TexasCHLforum.com

Now back to the OP....

After reading a substantial portion of all the briefs for Heller and all the incorporation cases, including McDonald, and seeing all the historical references to just how fundamental and important the 2nd Amendment is to our society and our freedom, I'm left choking on the thought that Texas has us waiting indefinitely for permission to possess a handgun in public. I'm left choking over the fact that this 1871 law that is still on the books today is exactly the kind of law that a bulk of the McDonald opinion talked about. I'd really be surprised if I'm the only member especially in this waiting forum that felt this way. How long do you think you'll have to wait before you come to the conclusion that you've been denied your rights?

Charles L. Cotton wrote:The only thing Heller did was 1) hold the Second Amendment to be an individual right;

HGWC wrote:You just acknowledged that Heller held that the 2nd Amendment is an individual right.

I am acknowledging no such thing!

Really!

Your original position was that the combination of Heller and McDonald have made all gun laws unconstitutional.

How about you provide the direct quote where I said that?

I'm so tired of repeating this "Heller and McDonald do one thing and one thing only; they hold laws that ban possession of operable handguns in your home unconstitutional." No matter how many times you say otherwise, no matter how loudly you scream it, these two cases do nothing more than let you have a handgun in your home.

I don't have to scream anything Charles, and characterizing me that way is called ad hominem, which I thought you made a point that that kind of discourse wasn't allowed here. All I have to do is provide direct quotes to where you did in fact state exactly what I've said you stated.

The only thing Heller did was 1) hold the Second Amendment to be an individual right; ....... snip

If you believe as strongly as you claim that all of TPC §46.02 is unconstitutional, then walk around openly carrying a handgun in front of a police officer, get arrested, go to court and get convicted, then appeal relying on Heller and see what happens.

Well, that would be one way of course to publicize my opinion, but that's not the way it worked in Chicago or DC. I could also just speak out my opinion in public like I'm doing now.

Very revealing dicta in Heller makes it clear that at least some licensing requirements will be held constitutional.

That's very true, and likewise it gave no indication that requiring citizens to spend $250, mandated training courses, and indefinite delays as part of that licensing process would survive.

Remember, your champion Alan Gura stated during oral arguments in Heller that requiring a license to even possess a handgun would be constitutional! Even with this language in Heller and Gura's admission, you think requiring a carry license will be struck down as unconstitutional!?

Heller is challenging these exact types of onerous regulations right now. He may indeed lose, but there's no reason given in Heller to assume that he will.

Charles L. Cotton wrote:Claiming that Heller or McDonald guarantees the right to carry a handgun without a license is flat wrong.

HGWC wrote: I never claimed that.

Yes, that's precisely what you are arguing even before this thread. In this specific reply post you are claiming that, based upon Heller and McDonald, TPC §46.02 is unconstitutional. So you are claiming that you can carry a handgun without a license.

You're still mixing and matching and reading into what I said.

Charles L. Cotton wrote:

HGWC wrote:You've also understated Heller by claiming that it only overturned a specific law in DC, while acknowledging in the same paragraph that I was correct in saying the ruling was more than that.

You are mistaken, you're not correct about anything you have argued. I apologize if I confused you.

Here it is in direct quotes. Your first statement is that there were two holdings, then even in the same paragraph you say there was only one. Just like you said. There is more than the one narrow holding of one specific law in DC.

Charles L. Cotton wrote:The only thing Heller did was 1) hold the Second Amendment to be an individual right; and 2) hold that absolute bans on possessing handguns in your home are unconstitutional. The opinion was based on the very important recognition of an individual right to self-defense as well as the recognition that handguns are the "quintessential choice for self-defense" by Americans. Nevertheless, the only thing Heller did was strike down a law that banned handguns in the home.

And I think that summs it up Charles. I don't think we're covering any new ground here. Constitutional lawyers and justices on the 9th Circuit Court of Appeals are already arguing based upon Heller even though their cases have absolutely nothing to do with handgun possession in the home in DC. Some will be winners and others losers.

Charles L. Cotton wrote: Do you have a cite to this law? I'm an attorney who has been a gun rights advocate for over 30 years and I've never seen nor heard of this law. I'm not saying you're wrong, I'd just like to see and analyze it.

It's the original 1871 law. I was just wondering myself what happened to the exception for imminent threat. Do you have any reference to the history of changes to this law of the years?

Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor .... Provided, That this section shall not be so construed as to prohibit any person from keeping or having arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or revenue officers, and other civil officers, from keeping or having arms, while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage....

Charles L. Cotton wrote: The only thing Heller did was 1) hold the Second Amendment to be an individual right; and 2) hold that absolute bans on possessing handguns in your home are unconstitutional. The opinion was based on the very important recognition of an individual right to self-defense as well as the recognition that handguns are the "quintessential choice for self-defense" by Americans. Nevertheless, the only thing Heller did was strike down a law that banned handguns in the home.

You just acknowledged that Heller held that the 2nd Amendment is an individual right. By acknowledging that, you've acknowledged that Heller did more than to strike down only one specific law in DC.

