How do you feel about waiting now?

[HGWC]

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?

[d.jeffrey]

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?

[rbftfire]

Personally, I like concealed carry but having the option for open carry would be nice. It would be nice to know that I wouldn't have to worry about any trouble for failure to conceal.

[Charles L. Cotton]

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.

Yes, Heller most certainly is limited to having a handgun in your home.

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.

[HGWC]

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?

[HGWC]

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.

[HGWC]

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]

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.

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.

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

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. 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.

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

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.

Chas.

[DocNTexas]

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?

While I prefer to carry my weapon concealed if practical, living in Texas makes that very difficult at times. When the thermometer reaches triple digits or the humidity passes the centerline, it becomes very difficult to do anything outdoors wearing appropriate attire for concealment of a firearm, at least in a manner that makes it easily accessible. I have a closet full of assorted concealment vests and other garments that I have tried over the past 14 years and have yet to find anything that will work on a Texas scorcher of a day. About the only option one has is to resort to one of the fashionable fanny packs on the market, which not only looks silly, these days (at least in Texas) wearing one is like wearing a sign that say "I have a gun in here", so what is the difference there. In addition, they can pose a serious access problem, which can cost you in a critical situation and lets face it, that is what we carry them for...those critical life threatening situations. Despite my aversion to them, I have 4 different fanny pack designs and none of them offer foolproof, reliable, quick access to the weapon. And face it, when was the last time you had advance warning of a need to defend yourself? (If I have advanced notice I am simply going to leave and call the police.) This is the main reason I would like to see Texas pass open carry. While I prefer to conceal (as a personal preference), I prefer to open carry over not carrying at all when circumstances interfere with my ability to conceal carry in a practical and functional manner.

I travel extensively around the country, especially to New Mexico and Colorado where open carry has been legal for as long as I am aware of and I have open carried on numerous occasions without a single incident. No people running in fear; no lines of people stopping on the streets to stare at my weapon, and; no terrified calls to the police; just everyday business. At the same time, despite it being legal in these states, it is rare that one sees anyone practicing open carry (and I make it a point to watch closely out of curiosity). So, as with these states, the purpose of legalizing open carry in Texas is not because of people wanting to flaunt it or make a show, it is simply being allowed another tool for HONEST CITIZENS to use in protecting themselves.

Think about it, it appears you are insinuating that people who choose to open carry have ulterior motives other than simple self protection (like your statement of "wanting to strut around town with a six shooter on your hip") and, as such, should not be allowed to do so. You also seem to insinuate that the sight of a person openly carrying a firearm would cause fear and mayhem in the streets and serves no legitimate purpose. Well, first off, Texas is in the EXTREME MINORITY on this issue as open carry is only prohibited in a total of 6 state nationwide (and had it not been for the Governor's veto, that number would have dropped to 5 after the Oklahoma legislature overwhelmingly passed open carry this past session). So, is it your opinion that people in Texas are less capable of utilizing an open carry law than people in the other 44 states that allow it? Do you believe that the general population of Texas are less tolerant of or more fear ridden and prone to overreacting to the sight of a person openly carrying a firearm than those in these other 44 open carry states? Or is it that you feel the sight of an openly carried firearm or the act of openly carrying a firearm will cause shootouts in the street that would not occur if the firearms had been carried concealed? Seems to me I have heard all these claims before....oh yes, it was from the BRADY clan when opposing the Texas concealed carry bill in 1995 (and every other pro-carry action since). Everyone seems to think we here in Texas are different from the other state when it comes to our ability to responsibly carry firearms.

The fact is Texas is no different that the other 44 states that ALREADY allow open carry and just as these adverse event have not and do not occur in these states, these problems will not occur here either. What WILL occur is that Texas will join the vast majority of or fellow states and stop treating honest citizens as criminals by restricting their right to carry a firearm for self defense. While I do not think honest citizens should be required to pay in order to enjoy a personal (constitutional) right, I don't even mind them requiring me to submit to a background check and acquire a license to carry, as long as they do not restrict how I carry. (I am willing to acquire a license if it makes it easier and quicker to show authorities I am not prohibited from the practice.) Nevertheless, while you may not have a problem concealing year around, I do, and if conditions preclude me from dressing in a manner that allows me to effectively conceal my weapon, then my only option is to not carry (or risk violating the law myself), which means my right to self protection is effectively being denied by legal circumstance.

