TexasCHLforum.com

Charles L. Cotton wrote: Although you and I don't agree on the impact open-carry would likely have in Texas, I do appreciate your reasoned approach to the subject. Until today, I hadn't read OpenCarry.com in months and I see nothing has changed.

If cases following Heller hold that the Constitution protects a right to carry a self-defense handgun (I believe it does), then I think the question is not whether either open-carry and/or concealed-carry are protected. I think the question the Court will address is whether licensing is required. I don't think the Court is going to say that one method (open-carry) of carrying a handgun is protected while another (concealed-carry) method is not. I know the language in Heller that is cited for this proposition, but people are reading far too much into this dicta.

And don't read too much into this statement, but I think Heller's recognition of a pre-constitutional right of self-defense, coupled with McDonald's applying this right to the states, is the foundation on which a well-written open-carry bill can be based. I think it provides the perfect context to do so, but not until a future case deals with "bearing" (i.e. carrying) a handgun, not "keeping" a handgun as was the issue in Heller. Regardless when the time is right, a successful open-carry campaign must be preceded with an educational effort to prepare the public so that we don't see the same knee-jerk reaction we say from 1995 to Sept. 1, 1997.

Chas.

If you read the threads concerning you/TexasCHLForum.com/TSRA you know that I'm still encourgaging people to join and contribute their voices to the discussion. I appreciate the fact that you appear to be thinking and planning for the eventual coming of OC in Texas. I want to renew my offer to work with you and assist in any way that I can.

I agree with you that licensing will definitely be addressed at some point. I suspect it will be addressed multiple times and in reverse order of the difficulty of getting a license. For example, NY, CA, HI, MD "may issue" licensing will probably be challenged first because many of these jurisdictions, as a practical matter, do not issue at all. They will probably not pass muster.

More importantly, which other BoR provisions are subject to licensing and to vastly different licensing depending on where you are in the country? If the Court were to allow licensing -- with different requirements -- to exercise the basic right of gun carry, whether openly or concealed, the only similar thing that I can think of was the standard for pornography (where community-based standards rather than a one-size-fits-all approach was taken). Even in this context, that "community standards" approach seems to have been discarded either formally or informally and we now seem to have a defacto national standard for whether something is obscene or not. I certainly hope that the Court takes more of a traditional 1A (religion, press, association) approach and announces a nationwide standard -- this is absolutely protected, from here on states and localities can regulate.

The dicta in Heller isn't the only thing that makes folks think that there may be a CC/OC difference. The fact that so many states simply don't regulate OC (or cannot based on the state constitution) yet nearly all of them regulate CC might be a factor. Nullifying OC restrictions based on the 2A would affect many fewer existing laws than striking down all CC regulatory schemes. Please don't misunderstand: I've love for both CC and OC to constitutionally protected and immune from infringement. I'm simply saying that I can see very credible arguments that might make the court draw a line between the two.

SA-TX

Thankfully, none of my posts were quoted disapprovingly on the last page. Risking that now, I'd like to renew a question: what is the core of the right protected by the 2A that is beyond government regulation? The whole point of a Bill of Rights was to take certain pre-existing things and shield them from government interference/regulation/infringement. The case law has already been developed for many amendments and will be for the 2A over the next many years. Given that the McDonald decision said that the Court declines to have one set of rules for the 2A and another for the other parts of the Bill of Rights, I think we can look to the 1A, 4A, 5A, 6A decisions for some guidance.

There are many reasons to say that the current CHL-only situation is Texas is good enough. They are logical and practical. Some of them are based on tactical considerations and others on fitness concerns. IMHO, ultimately the key question is whether or not Texas has the authority to outlaw the OC of a handgun. Until McDonald, I could argue that it wasn't necessary or that it wasn't the best option or that a different policy choice would better serve the people, but I could NOT accurately question that the Legislature lacked the constitutional authority to do it. Now I can. If the 2A, distilled down to its purest essence, protects that type of "bearing" of arms, then Texas simply cannot have such a policy no matter the justification.

