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.
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.