Incidentally, I find it interesting that most of the states which currently allow open carry do so as a carry over from the old days and old way of thinking that a concealed firearm is more dangerous than one you can clearly see, because a concealed weapon did not allow others (including law enforcement) to know they had it or where it was located. As such, these states passed laws against the CONCEALMENT of weapons, rather than the carry of them. They recognized that a person had a right and a need for self defense but also that open carry did not allow one to have the edge of secrecy. As for the sight of a gun scaring the polite town folk, well, that was not really a concern or problem. The same was true for Texas. When Texas passed their first handgun restrictions, they included a clause that would allow a person to carry a handgun for personal protection if they could show a legitimate threat had occurred against them but it was strictly stipulated that such weapon HAD TO BE CARRIED IN PLAIN SIGHT so that all could be aware of the weapon and where it was located. Now, here we are a century later worried that people might be frightened at the sight of a gun and requiring people to do just the opposite, not in the name of public safety, but out of concern for frightening someone.

So stop supporting the fear mongering tactics of the anti-gun crowd by using them to impose personal views and opinions on others under the guise of public safety and start accepting reality and facts which support alternative situations and views. If you do not want to open carry, by all means DON'T, but don't impose your choices on others. I feel everyone should carry in some manner for personal safety, but I do not intend to force that opinion on anyone. At the same time, if I find the need to open carry, then that should be my right and until there is clear evidence that the practice of open carry causes some public harm, then there is no reason to restrict it. The current 44 open carry states have provided us with ample evidence that legalizing the open carry of firearms poses no adverse threat to public safety or order while providing another means of self protection for law abiding citizens and as such it is time Texas follows their lead.

Doc

[HGWC]

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.

[Charles L. Cotton]

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?

I travel extensively around the country, especially to New Mexico and Colorado where open carry has been legal for as long as I am aware of and I have open carried on numerous occasions without a single incident. No people running in fear; no lines of people stopping on the streets to stare at my weapon, and; no terrified calls to the police; just everyday business. At the same time, despite it being legal in these states, it is rare that one sees anyone practicing open carry (and I make it a point to watch closely out of curiosity).

I too travel all over the country and have been for 35 years. My experience mirrors yours; although technically legal in 44 (so to be 43) states, it just isn't done. It a rarity to see someone openly carrying, so claiming that 44 states allow OC is disingenuous and grossly misleading. It's perfectly legal to ride your horse to work, but I certainly don't see any in downtown Houston. So pointing to
an act that is legal but not done, then claiming the experience in those 44 states is somehow indicative of what the public reaction will be in Texas is not only illogical, it ignores what happened in Texas from May, 1995 until Sept. 1, 1997.

If open-carry were truly not an issue in 44 states, then OpenCarry.org would not have any reason to exist. If you look at the majority of their posts, they deal with complaints about how people openly carrying were treated in the states where it is allegedly legal.

Well, first off, Texas is in the EXTREME MINORITY on this issue as open carry is only prohibited in a total of 6 state nationwide (and had it not been for the Governor's veto, that number would have dropped to 5 after the Oklahoma legislature overwhelmingly passed open carry this past session).

Perhaps Texas is in the minority in terms of what is technically legal or illegal, but we not in the minority of what is actually occurring on a daily basis. As you acknowledged, people just don't open carry in the 44 states where it is allegedly legal.

When Texas passed their first handgun restrictions, they included a clause that would allow a person to carry a handgun for personal protection if they could show a legitimate threat had occurred against them but it was strictly stipulated that such weapon HAD TO BE CARRIED IN PLAIN SIGHT so that all could be aware of the weapon and where it was located.

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.

