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Good thing, In Islam, Muslims are recommended to carry. Carrying is symbol of maturity, nobleness, courageousness. Since historically, you would never able to conceal a 4' sword, and only have a small dagger in your waistband. Both methods of carry are permissible.

PATHFINDER wrote:Since the McDonald decision incorporating the 2A into midst of the whole of Texas handgun law - common law, statutory law, and case law - the provision of Section 46.02 "criminalizing" unlicensed carry of a handgun without regard to concealment is null and void.

I agree with the sentiment but strongly disagree with the legal interpretation. There are some important considerations to remember about this. One is how the SCOTUS rulings work and the other is exactly what the MacDonald and Heller decisions said.

First, you must remember that SCOTUS cannot truly overturn a law, only the legislature can. The law is still on the books and can be enforced by a peace officer. This is especially true if the law in the court case was not the exact law in the case. As proof of how this works, check the penal code for its sections on sodomy. They are still there, years after the Lawrence decision said it was an unconstitutional violation of people's rights. If an officer decided to arrest for it, he could. The case would probably not be prosecuted, and would almost definitely be overturned if a conviction made it to an appellate level, but the law is there. All the officer has to do is claim the court made the wrong decision or the specific facts of this case are different from the case where the court made the ruling. Proof of this is all the repeat cases that go up and where prior rulings get overturned (like Lawrence overturning a Georgia case whose name I cannot remember).

Second, and even more important for this discussion, is that the court has never ruled yet that a restriction on carrying a weapon is unconstitutional. Heller and MacDonald were specifically about the ability to own a gun and keep it in the house. They were brought forth on very narrow grounds and ruled on very narrow grounds. I think this was done for good tactical reasons, such as winning the case with the least trouble first. Now will come a whole series of cases over the next decade or two, that will determine the full extent of the 2nd Amendment. This can be seen in the two Lubbock cases, which I find interesting and look for good rulings on. In the one case, they are not even questioning if requiring a CHL is valid or not, just if banning a CHL for an adult because of his age (under 21) is valid. The second is to determine if it is legal to ban the same person from buying a handgun from a licensed dealer (especially when he can buy it from another person who is not a dealer or can buy a rifle from a dealer).

In this case, I think Texas beat the unconstitutional method of banning carrying when they passed the CHL laws. This is based on the Texas Constitution where it says the legislature can regulate the wearing of firearms with an eye to curtail crime. Prior to 1995, there was a total ban on carrying in most cases, which i snot, IMO, regulating. But requiring a CHL is clearly a method of regulating and meets the Texas Constitutional requirements. It may turn out to be a violation of the 2A, but I think that ruling is at least 20 years or more down the road. We would be better off working with the legislature to change the laws than depend on the courts to rule our way.

srothstein wrote:

PATHFINDER wrote:Since the McDonald decision incorporating the 2A into midst of the whole of Texas handgun law - common law, statutory law, and case law - the provision of Section 46.02 "criminalizing" unlicensed carry of a handgun without regard to concealment is null and void.

I agree with the sentiment but strongly disagree with the legal interpretation. There are some important considerations to remember about this. One is how the SCOTUS rulings work and the other is exactly what the MacDonald and Heller decisions said.

First, you must remember that SCOTUS cannot truly overturn a law, only the legislature can. The law is still on the books and can be enforced by a peace officer. This is especially true if the law in the court case was not the exact law in the case. As proof of how this works, check the penal code for its sections on sodomy. They are still there, years after the Lawrence decision said it was an unconstitutional violation of people's rights. If an officer decided to arrest for it, he could. The case would probably not be prosecuted, and would almost definitely be overturned if a conviction made it to an appellate level, but the law is there. All the officer has to do is claim the court made the wrong decision or the specific facts of this case are different from the case where the court made the ruling. Proof of this is all the repeat cases that go up and where prior rulings get overturned (like Lawrence overturning a Georgia case whose name I cannot remember).

Second, and even more important for this discussion, is that the court has never ruled yet that a restriction on carrying a weapon is unconstitutional. Heller and MacDonald were specifically about the ability to own a gun and keep it in the house. They were brought forth on very narrow grounds and ruled on very narrow grounds. I think this was done for good tactical reasons, such as winning the case with the least trouble first. Now will come a whole series of cases over the next decade or two, that will determine the full extent of the 2nd Amendment. This can be seen in the two Lubbock cases, which I find interesting and look for good rulings on. In the one case, they are not even questioning if requiring a CHL is valid or not, just if banning a CHL for an adult because of his age (under 21) is valid. The second is to determine if it is legal to ban the same person from buying a handgun from a licensed dealer (especially when he can buy it from another person who is not a dealer or can buy a rifle from a dealer).

