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- Topic split off from Political Discussion forum -

I know it comes up periodically, but the topic came to my mind after talking about the 30.06 signs at the Tea Party and the gun shows in Pasadena. The argument was whether it's genuinely legal to OC a handgun (unloaded) at a gun show, or for employees/customers to OC in a gun store, and the like.

My thought on it is, yes, it'd be legal in both occasions. Employees at a gun store are pretty clear-cut, I believe: I would presume that any given employee, if he's carrying a handgun, has the permission of the owner or manager of the premises to throw anyone out for any legitimate reason, without needing to first ask him/her to do it (although they might anyways to be sure). To me, that presupposes "legal control" of the premises, and if they possess legal control of the premises, then 46.02 doesn't apply to them.

For us members of the general public, I would make two arguments for its legality. For gun shows in particular, I can see an application of §46.15(b3): "Section 46.02 does not apply to a person who: is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence or motor vehicle, if the weapon is a type commonly used in the activity." "Sporting activity" isn't defined by the section nor does it reference another, so it defaults to the common dictionary meaning of the term, which would be: "an activity, organized or disorganized, which is done for enjoyment when a person isn't engaged in employment or other obligations." (New Oxford American). A gun show, to the large majority of attendees, seems to me to be an activity done for relaxation and the pursuit of pleasure... we go to them because they're a meeting of like-minded individuals having a good time while buying and selling things. The vast majority of shows I've gone to, I haven't bought or sold a thing; I go to talk to folk, see what I might like to get in the future, drool over things I could never afford, and chuckle about beef jerky.

A more general argument for its legality is not founded statutorily, but constitutionally. 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." 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). However, Art. 1 Sec. 23 qualifies the power of the legislature to enact restrictions on carrying weapons only if such restrictions are intended to, and actually further the goal of, preventing crime. Because buying a handgun and bringing it home is legal when you comply with the laws regulating the purchase of firearms, no crime is committed inherently, and the state has no constitutional leg to stand on in regard to "preventing crime." Likewise, milling about a gun show with a zip-tied, unloaded, holstered handgun is not done with the intent of furthering any criminal goal (and decades of such activity backs that up, which is strong precedent to quote in court), I don't believe the constitutionality of §46.02 would stand in that situation.

Thoughts and opinions?

By jove Holmes, I think you've solved it! (says Dr.Watson to Sherlock)

As this topic has been kicked around to many times for me to remember, yours by far is the most plausible explanation.

denwego wrote:To me, that presupposes "legal control" of the premises, and if they possess legal control of the premises, then 46.02 doesn't apply to them.

If it's their premises or premises under their control, that's true. And it's true regardless of the type of store or other business, and whether or not the management allows handguns.

I like the effort you took the read the codes! I don't think it would work but it's worth a shot. A call to your local DA/CA may be in order and bounce this off of them.

boomerang wrote:

denwego wrote:To me, that presupposes "legal control" of the premises, and if they possess legal control of the premises, then 46.02 doesn't apply to them.

If it's their premises or premises under their control, that's true. And it's true regardless of the type of store or other business, and whether or not the management allows handguns.

But in this same forum it was stated it was illegal to OC at a friends BBQ but he is in ""legal control" of the premises, and if they possess legal control of the premises, then 46.02 doesn't apply to them".

Many of the exceptions to PC 46.02 are based on case law.

See this essay by Stephen Halbrook: http://www.guncite.com/journals/haltex.html#h5.2" onclick="window.open(this.href);return false;

Check the footnotes starting at 219 Kellum v. State, which make it legal to buy a handgun, take it home, take it to a gunsmith for repair, or carry occasionally to protect valuables or for self-defense, among other purposes. (This is all decades-old law that predates the CHL law.)

There's no BBQ exception.

The entire essay, though long, is a fascinating history of how this state went from completely unregulated weapons carry to the situation that existed in most of the 20th century.

- Jim

rm9792 wrote:But in this same forum it was stated it was illegal to OC at a friends BBQ but he is in ""legal control" of the premises, and if they possess legal control of the premises, then 46.02 doesn't apply to them".

The difference is that the BBQ host may carry on his property but not give guests permission. The store owner may carry on his property and, by virtue of their employment make the employees in control of the premises, thus allowing them to carry.

I would guess that a BBQ host could tell one of the guests that they were also in charge of who came into the party, thus making them in control also, but that would seem unlikely to stand up in court unless they actually did something to demonstrate control. It would be a fine line between being a guest helping control the party and being a volunteer doorman/bouncer, which might require a security license and uniform to be armed.

Always count on Steve to set me straight. Figured there would be some employment requirement.

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).

SeamusTX answered correctly about some exceptions being covered by case law. Others are not.

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.

For those of us who focus on the dangerousness of laws by how they might be abused, rather than not worrying about it because they're "not intended" to apply to "us good folks", these gray areas are extremely troublesome. I'm as opposed to "zero tolerance" policies as anyone, but that's because I believe the laws shouldn't be written so broadly and stupidly as to result in injust outcomes when someone wasn't doing wrong. I also believe the laws should be equally enforced, and the fastest way to change a stupidly broad law is to enforce it with zero tolerance. And that's what prompted the change in Texas: regular law-abiding middle class white folks became afraid to carry as their peers had done for decades, because they were now at risk of being arrested, where their forebears weren't.

Just imagine how much quicker we'd have achieved legal carry in Texas if UCW had been enforced with as much "zero tolerance" against pillar-of-the-community white widows on their way to church, as it was against Jose the carpenter or Roosevelt the barber.

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.

The OP is the 2nd person I have seen in the last 2 weeks that must really like my Avatar.

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.

Nothing to add, just wanted to say GREAT THREAD.

The problem with bad laws is that they grow constituencies.

Every section of Chapter 46 has some party defending it. The upper management of police forces generally aren't well disposed toward armed citizens. The vast majority of school administrators don't want weapons in schools. Judges don't want armed citizens in courthouses. And so it goes for industrial plants, professional sporting events, racetracks, etc.

I'm not saying most of Chapter 46 can't be repealed, or the state constitution can't be amended. But it will be an uphill struggle.

At this point I can't resist inserting a snarky comment about the 9/10s of Texas CHL holders who can't get around to joining the TSRA. Those other constituencies do not lack lobbying funds.

- Jim

seamusTX wrote:The problem with bad laws is that they grow constituencies.

That's why we have a constitutional republic instead of a democracy. That's why we have a constitution and three branches of government instead of one.

At this point I can't resist inserting a snarky comment about the 9/10s of Texas CHL holders who can't get around to joining the TSRA. Those other constituencies do not lack lobbying funds.

When the leadership at the TSRA will recognize that the legislature is only one of the three branches that govern our state, perhaps they'll have less trouble with fund raising. It's unfortunate that Texas will sit on the sidelines while other states lead the nation with reform through the judiciary. People tend to support organizations that best represent their interests.

HGWC wrote:That's why we have a constitutional republic instead of a democracy. That's why we have a constitution and three branches of government instead of one.

Those facts got us exactly where we are today at both the state and federal level.

If you have a legal strategy for restoring a completely unfettered right to keep and bear arms, please let everyone know.

Meanwhile, I will continue to support the organizations that have a record of legislative success.

- Jim