McDonald incorporated all of the Second Amendment to the states, but "all of the Second Amendment" at this point includes on the right to have a handgun in your home, per the Heller case.

The Heller case did nothing to limit the scope of the 2nd Amendment. The 2nd Amendment has never been limited to handguns for self defense in the home. Heller explicitly added that to the scope of the 2nd amendment. The fact that Heller was a case limited in scope to a specific law restricting handguns in the home in DC did nothing to limit constitutional attorneys from challenging California's laws against public commercial possession of handguns in the Nordyke case. It did nothing to prevent the appeals court justices in the 9th circuit from ruling, based upon Heller and based upon the 14th Amendment incorporation doctrine, that they didn't even have to wait on SCOTUS to rule that the 2nd Amendment was already incorporated. Like you've already pointed out, Heller was more than just merely striking down one specific law in DC.

I think that the Second Amendment includes much more than merely having a handgun in your home. I believe it provides a right to carry handgun as part of the newly-recognized "right to self-defense." I believe the Second Amendment significantly limits the restrictions that the federal government, state government and local governments can place on possessing, carrying and using handguns for self-defense.

I think that for the most part, we agree, but these two rulings already are having a more far reaching effect than you seem to be willing to acknowledge. In particular, I don't see how 46.02 can stand against any level of scrutiny, which is one of the main points that are left to be decided. The law flat out says it's illegal to possess handguns and other weapons in public. I just can't imagine that this law will stand in the end.

But what I believe is not relevant; what counts is what the U.S. Supreme Court says and thus far, we have only the holding in Heller and it most certainly is limited to having a handgun in your home. If we keep a favorable Supreme Court majority, then the protections of the Second Amendment will be expanded and, yes, it will require that many more cases work their way through the Supreme Court. This fight will be measured in years, not months.

Again, the Heller ruling is substantially more than overturning a specific law in DC. For example, the Second Amendment Foundation has already filed a suit to overturn North Carolina's emergency powers gun ban. You can bet that just as in the Nordyke case (public commercial handgun possession), just as in the Maloney v Rice case (home nunchaku possession), the SAF attorneys will argue substantially based upon Heller, and now McDonald, even though none of those cases have anything to do with handgun possession at home in the District of Columbia.

From the SAF: "The lawsuit contends that state statutes that forbid the carrying of firearms and ammunition during declared states of emergency are unconstitutional. Plaintiffs also contend that a North Carolina law that allows government officials to prohibit the purchase, sale and possession of firearms and ammunition are also unconstitutional because they forbid the exercise of Second Amendment rights as affirmed by Monday’s Supreme Court ruling in McDonald v. City of Chicago, the landmark Second Amendment ruling that incorporated the Second Amendment to the states. "

That's right. They are arguing, based upon Heller and McDonald, that state laws banning public possession, sale and purchase of firearms are unconstitutional. That's exactly the point. In my opinion, the Texas law 46.02, in that it specifically bans firearms and other weapon possession in public, is just as ripe for a constitutional challenge as any other law in the nation.

Claiming that Heller or McDonald guarantees the right to carry a handgun without a license is flat wrong.

I never claimed that.

The not-so-favorable dicta in Heller indicates that licensing procedures, limitations on where handguns can be carried and by whom will be found constitutional. So your argument that all of TPC §46.02 and the Texas CHL statute are now unconstitutional due to Heller and McDonald flies in the face of the express language in the majority opinion in Heller.

Let's be consistent. First you want to limit the opinion Heller to only one of two holdings you've acknowledged when that suited your purpose. Now you want to expand the ruling to include the dicta when that's convenient, not to mention expanding the dicta comment about licensing to any licensing procedure. The Heller opinion did not rule that any licensing procedures for CHL (handguns only) could shelter a law that bans public possession of not only handguns but other weapons as well. That's why Heller immediately filed another lawsuit challenging the onerous procedures required to license his handgun in DC. It's still working it's way through the system. We're going to quickly see other similar lawsuits in Chicago, New York, and California. Why if this was made clearly futile by Heller are leading constitutional attorneys taking on these cases?

We have won two great victories that will be the foundation for expanding the scope of Second Amendment protections, but only if we stay in the political fight and keep a favorable majority in the Supreme Court. Overstating the holdings in Heller and McDonald doesn't help our cause, it hinders it by fomenting dissension among people who support the Second Amendment. We need to be unified, not divided.

You have overstated Heller by implying that the dicta forecloses as a certainty that any licensing procedures will be found constitutional. You've also understated Heller by claiming that it only overturned a specific law in DC, while acknowledging in the same paragraph that I was correct in saying the ruling was more than that.

Again, I argue that in Texas a political fight in the legislature is not the only avenue we should be taking. Fortunately, leaders in other states will be fighting these similar laws in the judicial branch of government. Challenging these laws in court and winning cases in court can also have a significant impact on the political fight.

One other thing Charles. That was an interesting point you made that the McDonald case extends the Heller case to the states. What I read was:

"We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."