In this case, I think Texas beat the unconstitutional method of banning carrying when they passed the CHL laws. This is based on the Texas Constitution where it says the legislature can regulate the wearing of firearms with an eye to curtail crime. Prior to 1995, there was a total ban on carrying in most cases, which i snot, IMO, regulating. But requiring a CHL is clearly a method of regulating and meets the Texas Constitutional requirements. It may turn out to be a violation of the 2A, but I think that ruling is at least 20 years or more down the road. We would be better off working with the legislature to change the laws than depend on the courts to rule our way.

It is clear that Heller and McDonald don't specifically invalidate TXPC 46.02...yet. But re: Lawrence, wouldn't a Texas Peace Officer risk a federal civil rights prosecution or lawsuit for arresting someone for violating the specific Texas statute held unconstitutional by SCOTUS in Lawrence?

Beiruty wrote:Good thing, In Islam, Muslims are recommended to carry. Carrying is symbol of maturity, nobleness, courageousness. Since historically, you would never able to conceal a 4' sword, and only have a small dagger in your waistband. Both methods of carry are permissible.

That's very interesting...I did not know that. Are there any countries under Sharia Law that permit one to carry?

The narrow, and case specific impact that the Heller, and McDonald decisions had in regards to the parties , and the specific firearms laws cited in the D.C., and Chicago cases are not directly relevant under Texas law. The specific grievances, and remedies provided in the Heller and McDonald decisions were necessarily focused narrowly to address the specific issues before the Court in each case. The consequences of those two decisions upon the law of the land will be far- reaching, once equilibrium is realized. The facts, precedents, and reasoning from which the Heller and McDonald decisions were derived now constitutes an intregal part of settled law in the U.S. The facts in the cases, the precedents cited, and the principles affirmed in the majority opinions were all relied upon in support of the arguments presented by Heller and McDonald .

Under the 14th Amendment application (incorporation) of the guarantee established by "We The People" under the provision of the 2nd Amendment - the NOW AFIRMED individual CIVIL RIGHT to carry a handgun in case of confrontation IN TEXAS is subject only to restriction in designated sensitive locations, subject to prohibition regarding concealed carry, and subject to disablement for cause due to criminal history or mental illness. This is the law of the land NOW - in every jurisdiction of the U.S. The SCOTUS does not have to render a complimentary, follow-up decision as a courtesy to every state-including Texas.

Under the precedent established by the SCOTUS in Murdock v The Commonwealth of PA, a state may not impose a fee, or any other requirement in order to be licensed as a prerequisite for public accomodation of the excercise of any civil right. Licensed concealed handgun carry in Texas is therefore not the exercise of any civil right at the present time.

That the RIGHT to carry a handgun is not unlimited, and is not a right to carry ANY WEAPON whatsoever, in ANY MANNER whatsoever, for whatever PURPOSE - fails to negate the unconstitutionality of the presumption embodied in Section 46.02 (a) that the otherwise peaceful excercise of a civil right in and of itself constitutes a "crime" in the absence of any other qualifying provision. This also holds true with the apparent presumption of "criminal conduct" associated with intentional failure to conceal - 46.035 (a) by a Texas concealed handgun licensee.

It's one thing to expect a long process for hair-splitting over the consequences of a SCOTUS decision like Roe v Wade, given the absence of any still yet to be ratified "Eleventh Amendment" guaranteeing a woman's right to undergo an abortion. In this case however, simply applying the law of the land as affirmed in Heller and McDonald - that the 2nd Amendment pretty well means what it says - there is no honest justification for protracted musing , and foot-dragging.

NO additional affirmative action is required of the State of Texas to "legalize" open carry - it is already legal.
All that IS REQUIRED is that the State of Texas RECOGNIZE, and REFLECT a RESPECT for that fact in State law. That may take a little longer.

ScottDLS wrote:It is clear that Heller and McDonald don't specifically invalidate TXPC 46.02...yet. But re: Lawrence, wouldn't a Texas Peace Officer risk a federal civil rights prosecution or lawsuit for arresting someone for violating the specific Texas statute held unconstitutional by SCOTUS in Lawrence?

Not wanting to go too far off topic, I am not sure. I think so because it is considered settled law. Since I am aware (and provably so), I definitely would be, but it is not one of the areas I would expect the average officer to know. I have never seen a police academy teach which laws are overturned. They teach the Penal Code, and for Constitutional law they teach the big 4th Amendment cases, and maybe some sixth amendment lately (the right to an attorney is also covered there and has been making some news in police circles lately). The agency would definitely face a good civil case for failure to train if it did happen.

srothstein wrote:

ScottDLS wrote:It is clear that Heller and McDonald don't specifically invalidate TXPC 46.02...yet. But re: Lawrence, wouldn't a Texas Peace Officer risk a federal civil rights prosecution or lawsuit for arresting someone for violating the specific Texas statute held unconstitutional by SCOTUS in Lawrence?