So stop supporting the fear mongering tactics of the anti-gun crowd by using them to impose personal views and opinions on others under the guise of public safety and start accepting reality and facts which support alternative situations and views.

Now you've gone way too far. Putting this kind of label on people who disagree with you is not acceptable here at TexasCHLforum. I understand why many people want to carry openly during hot Texas summers and I understand that many people want to carry openly for other reasons. I respect those opinions and I don't disagree with them either. I have one and only one reservation to OC and it's based upon what actually happened here in Texas, not on the theoretical experience in other states. If you can't state your position without insulting those who disagree with you, then don't post.

Chas.

[HGWC]

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]

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.

I am acknowledging no such thing! You apparently have no earthly idea how constitutional law is interpreted or how Supreme Court decisions are applied. You look to the the actual order of the Court to determine it's ruling and that is limited to possessing an operable handgun in your home.

McDonald incorporated all of the Second Amendment to the states, but "all of the Second Amendment" at this point includes only 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.

You cannot possibly believe the stuff you write. I never said the Heller decision defined the limits of the Second Amendment. I said the ruling in Heller is limited to having an operable handgun in your home. Future Supreme Court decisions will determine the limitations of the protections offered by the Second 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.

Correct. However, contrary to your original assertion, it will take more Supreme Court cases to determine what gun laws are constitutional and which are not. Those cases have to start in the federal district courts, then they go to the Circuit Courts of Appeals, then finally to the U.S. Supreme Court. Your original position was that the combination of Heller and McDonald have made all gun laws unconstitutional. You are now back-peddling from that absurd position and arguing that attorneys can bring challenges to additional gun laws. Of course they can; that's precisely what we are going to do. But Heller and McDonald are the basis for future challenges, they were not the "end game."

Like you've already pointed out, Heller was more than just merely striking down one specific law in DC.

Stop misstating my position; I said no such thing. I've made it abundantly clear; all Heller did was hold that laws banning possession of operable handguns in one's home are unconstitutional.

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.

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. Yes, they will be the basis of future cases that will expand the protection of the Second Amendment, if we keep a pro-gun majority on the Court.

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. You'll lose, that's what will happen! Why, because Heller has nothing to do with carrying a handgun, only possessing one in your home. But by all means, don't just pontificate here on TexasCHLforum, jump in with both feet. I'll even contribute to your legal defense fund. Very revealing dicta in Heller makes it clear that at least some licensing requirements will be held constitutional, so good luck arguing that TPC §46.02 is unconstitutional. 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!?

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

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.

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.

That fact that your arguments are utterly devoid of any rational or legal basis is exemplified by your repeated misquoting of my position on issues. Dicta by definition is not controlling, but it is a road map as to how a court may/will rule on issues when they are presented. Dicta in Heller clearly indicated the the Second Amendment would be incorporated via the Fourteenth Amendment, in spite of Cruikshank. Dicta doesn't control anything, but only a fool ignores it.

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.

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.

I renew my invitation to become the test case. Or would you prefer to have someone else stick their neck out while you stand on the sideline and cheer them on?

Chas.

[DocNTexas]

I too travel all over the country and have been for 35 years. My experience mirrors yours; although technically legal in 44 (so to be 43) states, it just isn't done. It a rarity to see someone openly carrying, so claiming that 44 states allow OC is disingenuous and grossly misleading.

It is NOT misleading and is actually sort of the point, Charles. The original post, for which I was replying, brought up numerous concerns regarding the legalization of open carry in Texas and the attitude of those who support such a law. My point was exactly that...i.e. despite being legal, few people actually do it on a regular basis, thus indicating that people are NOT out to strut around and show off their sidearms as was suggested. It was also meant to show that just because an act is legal it does not arbitrarily mean everyone will be doing it or that there will suddenly be problems associated with it.

So pointing to an act that is legal but not done, then claiming the experience in those 44 states is somehow indicative of what the public reaction will be in Texas is not only illogical, it ignores what happened in Texas from May, 1995 until Sept. 1, 1997.