What that and rest of the concurring opinion says to me is that they ruled for incorporation of the 2nd Amendment. I don't think there's anything in the Heller decision that limits or defines the full scope of that right. They specifically avoided doing that. Heller merely defines a narrow scope of what is included within that right. Are you saying that this ruling merely incorporates only that small sliver of the 2nd amendment, and that any other part of the whole right is not incorporated? Are you saying we have to go through this whole loop in DC for the 2nd amendment and again for incorporation of every other sliver of the 2nd amendment right? If that's what you're saying I hope you're wrong. If you're right, it's certainly big news that no one else in the country is reporting.

What about the other cases that were pending McDonald on the issue of incorporation? What about the case relating to possession of nunchucks (however you spell that)? Wasn't that a public possession case? That was appealed and the appeals court ruled they were bound to rule the 2nd amendment didn't apply to the states. Are they going to have to appeal to the SCOTUS now since that case had nothing to do with handguns in the home, or is it settled that the 2nd amendment is incorporated? What happens to this case, and if the SCOTUS ruled that only the Heller limited right is incorporated, what happens to Nordyke where the 9th circuit ruled the whole 2nd amendment was incorporated? That case also didn't have anything to do with handgun posssession in the home.

Charles L. Cotton wrote:

Heller wrote:In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

Opinion, Pg. 64 (Emphasis added.)

McDonald extends the Heller opinion to state and local governments.

The rest of your argument relies on the erroneous belief that Heller and McDonald apply to carrying handguns outside the home and they clearly do not. We will get there with future cases, if we don't lose Justice Kennedy to an anti-gun judge.

Chas.

Yes Charles, the ruling was limited to a specific case relating to exercise of the right in the home in Chicago. Just as it didn't specifically overturn any other similar bans on private possession, it didn't overturn 46.02 either. However, isn't the reasoning behind the ruling binding as well? Wasn't the reasoning behind the ruling that RKBA is a fundamental and individual right to self defense? No doubt these rulings are necessarily narrow. However the SCOTUS has made it clear that RKBA is a fundamental right to self defense that we are now protected from both state and federal infringement. It's more clear to me than ever before that the CHL laws in Texas are not just a benefit provided to us by the government. There is no limitation on public or private in the 2nd amendment any more than there is in the 1st. We should not be waiting to be granted that benefit. The 46.02 law should be repealed for the exact same reasoning as the bans on private possession in DC and Chicago.

d.jeffrey wrote:So what you are saying is, you want to be able to wear your weapon in public, unconcealed. Like in Arizona?

Can I ask you a question?

Why?

Hey, don't get me wrong. I am all for the right to keep and bear arms. I have been carrying concealed for 8 years. But, why do you want to strut around town with a six-shooter strapped to your hip? Seriously.....why? Are you in such a high crime area that you need easier access to your piece?

Well first off, how about not limiting me to your presumptions about why I want the law repealed?

I want the law repealed because 46.02 is an infringement on all our rights. I want it repealed because it puts a chill on the freedom and safety of our whole society. I want it repealed because 46.02 is an insult to us all as men and free citizens. I want it repealed because I hated and deeply resented having to jump through hoops and wait 110 days before I could carry my handgun for self defense in public. I want it repealed because my wife is still too intimidated by these state laws to carry the handgun I bought for her. I want it repealed every time I see an otherwise lawful citizen arrested simply for possessing a handgun. I have lots of reasons for despising this odious law, and none of them have anything to do with "strutting around town" with a gun.

We amended the US constitution in 1868 to prevent this law. We amended the Texas state constitution in 1876 to repeal this law. Both of these amendments were nullified by the Slaughterhouse and related state cases. We're still waiting to have our rights restored in the State of Texas. I was just wondering, particularly in this forum, how people feel after the McDonald case was decided about waiting before you're granted the benefit of a CHL by the State of Texas?

The SCOTUS just ruled that our right to keep and bear arms for the purpose of self defense is guaranteed against state infringement. Nowhere in this ruling, nor in Heller, does it limit this right to just in the home. Keep and bear shall not be infringed.

I assume you have a handgun. I assume you wish to keep and bear that handgun in public for self defense. You have a right to defend yourself in public with that gun. You have that right today. Yet our state continues to deny our right to defend ourselves in public. The chill the state puts on the exercise of our right prevents us from living in a society where an armed populace, in public, is an effective deterrent to violent crime. Which other state will we continue on with our ride on coat tails, or will we finally step up and lead the way? How long will we wait collectively before we force our state to recognize our right to keep and bear arms, in public as well as at home? When will we eliminate this forum of shame? Would you wait for a state license to speak in public? No one in Texas should wait to exercise their right to keep and bear arms.

We've put up with 46.02 since 1871. In 1876, we amended the state constitution with the intent of repealing this odious law. We took away the power of the legislature to regulate keep and bear any way they saw fit. Giving them that power in 1869 got us 46.02, along with a massive deprivation of all of our rights, along with a despotic governor that was only removed from the capital at arms in 1873. We were reminded that power had to be taken from them, and we amended the constitution to do it. Yet even after the 1876 amendment, the law has stood until today. Wearing. They can regulate the way in which we wear arms. They cannot prohibit the possession of arms in public, which is exactly what 46.02 says. How long will we continue to tolerate 46.02 under either our state constitution or the 14th amendment to the US constitution?