Not wanting to go too far off topic, I am not sure. I think so because it is considered settled law. Since I am aware (and provably so), I definitely would be, but it is not one of the areas I would expect the average officer to know. I have never seen a police academy teach which laws are overturned. They teach the Penal Code, and for Constitutional law they teach the big 4th Amendment cases, and maybe some sixth amendment lately (the right to an attorney is also covered there and has been making some news in police circles lately). The agency would definitely face a good civil case for failure to train if it did happen.

Kind of my thought too. To bring it back on topic my concern is similar to yours in that Heller and McDonald, while quite important, really did not specifically address laws such as Texas' which allow possession and carry of handguns, but regulate them in some way. Given that the holding of the majority in Heller was that the the right (to keep and bear arms) is not absolute, I tend to agree with PATHFINDER above that we have a long way to go in the lower courts. However I am not as confident as he is that things will go our way quickly.

I'm also still scratching my head looking for the sodomy clause and the privacy (aka abortion) amendment in the Constitution.

Reasonable people can disagree on these issues, but at least the 2nd amendment is there in black and white.

-Scott

PATHFINDER wrote:The narrow, and case specific impact that the Heller, and McDonald decisions had in regards to the parties , and the specific firearms laws cited in the D.C., and Chicago cases are not directly relevant under Texas law. The specific grievances, and remedies provided in the Heller and McDonald decisions were necessarily focused narrowly to address the specific issues before the Court in each case. The consequences of those two decisions upon the law of the land will be far- reaching, once equilibrium is realized. The facts, precedents, and reasoning from which the Heller and McDonald decisions were derived now constitutes an intregal part of settled law in the U.S. The facts in the cases, the precedents cited, and the principles affirmed in the majority opinions were all relied upon in support of the arguments presented by Heller and McDonald .

Under the 14th Amendment application (incorporation) of the guarantee established by "We The People" under the provision of the 2nd Amendment - the NOW AFIRMED individual CIVIL RIGHT to carry a handgun in case of confrontation IN TEXAS is subject only to restriction in designated sensitive locations, subject to prohibition regarding concealed carry, and subject to disablement for cause due to criminal history or mental illness. This is the law of the land NOW - in every jurisdiction of the U.S. The SCOTUS does not have to render a complimentary, follow-up decision as a courtesy to every state-including Texas.

Under the precedent established by the SCOTUS in Murdock v The Commonwealth of PA, a state may not impose a fee, or any other requirement in order to be licensed as a prerequisite for public accomodation of the excercise of any civil right. Licensed concealed handgun carry in Texas is therefore not the exercise of any civil right at the present time.

That the RIGHT to carry a handgun is not unlimited, and is not a right to carry ANY WEAPON whatsoever, in ANY MANNER whatsoever, for whatever PURPOSE - fails to negate the unconstitutionality of the presumption embodied in Section 46.02 (a) that the otherwise peaceful excercise of a civil right in and of itself constitutes a "crime" in the absence of any other qualifying provision. This also holds true with the apparent presumption of "criminal conduct" associated with intentional failure to conceal - 46.035 (a) by a Texas concealed handgun licensee.

It's one thing to expect a long process for hair-splitting over the consequences of a SCOTUS decision like Roe v Wade, given the absence of any still yet to be ratified "Eleventh Amendment" guaranteeing a woman's right to undergo an abortion. In this case however, simply applying the law of the land as affirmed in Heller and McDonald - that the 2nd Amendment pretty well means what it says - there is no honest justification for protracted musing , and foot-dragging.

NO additional affirmative action is required of the State of Texas to "legalize" open carry - it is already legal.
All that IS REQUIRED is that the State of Texas RECOGNIZE, and REFLECT a RESPECT for that fact in State law. That may take a little longer.

When will you be writing your Amicus brief? Seriously.

The thing is, the anti's rant about the "militia" part of the 2A but I don't think any of them have looked up how the U.S. defines a "miltia"
TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 § 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

it amazes me, even though the 2A says the right of the PEOPLE and not the right of the militia, but I digress.

Edit: Sorry ladies, you don't have the right to keep and bear arms like the fellas, well like the young fellas anyway unless you join the National Guard

Edit edit: on "Pen and Tellers: Bullpoopie (censored for 11yo rule)" They talk about the 2A and the RKBA in one of their episodes, it is an AWESOME watch you can find it on youtube