t create rights. They never have and never will. Every single law that has ever been passed has only succeeded in limiting rights. Laws are the harbingers of doom for God-given rights. I love the 9th Amendment because it recognizes that the Constitution does not enumerate every single right that you and I possess for merely existing. It recognizes that we are endowed with numerous rights that are not mentioned in the Bill of Rights. For example, the right to travel, the right to breathe, the right to think, and the right to fall in love to name a few.
The fact that there ISN’T a law in Texas relating to openly carrying rifles and shotguns means we have the right to do so. The only laws that have been passed with reference to our right to keep and bear arms have largely targeted handguns and are specific to them. For example, Section 30.06 of the Texas Penal Code bars CHL holders who “carries a handgun” from entering the premises of a building bearing the applicable sign. So, legally speaking, it is still lawful to carry a rifle or shotgun into a government building bearing this sign as long as it doesn’t otherwise bar all firearms.
But, let’s get back to openly carrying rifles and shotguns. Now that we know it’s legal, how do we do it? These are just suggestions and are by no means legal advice. It’s important that before you undertake the task of openly carrying in a legal manner you first COMPLETELY understand what that legal manner is. You must familiarize yourself with the laws so that you can intelligently inform those with whom you come in contact and law enforcement.
I can’t promise that when you exercise your right to keep and bear arms that you will do so unmolested. If anyone knows that things can go wrong, it’s me! But, I can tell you that if you remain calm and explain yourself intelligently your chances of completing a successful carry with be greatly increased.
If you are beginning this effort for the first time, it probably doesn’t hurt to contact your local police department or Sheriff’s office prior to going out. You don’t have to specifically detail your entire route, but just give them some general information about where you’ll be in case they get calls. I guarantee you, if you’ve never done this before, there will be at least one. And one is all it takes. There was only one call when I was arrested for lawfully carrying a firearm and you see where it got me.
This is by no means a requirement because I firmly believe you shouldn’t have to notify or warn anyone that you are about to exercise your rights. You don’t call the police when you leave your house and tell them you’re going to work and you’ll be doing the speed limit. You don’t call them when you post something online. So, why call them when you’re about to exercise your right to keep and bear arms (hereinafter referred to as RKBA)?
I only recommend doing this the first or first few times to condition the call centers to what you’re doing. After a few events, they will know who you are and what to expect. This is just a courtesy and not a requirement, but it’s one I recommend, especially in the smaller towns or bigger cities.
When you call them, as happened in Little Elm, Texas, recently, they may tell you that if they get any calls they are going to arrest you for disturbing the peace. This is also known as disorderly conduct. They will tell you that if you “cause alarm” you are breaking the law. What they won’t tell you is that they don’t know what they’re talking about.
Penal Code Section 42.01 covers disorderly conduct. Subsections (a)(7), (a)(8), and (a)(9) refer to weapons specifically. Subsection (a)(8) is the one that refers to displaying “a firearm or other deadly weapon in a public place in a manner calculated to alarm.” This is the section to which most law enforcement officers refer when they threaten to arrest people carrying rifles. And it’s a false threat. Simply carrying a firearm openly does not meet the reasonable person standard for “calculated to cause alarm.”
A look at Texas court cases involving firearms violations of PC 42.01 shows that the only times the court has ruled against defendants are when the defendant was pointing the weapon at another person or waiving it in a threatening manner. While many cases have been brought before the courts of someone simply having a weapon by which someone feigned “alarm,” none of them were found guilty unless they actually pointed that weapon or waived it around. The mere sight of a firearm does not constitute a “reasonable person standard” for being “alarmed.”
A review of several Supreme Court (SCOTUS) cases inform us that the mere presence of a weapon is not evidence of a crime. Most recently, in U.S. v Black, the 4th District Court ruled that the presence of an openly carried firearm in an open carry state does not constitute reasonable suspicion of a crime. The noted that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” They further noted that “permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
Since Texas is an open carry state for rifles and shotguns, police “cannot justify an investigatory detention.” This is important case law that you need to know. You may need to recite it at the point of interactions with law enforcement.
