Rethinking 30.06

[Scott Farkus]

It really just boils down to wether or not you believe you have a right to be on someone else's property or not. I don't believe you have that right. Therefore, my right to carry isn't impeded at all unless I choose it to be.

Now, if you want to get into where your right is violated we can discuss places you are required to go that you are prohibited but that is another thread.

Just to make clear, we are talking about private property that has been opened to the public for some reason - typically for commerce. The rules are already different there. Nobody is suggesting anybody should be able to carry into another person's home or private non-commercial property against that person's wishes.

[fishingsetx]

Tex. Penal Code §30.06 was not part of the original CHL bill (SB60 in 1995). It was added by HB2909 in 1997.

Prior to the creation of TPC §30.06 in 1997, TPC §30.05 applied to everyone including CHLs and any generic "no guns" sign or small decals were enforceable. That's precisely why §30.06 was created. We didn't go out of our way to make it easier to exclude armed CHLs, we made it much harder. The goal was to make very sure that a CHL didn't inadvertently enter a store and face a Class A misdemeanor charge because they missed a small decal.

As for other groups, I can prohibit anyone other than a CHL from entering my property by using small §30.05 sign or decal, so long as I'm not trying to exclude them because they are in a protected class.

Many people who were not here in 1995 - 1997 are not fully aware why and how TPC §30.06 is so critically important to CHLs. That's why I always tell the history of §30.06 in all of my CHL classes.


Chas.

Thank you, that is very helpful. I see where you're coming from.

Let me ask this for clarification. Say I didn't want people with tattoos in my store. I post a "No Tattoos" sign on the door. Somebody in a long sleeve shirt comes in and as he's reaching for a can of tuna, his sleeve rises up to reveal a tattoo. What are the legal implications? I can theoretically call the police and have that person arrested for trespassing, and potentially subject to the same penalties as crossing a 30.06 sign?

I guess I'm trying to confirm that 30.06 deals with trespassing, not necessarily carry. Which means if we were to try to attack this legislatively, we'd have to approach it more from that angle and that's why you get the resistance you do?

If my understanding then is correct, I'd have to say that the trespassing laws themselves seem particularly harsh, not just for CHL but for everything. It seems more reasonable to me to first require a verbal request to leave with a kind of "no harm, no foul" out, then impose the penalties if the person refuses.

Anyway, very interesting discussion and I'm learning a lot. Thank you for allowing it.

Any time you trespass with a firearm, it is punishable by a class A misdemeanor not just chl/30.06. The charge can be the same if you are caught trespassing anywhere for any reason with a firearm. I think that is what is lost in a lot of these discussions.

To play devils advocate, should the penalty be lessened for tresspassig with a fire arm just because you are a CHL holder?


For the record, I choose not to shop where I cannot carry if it can be avoided.

[kg5ie]

Excellent discussion. Great points made by all.

This is what I like about this forum. Civil discussions, opposing opinions, no yelling or name calling...respect for the others opinion. Reminds me of the saying; "I don't agree with your opinion but I'll die defending your right to have it".

Thanks for keeping this forum a resource for information and discussion without it being a battleground!

[Scott Farkus]

Any time you trespass with a firearm, it is punishable by a class A misdemeanor not just chl/30.06. The charge can be the same if you are caught trespassing anywhere for any reason with a firearm. I think that is what is lost in a lot of these discussions.

Got it. So crossing a "no tattoo" sign with a tattoo might carry some penalty, but not as severe as it would be if a firearm was involved. In a way that makes sense, except when it doesn't (see below).

To play devils advocate, should the penalty be lessened for tresspassig with a fire arm just because you are a CHL holder?

Yes, absolutely at minimum. If the state grants you a license to carry, and especially if you are carrying concealed, yes, absolutely the penalties should be lessened. The point of my post was to ponder why we even allow business owners the option of excluding licensed CHL holders in the first place, in light of all the other impositions we now place on businesses.

For the record, I choose not to shop where I cannot carry if it can be avoided.

As do I, and that's certainly fair. But again, the gay couple can choose to shop at a bakery that does not have an opposition to gay marriage. The environmentalist can choose to shop at a business that doesn't provide plastic bags. They don't. They find ways to force businesses to bend to their demands through force of law. I contend that that's not fair, but if that's the way it's going to be, then maybe we gun owners need to rethink our strategies.

[Glockster]

Again, my focus is upon the fact that one is a constitutional right and I believe it is beyond unfair to suspend my rights on property wherein the public has been invited. But if we're playing devil's advocate, let's play that.

For example, banks are something that in this day and age you simply have to have. But if I need to go into one, to open an account, I may be faced with one, or all of them prohibiting my firearm. This is where I think that we get into public policy kind of stuff, as it is widely recognized that you need a bank account in a modern society. And nearly 100% of the time you are going to have to go inside and present your ID and sign the forms. So why then should any bank then be allowed to prohibit carry, especially given that bank robbery happens and clearly I am on my own in protecting myself. Why must I be compelled to forgo my constitutional right simply because for some vague reason someone has decided that my gun should not be there? Given the standing of property rights and from where that flows, what evidence is there that my exercising my constitutional right negatively impacts the bank as a property owner?

And the same argument for example, applies to a hospital emergency room if you are forced to turnover your weapon as part of being brought into the emergency room. Laws mandate treatment of all patients, and my urgent need of treatment likely wouldn't allow me to simply "shop elsewhere." So why would one of my constitutional rights be summarily suspended when a hospital is providing the service that they must provide?

