Open-Carry: Pro/Con - Split from "Still No Open Carry Bill

[jimlongley]

If an open-carry bills gets introduced and passed, you can be certain of two things: 1) the Legislature isn't going to leave property owners without a way to keep armed citizens off their property; and 2) the Legislature isn't going to create a dual standard for "no trespass" signs, thus forcing property owners to post two signs instead of one, if they want to bar all armed citizens. So this means either TPC §30.06 will be amended to apply to open and concealed carry, or TPC §30.06 will be repealed and we return to the pre-1997 "ghost buster" signs and decals. I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas.

And these and other issues are why "Vermont Style" carry should be our ultimate goal.

[CHLSteve]

I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas, can I infer from your post that you believe it would then follow that we will see a huge increase the number of 30.06 postings?

I fear that they might even adopt a "Look how safe we are, we are 30.06 posted" stance. No guns = safety in the minds of many people. It could even become the thing to have, business would PROMOTE themselves as being 30.06 posted as a way to gain customers! If it became a public trend, where people wanted to shop in "gun free zones", I would expect many new companies to be posting.

Worst case scenario, I see gun owners being ousted and encroached upon like smokers are now. Did you know that at Boeing, not only can you not smoke outside the building, you cannot even have tobacco products in your car! How's that for intrusive? If guns become the next "bad thing" like cigarettes are now, you can expect this will happen too.

[Charles L. Cotton]

I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas, can I infer from your post that you believe it would then follow that we will see a huge increase the number of 30.06 postings?

Yes, this is my only opposition to open-carry. I have posted my concerns along these lines since this subject was first broached long before the 2009 legislative session approached. I know the majority of people do not believe this will happen and they may be correct. But it happened 1995 and history does have a way of repeating itself. As the old saying goes, "those who refuse to learn from history are doomed to repeat it." (Now I've gone and done it! Just kidding open-carry supporters.)

Chas.

[Morgan]

What are the states that have both open carry and concealed carry? Has this been a problem in those places? I know that Texas is different, but I'd be interested to know.

[Douva]

If an open-carry bills gets introduced and passed, you can be certain of two things: 1) the Legislature isn't going to leave property owners without a way to keep armed citizens off their property; and 2) the Legislature isn't going to create a dual standard for "no trespass" signs, thus forcing property owners to post two signs instead of one, if they want to bar all armed citizens. So this means either TPC §30.06 will be amended to apply to open and concealed carry, or TPC §30.06 will be repealed and we return to the pre-1997 "ghost buster" signs and decals. I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas.

I'm not a lawyer, but couldn't the problem be fixed by the addition of language such as this to TX PC §46.03?

§46.03(a)(7) on any property owned by another who has not granted effective consent for the actor to enter carrying the firearm; if

• • (A) the actor received notice that:
    
    • (1) entry on the property by a person with a handgun was forbidden; or
      
      (2) remaining on the property with a handgun was forbidden and failed to depart.

§46.03(c)(3) "Entry" has the meaning assigned by Section 30.05(b).

§46.03(c)(4) "Notice" means:

• • (A) oral or written communication by the owner or someone with apparent authority to act for the owner;
    
    (B) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry with a handgun is forbidden;
    
    (C) notice under Section 30.06.

§46.03(j) It is an exception to the application of Subsection (a)(7) that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; and

• (1) the actor did not intentionally fail to conceal the handgun; and
  
  (2) the actor was not given effective notice under Section 30.06.

§46.03(k) A person who is subject to prosecution under both this section and Section 30.06 may only be prosecuted under Section 30.06.

§46.03(l) It is not a defense to prosecution under Subsection (a)(7) that an actor who received notice under Section 30.06:

• (1) was not licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
  
  (2) carried a handgun but made no attempt to conceal it.

[Charles L. Cotton]

What are the states that have both open carry and concealed carry? Has this been a problem in those places? I know that Texas is different, but I'd be interested to know.

According to OpenCarry.org, there are 44 states in which open-carry is not illegal. (I say "not illegal" rather than "allowed" because what is legal and what you can realistically do without harassment are two different concepts.) They also have sub-forums for various states, so you may be able to get some information there. For these 44 states, I think an overall accurate but very general statement is that open-carry is not common in urban areas, but that it is legal. Open-carry in rural areas is more common, though still not the order-of-the-day. You are more likely to draw the attention of law enforcement in urban areas than in rural areas. This attention can be anything from a minor interview to events that lead to revocation of your carry license, TV news coverage, reinstatement of your license, and eventually a law suit against a sheriff. (This was the soccer game incident.)