In Texas, there are basically three types of stops by law enforcement: interviews, stops, and arrests. Interviews are just standard interactions with the public. They may or may not have a purpose. Interviews are nothing more than asking how a day is going or what someone may be doing. There is no legal requirement to respond to these questions at all. Because the person being interviewed is not suspected of a crime, he/she can simply choose to walk away. Police are not allowed to interpret such refusal to engage in conversation in an unofficial capacity as evidence that something nefarious is afoot.
The second is called a stop. An officer may perform a stop – a temporary detention – if he has reasonable suspicion that a person has committed, is committing, or is about to commit a crime. He has to be able to articulate that reasonable suspicion and it must meet the reasonable person standard. A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot. During a stop, you are not allowed to leave until the officer either confirms his reasonable suspicion or determines that the reasonable suspicion is not justified.
The third is called an arrest. This is obviously an extended detention and requires probable cause that a crime was, is being, or will be committed. This is a higher standard than reasonable suspicion and general requires evidence of a crime to be present. Still, the officer must articulate exactly what the probable cause is in order to effect the arrest.
It is important that if stopped by a police officer, you immediately inquire as to the reasonable suspicion or probable cause upon which an officer is basing his interaction. If none are present, you have the right to walk away. You are free to VOLUNTARILY respond to his inquiries, but you are not required to do so unless suspected of criminal activity.
For example, in my case I voluntarily explained to the officer that stopped me that I was on a hike with my son. He then asked me why I was carrying my AR15, which is obviously legal in Texas. My response was “because I can” though I wasn’t required to answer at all. Because I wasn’t doing anything illegal I should have been let go. However, I was instead thrown onto the hood of a car and prevented from leaving. I was now either being stopped or arrested. I repeatedly asked what crime I was suspected of having committed. These are important questions you need to ask for use in case of potential charges. Even if they had found me with something illegal on my person, the reason for the initial stop was illegal and everything after that was a violation of my 4th Amendment rights.
I recommend that you simply be cordial and put the officer at ease. If you don’t want to be cordial, ask the officer if you are being detained and then walk away. Try to refrain from any arguments. Unfortunately, many law enforcement officers have an authority complex and live by the rule that “you may beat the rap, but you won’t beat the ride.” While this is wholly offensive on its face, this is the mentality of many. They have forgotten their purpose is to serve, not to enforce servitude.
When you decide to go out, have a plan. Ask a friend to go with you, preferably also armed. Make sure you have the capability to record any encounter you have with law enforcement (in actuality, you should record any and all interactions with police these days). Most cell phones allow you to create videos and there are apps that will upload directly to YouTube as you take the video if you’re worried about the police confiscating your phone or camera.
While you’re out on your open carry walk, do not handle the weapon. Keep it strapped across your body with the muzzle pointing down. Keep your weapon on safe at all times. The decision to carry with a round chambered is up to you, but keep in mind that a chambered weapon needs more attention and safety oversight when carrying. The least threatening way of carrying your rifle on your back without a round chambered and no magazine in the well. Personally, I carry with a loaded weapon. It doesn’t do any good to carry a weapon that can’t be quickly utilized when needed.
Try to stay away from sensitive areas. While there is no 1000 foot “safe zone” around schools, try to avoid walking near them, especially during school hours. While it is legal to walk with a firearm on the sidewalk along school property, it’s probably not the smartest thing to do. There is a false belief that you can’t have a gun within 1000 feet of a school and there is simply no law in Texas against it. However, the Gun Free School Zones Act of 1990 defines a “school zone” as anything within 1000 feet of school grounds. However, because the Supreme Court struck down this Act, it was amended to apply to “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.” So, if you buy a firearm that was manufactured and built in Texas, the GFSZA doesn’t apply. Either way, just steer clear of schools. It’s a no-win.
As an aside, I HIGHLY recommend that you subscribe to a pre-paid legal service like Texas Law Shield (of which I’m a member) or Legal Shield. If you are a member of either service and are arrested for lawfully carrying a firearm, your legal services are already paid for. I can’t recommend them highly enough.