Using the actions and reactions experienced by other states in similar circumstances to predict the results here is completely logical and done daily. It is a common tool used to predict outcomes. States commonly look to other states as guides before passing legislation. Texas is not dissimilar to other states and can be expected to experience the same results to given situations. Again, one of the points was that despite being legal, few practice it on a regular basis and that legalizing open carry here would not pose any more problem than other states have experienced (which is minimal compared to the benefit).

As for what you refer to as happening between May 1995 and Sept. 1997 being ignored, well, I guess I am having an Alzheimer’s moment there, because I can't seem to come up with anything relevant to this discussion. You will have to provide more info there concerning your point. However, I am assuming you are referring to the passage of the concealed carry law and the challenges that followed (correct me if I am off base). If so, I would point out that it was not ignored, in fact, it supports the position here, in that, none of the fact-less claims of gloom and doom thrown out in opposition came to pass (incidentally, a position clearly indicated by the 40+ other states that already had concealed carry prior to Texas passing it).

If open-carry were truly not an issue in 44 states, then OpenCarry.org would not have any reason to exist. If you look at the majority of their posts, they deal with complaints about how people openly carrying were treated in the states where it is allegedly legal.

I disagree with this assumption. OpenCarry.org exists to promote open carry where it is not allow and to protect the rights of those who choose to practice their right to do so where it is legal. Saying that OC.org would have no reason to exist is like saying the TSRA and NRA have no reason to exist because gun ownership is already legal and a constitutional right. Just because it is a legal right does not mean entities and people with opposing views do not infringe on those rights of those who practice this right, thus requiring protection. As a lawyer you see that on a regular basis. While you are correct that people are challenged on a regular basis for legally open carrying a handgun, it does not mean that they are wrong for doing it or that the right should not be pursued. Peoples rights are challenged daily in a multitude of ways...should we simply say forget about it? Or should we fight to keep them? If we simply dropped every issue that someone chose to deny we would have no rights at all and you would have no job. The point of OC.org is that OC is legal in these areas and people should not be persecuted for exercising that right. At the same time, most of the persecution is at the hands of law enforcement and government officials, not the general public. If you remember, this was true with concealed carry in the early days. Many LEO and LE agencies treated CHL holder like criminals when encountered, but now days it is rarely a problem. The same is true for businesses...many posted signs in the beginning and now it is the exception. So, I feel your assumption is clearly unsupported here.

Perhaps Texas is in the minority in terms of what is technically legal or illegal, but we not in the minority of what is actually occurring on a daily basis. As you acknowledged, people just don't open carry in the 44 states where it is allegedly legal.

I don't think there is much more to say here...you pretty much made the point I was making, which is, legalizing open carry in Texas would not pose a real problem, as proven by the other states that allow it. One, few people actually practice it, and; two, there are few issues with those who do.

When Texas passed their first handgun restrictions, they included a clause that would allow a person to carry a handgun for personal protection if they could show a legitimate threat had occurred against them but it was strictly stipulated that such weapon HAD TO BE CARRIED IN PLAIN SIGHT so that all could be aware of the weapon and where it was located.

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.

Yes I do, but you will have to afford me time to look it up and get it to you. I do not have it readily at hand, but I will locate it and get it to you.

So stop supporting the fear mongering tactics of the anti-gun crowd by using them to impose personal views and opinions on others under the guise of public safety and start accepting reality and facts which support alternative situations and views.

Now you've gone way too far. Putting this kind of label on people who disagree with you is not acceptable here at TexasCHLforum.

First off, I was not labeling anyone, I was merely responding to the allegations and insinuations made by the poster for which I was responding. The original post insinuated that people who supported open carry were merely wanting to "strut around with a six shooter on their hip" and made assertions that if open carry were legal in Texas it would cause all kinds of gloom and doom problems. I merely pointed out that these claims were unsupported by any fact or evidence and mirrored the tactics used by the anti-gun establishment to further their cause in the absence of supporting factual data. It is my opinion that when we use the same fact-less claims to support opinions and positions within our community it just lends credibility to those who us the same methods against us.