As for Texas, I point to what we experienced from 1995 to the late 1990s as a reasonable predictor of what I believe we would see. It's not guaranteed, I may be wrong, but that is my concern. If I am correct, then I think there is no realistic chance that the general public would "get used to it" as open-carry supports believe. We are far too out-numbered to think we are going to "teach" anyone anything. The furor over concealed carry by citizens in Texas died down because 1) the media-predicted blood bath didn't occur so they (media) moved on to other topics; and 2) people don't see the guns we are carrying, so they have simply forgotten about it.

We have to remember that it was only 14 years ago that we got the CHL statute passed, reversing a ban on citizen carry (with exceptions) that had lasted for over 120 years. It's been only a year and a half since we passed the Motorist Protection Act that allows unlicensed carry in our cars. This fact pattern is markedly different from a state that has never prohibited open-carry. I think open-carry supporters who rely upon the experience of other states are underestimating these historical differences.

Chas.

[CHLSteve]

In other words, pigs get fed, hogs get slaughtered.

[Charles L. Cotton]

If an open-carry bills gets introduced and passed, you can be certain of two things: 1) the Legislature isn't going to leave property owners without a way to keep armed citizens off their property; and 2) the Legislature isn't going to create a dual standard for "no trespass" signs, thus forcing property owners to post two signs instead of one, if they want to bar all armed citizens. So this means either TPC §30.06 will be amended to apply to open and concealed carry, or TPC §30.06 will be repealed and we return to the pre-1997 "ghost buster" signs and decals. I don't really think §30.06 would be repealed; I think it would be amended to apply to open and concealed carry.

Chas.

I'm not a lawyer, but couldn't the problem be fixed by the addition of language such as this to TX PC §46.03?

§46.03(a)(7) on any property owned by another who has not granted effective consent for the actor to enter carrying the firearm; if

• • (A) the actor received notice that:
    
    • (1) entry on the property by a person with a handgun was forbidden; or
      
      (2) remaining on the property with a handgun was forbidden and failed to depart.

§46.03(c)(3) "Entry" has the meaning assigned by Section 30.05(b).

§46.03(c)(4) "Notice" means:

• • (A) oral or written communication by the owner or someone with apparent authority to act for the owner;
    
    (B) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry with a handgun is forbidden;
    
    (C) notice under Section 30.06.

§46.03(j) It is an exception to the application of Subsection (a)(7) that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; and

• (1) the actor did not intentionally fail to conceal the handgun; and
  
  (2) the actor was not given effective notice under Section 30.06.

§46.03(k) A person who is subject to prosecution under both this section and Section 30.06 may only be prosecuted under Section 30.06.

§46.03(l) It is not a defense to prosecution under Subsection (a)(7) that an actor who received notice under Section 30.06:

• (1) was not licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
  
  (2) carried a handgun but made no attempt to conceal it.

Your suggestion would provide a method for property owners to select between two types of signs to either 1) bar only open-carry; or 2) bar open and concealed carry with a single sign. But the problem isn’t with drafting something that would work, but in getting it passed without doing damage to safeguards we already have and without winding up with only a 30.06 sign.

From a purely technical approach, incorporating a criminal trespass provision into Chp. 46 dealing with weapons is something the Legislature isn't going to do. The proposal also puts "conditional" off-limits areas into a part of the Code that lists only locations that are always off-limits. (The DAs would oppose this mixing of apples and oranges and in this argument, their opinions would carry a lot of weight.) That said, TPC §30.05 could be amended to do precisely what your proposal accomplishes.

Unfortunately, the Legislature would most likely take the easy way out and simply amend TPC §30.06 to be a "one size fits all" notice requirement for anyone with a gun. It will be argued that the proposal is confusing to property owners and they should have a single, simple and easy way to post one sign and keep all people off of their property if they have guns. To most legislators and the majority of the non-CHL, non-OC folks, this argument will make a lot of sense.

There is also a very real danger that we could lose the protections of TPC §30.06, if we try to adopt a statue that allows the use of any sign that doesn’t meet the size and language requirements of TPC §30.06. We have to remember that we were able to pass HB2909 in 1997 establishing TPC §30.06 (and it's onerous signage requirement ) based upon the argument that it was unfair to prosecute a CHL for trespass when it is so easy to miss the little "ghostbuster" decals found on several businesses. They were especially difficult to see when placed in the lower corners of glass doors, as was often the case. If we were to now promote a scheme by which an open-carrier could be prosecuted for crossing something less than a large 30.06 sign, then it would be both unfair to the open-carrier and it would be evidence that the large signs required by TPC §30.06 must not really be necessary. There would be no good response to that argument. None of us want to return to the pre-1997 days when excluding CHLs was absurdly easy.

