denwego wrote: If you go by a pure, unexpanded, literal reading of PC Chapter 46, there is no exception whatsoever for touching a handgun in a gun store, nor carrying one back to your car after you buy it (and before the MPA, no way to drive it back to your residence).
That's one of the reasons why the law has always been unconstitutional since 1876 when Texas citizens limited the unrestrained power of the legislature to restrict keep and bear any way they pleased. They amended the constitution in 1869 to grant the legislature power to restrict keep and bear however they saw fit. What we got was 46.02, flagrant violations of all our most fundamental freedoms, and a despot governor who had to be removed by arms from the capital in 1873. The state amendments in 1876 and the 14th amendment to the US constitution were intended to correct these grievances.
We amended the state constitution in 1876 to strip them of that power and to repeal the odious 1871 ban on weapons possession. Yet here it remains on the books still today. Our only saving grace is the long history of case law, where although you can see many references to judges equating bearing (pre-1876) and wearing (post 1876), they have at least consistently ruled that 46.02 does not apply to the keeping of arms. If you find a handgun in the street, if you buy a handgun, if you're on your way to repair your handgun, if you're "traveling," 46.02 does not apply, and no other law exists to limit the way you choose to carry it. Is that enough assurance against 46.02? Not for me. The 46.02 law needs to be repealed along with many others, and our constitution needs to be restored to what we fought and died for in 1836. Until it's restored to keep and bear shall not be infringed, we'll never be safe.
chabouk wrote:I don't know if the cited case law covers "possessing, on or about one's person" a handgun while handling it in a gun store, but I do know that there's no statutory exemption. Just like there's no statutory exemption for a non-CHL carrying an unloaded handgun in a locked case into a gun show in hopes of trading or selling it. The gun shop employee OCing has exactly the same statutory protection: none.
Actually, I think you have it backwards. Our problem is not that there's no statutory exemption from 46.02. The problem is that there's no statutory exemption from our state and US constitutions. The 46.02 statute outlawed the keeping of arms altogether since after the 1871 law, you can't come into possession of a handgun to keep without violating 46.02. The courts have recognized the conflict between the law and the constitution, but rather than rule the law unconstitutional, they've carved out this blurry and weak protection of our right by case law.
It's spelled out clearly in the Texas constitution Article 1 SEC. 23. 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. Wearing. They can regulate how we wear arms. The 46.02 is a ban on both keeping and bearing arms. It's unconstitutional because the constitution was specifically amended in 1876 to make it unconstitutional.
The solution to bad laws that are inequitably applied: repeal them. Let's start with completely eliminating PC Chapter 46, which would put us back on par with Vermont. If there is enough demand for a license for purposes of reciprocity, we can add that separately, and be equal with Alaska and Arizona.
We tried that in 1876. If you read the Stephen Halbrook essay, Texas citizens expected that the constitutional amendment in 1876 would repeal the law. Not only do we need to repeal the chapter 46 laws, we need to amend our constitution back to what it was originally in 1836. Keep and bear shall not be infringed. We had just fought and died at the Alamo with pistols and Bowie knives in 1836. The constitution of 1836 guaranteed our right, and only a day after it was signed in Washington on the Brazos, the delegates had to flee for their lives from Santa Anna. We forgot that in 1869, and we have forgotten for all these years since 1876.