I understand why many people want to carry openly during hot Texas summers and I understand that many people want to carry openly for other reasons. I respect those opinions and I don't disagree with them either. I have one and only one reservation to OC and it's based upon what actually happened here in Texas, not on the theoretical experience in other states.

First off, the experiences of other states that allow open carry is NOT "theoretical", it is factual. A theory is an "idea" derived by applying known parameter but not supported by actual application. It is a prediction of what would happen "IF" applied. In the case of states that actually allow open carry, they do not provide "theoretical" data, they are actually experiencing the application of the law, thus their data is FACTUAL. As for your statement of basing your opinion on "what actually happened in Texas", there again I am at a loss for your point. What has actually happened in Texas relating to the open carry of handguns for which you base your concerns? To my knowledge open carry has not been tried, so there is no factual experience to rely on here. Any concerns based on Texas information are merely "theoretical" because we have not actually tried open carry. And if we look to sources that actually allow the practice we will find the factual data to dispel any such fears. By discounting the evidence provided by other states that allow open carry in lue of unsupported speculations of gloom and doom is not rational...it is nothing but fearing monsters in the dark. Every time concealed carry is mentions in one of the few place it is not currently allowed, the anti-squad chants the same old list of gloom and doom the have at every turn and to date it has never come to pass. That is all you are doing here. Open carry has pose no significant problem anywhere else and to suggest different results in Texas represents nothing but but base-less opposition.

The fact is, there is a legitimate need for legalizing open carry in Texas; there is no evidence to support the fearful claims of gloom and doom being used to oppose the legalization of open carry here; there is overwhelming evidence that the existence of legal open carry in a state is safe and does not pose a risk to public safety or order, and; in the absence of a justifiable, proven need or benefit associated with a given restriction, that restriction becomes nothing more than a violation of ones rights. The courts have agreed that the right and benefits of the many can supersede the right of the individual but there has to be an impact on the many before the individual right can be removed. In this case, there is no supporting evidence that open carry will pose a problem if passed, thus, there is no legitimate reason to restrict it.

One more point, currently it is legal to carry a long gun slung over ones shoulder in public (with some specific exceptions of course) yet few do it. And when it does occur (and I have seen it), they are often the target of police harassment. This does not make it a crime or make the person wrong for exercising that right. While I have no intention of doing it, I like having the right to if the need arises. The same is true for open carry of a hand gun.

If you can't state your position without insulting those who disagree with you, then don't post.

Charles, I support everyone’s right to an opinion and their right to express it, and I openly welcome them, even when I totally disagree with them. Furthermore, I do not "attack" people with my posts, but I do reserve the right to respond in kind and to point out things I feel they are doing which are detrimental to the group and the cause overall. If pointing out what I see as similarities to the opposition makes you feel like you are being attacked, I am sorry, but when I see people within our group (that being pro-gun) using fact-less claims to counter the opinions of others they disagree with, I feel it is only right to point out how this is the preferred tactic of our opposition and how it lends credibility to their use of such tactics. It is like the old story of the mother who when asked about her daughter exclaimed "Her husband is a real jerk...he makes her clean, cook and work all day while he sits on the couch and watches TV". Then when asked about her son happily exclaims "Oh, he has the best wife...she does all the cleaning, cooking and house work and doesn't let him do anything but sit on the couch and watch TV all day". In other words, we must watch out for the double standard.

So, before you chastise me and tell me not to post replies for defending a position and responding to allegation and assertions in kind, perhaps you need to take a moment to review the circumstances and consider the intent and nature of the reply. It is often hard to convey ones attitude and intent in a short written post like these, so readers need to allow room for interpretation. If you want to question my intent or have me clarify something, by all means ask, but it is very clear from your posts above that you misread and/or misinterpreted much of my post. If this is a dictator forum, then tell me now and I certainly won't be back, but if it is an open discussion arena then afford me the opportunity to state my case and clarify any remarks before you criticize me.

Doc

[HGWC]

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

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.

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

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.

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.

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.