The small sign problem could be addressed by requiring a sign that met TPC §30.06 dimensions but different language for open-carriers, but then we’re back to two-sign requirement for property owners waning to exclude all armed citizens. Unfortunately, the most likely result of open-carry, as it deals with criminal trespass, would be an amendment to TPC 30.06 such that it applies to both open and concealed carry.

Chas.

[Douva]

Your suggestion would provide a method for property owners to select between two types of signs to either 1) bar only open-carry; or 2) bar open and concealed carry with a single sign. But the problem isn’t with drafting something that would work, but in getting it passed without doing damage to safeguards we already have and without winding up with only a 30.06 sign.

From a purely technical approach, incorporating a criminal trespass provision into Chp. 46 dealing with weapons is something the Legislature isn't going to do. The proposal also puts "conditional" off-limits areas into a part of the Code that lists only locations that are always off-limits. (The DAs would oppose this mixing of apples and oranges and in this argument, their opinions would carry a lot of weight.) That said, TPC §30.05 could be amended to do precisely what your proposal accomplishes.

Unfortunately, the Legislature would most likely take the easy way out and simply amend TPC §30.06 to be a "one size fits all" notice requirement for anyone with a gun. It will be argued that the proposal is confusing to property owners and they should have a single, simple and easy way to post one sign and keep all people off of their property if they have guns. To most legislators and the majority of the non-CHL, non-OC folks, this argument will make a lot of sense.

There is also a very real danger that we could lose the protections of TPC §30.06, if we try to adopt a statue that allows the use of any sign that doesn’t meet the size and language requirements of TPC §30.06. We have to remember that we were able to pass HB2909 in 1997 establishing TPC §30.06 (and it's onerous signage requirement ) based upon the argument that it was unfair to prosecute a CHL for trespass when it is so easy to miss the little "ghostbuster" decals found on several businesses. They were especially difficult to see when placed in the lower corners of glass doors, as was often the case. If we were to now promote a scheme by which an open-carrier could be prosecuted for crossing something less than a large 30.06 sign, then it would be both unfair to the open-carrier and it would be evidence that the large signs required by TPC §30.06 must not really be necessary. There would be no good response to that argument. None of us want to return to the pre-1997 days when excluding CHLs was absurdly easy.

The small sign problem could be addressed by requiring a sign that met TPC §30.06 dimensions but different language for open-carriers, but then we’re back to two-sign requirement for property owners waning to exclude all armed citizens. Unfortunately, the most likely result of open-carry, as it deals with criminal trespass, would be an amendment to TPC 30.06 such that it applies to both open and concealed carry.

Chas.

I see your point.

[Bart]

What kind of sign does a business have to post today to ban people who can OC legally today? Like if a restaurant doesn't want security guards from another business to wear guns if they eat there during lunch break.

[Charles L. Cotton]

What kind of sign does a business have to post today to ban people who can OC legally today? Like if a restaurant doesn't want security guards from another business to wear guns if they eat there during lunch break.

Anything that gets the "no guns" message across.

Chas.

[Douva]

What kind of sign does a business have to post today to ban people who can OC legally today? Like if a restaurant doesn't want security guards from another business to wear guns if they eat there during lunch break.

Anything that gets the "no guns" message across.

Chas.

As I understand it, a security guard can only open carry if he or she is in uniform AND "engaged in the performance of the person's duties as a security officer or traveling to and from the person's place of assignment." Being a security guard doesn't give you carte blanche to open carry.

[Morgan]

Charles, I really want to say how much I appreciate the way you explain things.

Question in regard to your last statement... So a red ghostbuster sign would stop the aforementioned security guard... would it also stop an on-duty but on meal break LEO? Merely curious.

[jimlongley]

Charles, I really want to say how much I appreciate the way you explain things.

Question in regard to your last statement... So a red ghostbuster sign would stop the aforementioned security guard... would it also stop an on-duty but on meal break LEO? Merely curious.

I doubt it, but that presents an interesting conundrum: If the "gunbusters" sign prevents carry by a LEO, and we know that it has no legal effect on CHL, does this then mean that a CHL could legally carry where a LEO couldn't?

[DONT TREAD ON ME]

AEA...you said it so perfect and made it so simple. I agree with that logic totally. Just wish everyone else did too.