To see why this is so, let's look at cases from other amendments: Neo-Nazis were banned from parading in Skokie, IL. Sexual oriented bookstores/theatres were banned. Nude dancing/strip clubs were banned. The burning of draft cards and the American flag was banned. Wearing black armbands in protest of the Vietnam War, abortion, interracial marriage, contraception, equal access to public accommodations, homosexual sodomy, the publication of something (prior restraint) were all banned at one time or another and the list could go on and on. The point is that outright bans on activity at the core of a constitutional right tend to fail. Heck, some would say -- and I would agree -- that some of the items in the above list aren't even activities mentioned in the Constitution or at the core of a constitutional right yet they have been given protection but the USSC has said otherwise.

So, what "bearing arms" activity is at the core of the 2A for YOU and why?

SA-TX

03Lightningrocks wrote:My one and only concern with open carry would be the possible restriction of my right to carry concealed so that guys who are not willing to go through the necessary steps or don't have to spend a few bucks. Why would I want to risk my right to carry for a person too darned lazy to do it the way the rest of us do. If the only reason is to protect me from possible prosecution in cases of failure to conceal... I say... learn to conceal better.

I am trying hard to picture a world in which I get to continue to ignore a gun busters sign while open carry guys must disarm. Somehow that picture involves open carry proponents causing me to have to honor the sign because they do and being willing to cause me this loss simply because they are too darned cheap or lazy to just play ball by the rules we already have.

My first and second paragraphs are related, for the folks who like to pick apart posts, in that I am worried signs that presently don't apply to me by law, will apply to me once open carry is approved and the average citizen is having to see guns being carried about in an open manner.

We now know via the McDonald decision that the 2nd Amendment applies to the states. Obviously only the "keep" part of the right has been litigated so far. That will change and the "bear" part will be explored. 03Light, what do YOU think the 2A protects? That is, what is the core portion that the government cannot regulate? I would suggest that there is no more simple "bear arms" scenario than open carry.

As a CHLer I don't want to see more 30.06 signs either. I do not underestimate or downplay this concern! Charles has said more than once that his personal opinion is pro-OC but that more 30.06 signs is the blocking issue and that seems to be the case for many here. Where we part company is that my view of the 2A overrules practical concerns. Similarly suspicions about peoples motives, commitment, or investment also must fail. It is our RIGHT. There are inconveniences that freedom causes but that's the nature of liberty. The McDonald opinion notes that many of the amendments in the Bill of Rights have societal costs (such as evidence that is suppressed because of police misconduct) and the 2A is no different.

SA-TX

stevie_d_64 wrote:The amazing thing is that this discussion has gone on for 5 pages...Which tells me people are still scratching their heaqds and wondering why this issue has not been resolved (in our favor)...

Regardless of the very knowledgable and technical pros and cons of this issue, I have been one that would still like to see it resolved and Texans having the choice to exercise their right without scrutiny or critisism...

What started out last time with a good effort was torpedoed by proponents that were impatient and immature in my opinion, and that pretty much killed the effort, and it is unlikely to be carried again anytime soon...

So what do we do now???

Carry concealed!!!

I'm good with that...

How do we get beyond the past? Unquestionably the approach taken didn't work. Can't we learn from that and move forward in a positive way? Are we really taking the view that because mistakes were made last session that should be the end of it? Texans have lacked this particular type of freedom for over 120 years. Heck, we lacked most legal handgun carry for over 110. I'm still amazed and astonished at this.

That having been said, I'm a practical guy. I definitely fall into the camp that thinks baby steps in the right direction are valuable. Is there ANY change to current law that even moves us toward OC that the readership here would support in large numbers?

Removing firearms from being mentioned in the Disorderly Conduct statute, for example (SRothstein explained in another post how even openly carrying on your own property, because it could be a 'public place' though privately owned, might give rise to the charge & the prosecution would try to show that your actions were 'calculated to alarm' the public)?

OC on private property with permission?

I ask the question with complete sincerity: is there ANYTHING that this important group of active gun carriers can agree on that move the ball forward even a little? To continue with the football analogy, we are looking for first downs at this point, not touchdowns.

SA-TX