And I believe that there are many more examples of this sort of thing. I simply do not like that at some point of time it was decided without my consent that one of my constitutional rights were to be suspended, simply because a property owner who has opened their doors in welcoming me, decided to have an irrational fear of my exercising of that constitutional right.

[Mel]

For example, banks are something that in this day and age you simply have to have. But if I need to go into one, to open an account, I may be faced with one, or all of them prohibiting my firearm. This is where I think that we get into public policy kind of stuff, as it is widely recognized that you need a bank account in a modern society. And nearly 100% of the time you are going to have to go inside and present your ID and sign the forms. So why then should any bank then be allowed to prohibit carry, especially given that bank robbery happens and clearly I am on my own in protecting myself. Why must I be compelled to forgo my constitutional right simply because for some vague reason someone has decided that my gun should not be there? Given the standing of property rights and from where that flows, what evidence is there that my exercising my constitutional right negatively impacts the bank as a property owner?

Just as an FYI, not all banks are alike. My bank and my wife's credit union both welcome carrying by CHLs.

[EEllis]

Again, my focus is upon the fact that one is a constitutional right and I believe it is beyond unfair to suspend my rights on property wherein the public has been invited.

But carrying concealed isn't a constitutional right. Then there is the fact that speech, which is a constitutional right, doesn't mean that business owners can't stop all speech in a business by use of trespass if they so feel. IMHO not a effective legal or moral argument.

[Winchster]

Just to make clear, we are talking about private property that has been opened to the public for some reason - typically for commerce. The rules are already different there. Nobody is suggesting anybody should be able to carry into another person's home or private non-commercial property against that person's wishes.

I'm aware of that. Doesn't change anything. We don't have a "right" to go to Walmart.

[C-dub]

Again, my focus is upon the fact that one is a constitutional right and I believe it is beyond unfair to suspend my rights on property wherein the public has been invited.

But carrying concealed isn't a constitutional right. Then there is the fact that speech, which is a constitutional right, doesn't mean that business owners can't stop all speech in a business by use of trespass if they so feel. IMHO not a effective legal or moral argument.

How can you say that free speech is a constitutional right, but a method of bearing arms is not? Yeah, yeah, we all know that there are limits to free speech such as the whole yelling fire in a crowded theater when there isn't actually a fire and liable and all that, but carrying a concealed handgun isn't even in the same ballpark as those restrictions upon free speech. The method of bearing arms has no restriction in the 2A. The action of concealing a firearm was once thought of as being sneaky or that only criminals would have a reason to conceal their firearm and honorable men wore their guns out for all to see. Or something to that effect. However, there still is no restriction on the method of bearing arms in the 2A. The choice of concealing a handgun, among other rights that should not have been infringed, were wrestled away from us by the government under the false premise of public safety. Just because the legislature or courts have taken away those rights does not mean that they weren't rights to begin with.

[C-dub]

I just thought of something that may throw a monkey wrench into the whole argument here.

Anyone remember hearing about instances where a business owner would tell one or more LEOs that they were not welcome in their business with their weapons? Some were in uniform and some were in plain clothes, but all had their badges. The police acknowledged the businesses had that right and they did have to obey their request.

[Winchster]

I just thought of something that may throw a monkey wrench into the whole argument here.

Anyone remember hearing about instances where a business owner would tell one or more LEOs that they were not welcome in their business with their weapons? Some were in uniform and some were in plain clothes, but all had their badges. The police acknowledged the businesses had that right and they did have to obey their request.

Precisely, we have no "right" to enter private property. Business reserves the right to refuse service.

[C-dub]

I just thought of something that may throw a monkey wrench into the whole argument here.

Anyone remember hearing about instances where a business owner would tell one or more LEOs that they were not welcome in their business with their weapons? Some were in uniform and some were in plain clothes, but all had their badges. The police acknowledged the businesses had that right and they did have to obey their request.

Precisely, we have no "right" to enter private property. Business reserves the right to refuse service.

Except for the things the government has said they can't. Such as because of race, religion, sex, and now even sexual preference. So, as many have pondered, why is there the difference?

[EEllis]

How can you say that free speech is a constitutional right, but a method of bearing arms is not?

Cus Scotus does

The method of bearing arms has no restriction in the 2A. The action of concealing a firearm was once thought of as being sneaky or that only criminals would have a reason to conceal their firearm and honorable men wore their guns out for all to see. Or something to that effect. However, there still is no restriction on the method of bearing arms in the 2A. The choice of concealing a handgun, among other rights that should not have been infringed, were wrestled away from us by the government under the false premise of public safety. Just because the legislature or courts have taken away those rights does not mean that they weren't rights to begin with.

Scotus disagrees. Your version of the second has never been legally held to be so nor have the majority of people thought it to be so. Which makes it a pretty bad legal argument.

[TexasCajun]

The difference between prohibitions in the Civil Rights Act and requirements in the ADA vs trespass by a person carrying a concealed handgun is that the CRA and ADA are concerned with providing access by segments of the public. TPC 30.06 and businesses posting as such are not prohibiting anyone from accessing their property. They are prohibiting an action. I as a concealed carrier and as a firearms owner can walk past a 30.06 sign without any problem as long as I don't engage in the activity that has been prohibited. The same scenario would apply to a mall that prohibits the handing out of flyers - they can bar LULAC, NAACP, JDL, etc from handing out flyers and would not be guilty of discrimination because it's the activity and not the people that are being categorically denied.

[C-dub]

The SCOTUS is not always right.