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Keith B wrote:

PATHFINDER wrote: In response to the OP - Yes, at least one bill that would repeal 46.035(a) will be introduced in 2013.

Can you provide some validation on this?

"Validation" ???

Texans are actively involved in preparing for the introduction of a bill to address Section 46.035(a) in some manner. Outright repeal would be warranted since that section of the Penal Code fails to define any offense against persons, appears to be a redundant echo of Section 42.01 (a,8) and actually serves to promote the practice of concealing deadly weapons which is the primary public safety concern expressed in Article 1, Section 23 of the Texas Constitution.

I'm sure that when the time is appropriate those Texans involved in this effort will get the word out. Stay tuned in.

The Denver case mentioned above was originally filed under Petersen v McCabe. It has been modified to Petersen v Martinez because the defendants seem want to keep trying to dodge the ball of responsibility. Details are "stickied" at the top of the Colorado forum at http://www.opencarryforum.org" onclick="window.open(this.href);return false;

Reading the filing by Petersen, it appears that the remedy sought is to expand the Heller/McDonald decisions to strengthen the right to bear arms under the privileges & immunities clause of the 14A -as Justice Clarence Thomas had recommended in his McDonald concurring opinion. . A ruling that the right to bear arms in case of confrontation extends well beyond the home - only to be restricted by locations such as schools,court houses, and such like is being sought.

The result regarding Denver's ban on unlicensed open carry would be that since the State of Colorado itself does not require a permit/license in order for a person to open carry, the Denver law requiring a license to carry at all - denies Petersen the otherwise lawful exercise of his right to bear arms in defense of his person under the existing Colorado law that makes him ineligible to obtain a CO CHP, or benefit from CO reciprocity.

I think a successful decision in this case at the SCOTUS level would further apply the spot light of (2A) scrutiny on Texas 46.02(a) which also requires a somewhat arbitrary licensing eligibility criteria- regarding child support, student loan, state tax delinquency- in order to "wear" a handgun "IN CASE OF CONFRONTATION" at all- not just concealed. We'll see.

In response to the OP - Yes, at least one bill that would repeal 46.035(a) will be introduced in 2013.

Keith B wrote: What about the fact that your state bans open carry in Denver?

I will gladly address the Denver question since you brought up the issue.

The State of Colorado does not ban open carry in Denver. Denver Metro/County has an ordinance restricting handgun carry to CONCEALMENT which in Colorado requires a Colorado concealed handgun permit.

This continues to be a bone of contention between Colorado State law, and Denver. This matter has not been resolved, and oral arguments were presented before the 10th Circuit in Denver this very afternoon challenging the Colorado "system" that allows Denver to essentially require that any out-of-state visitor must conceal a carried handgun which requires a resident CHL from the visitors state of residency- even though Colorado law does not restrict open carry.( Petersen v Martinez/modified).

The thrust of the remedy sought by Petersen seems to be a bit illusive to the court's grasp at this point , but it appears that Petersen is asking the 10th Circuit to step forward, and clarify that the 2A protected right to bear the "quintessential handgun" affirmed by the SCOTUS in Heller/McDonald actually extends outside of one's home. If the 10th Circuit relies upon the SCOTUS dicta in Heller/McDonald , and affirms the right to carry the "quintessential handgun" in case of confrontation outside of the home, then Denver by restricting the 2A right to only concealed carry with a permit/license is intruding into a domain preempted by the totality of Colorado law, and the 2A.

This should be an interesting case that may well end up being ultimately decided by the SCOTUS, and hopefully also have a positive impact on the Texas licensed concealment mandate. The 10th Circuit is pretty pro-2A, but it may want to hand this one off to the SCOTUS.

Hey - 74Novaman :

I personally like "Eskimos". They are a freedom loving people who are also being oppressed by their State government, and frankly - they really don't have a need for freezers.

So... be happy - OK ! Try not to be so sensitive - OK..

My goodness - gracious - if you don' t think that you have a need for a freezer - then by all means -don't buy one.

Hey Guys & gals - y'all keep on hiding those handguns under your golf shirts while folks in the rest of the states enjoy freedom. I am going to politely excuse myself from this "tizzy" before my head explodes .

Charles, you are abosolutely right , my good man. My arguments don't have a leg to stand on - in a Texas courtroom - YET.

Texans wouldn't still be having their ARTICLE 1, SECTION 23 declared right to bear arms suppressed by a transgressing State government if Texas judges had taken it upon themselves to exercise due diligence in the performance of their constituted duties during the last 136 years.

A point of factual information for the benefit of any who are convinced that rifles & shotguns are somehow excepted from this regulatory power provision of Article 1, Section 23 ...

"The wearing of arms" is a term applied in Article 1, Section 23 that pertains to the custom of habitually transporting a deadly weapon on one's person. That includes, by the way - inside of , or under clothing, hand-carried, or within reach of one's person. stowed inside of "carpet bags", and YES - even long-guns slung over the shoulder, or simply grasped in one hand -IF THE WEAPON WAS CARRIED HABITUALLY.

But I believe the question was.....why do I assert that " this wearing of arms" regulatory provision only applies to CONCEALMENT?

Well... the handgun prohibition was first enacted in 1871 -right ? The Texas Constitution was adopted in 1876 - right ?

Now - could a reasonable person come up with any logical explanation as to WHY...... the " wearing of " (REMEMBER- as in habitual carry) of rifles & shotguns hasn't been restricted post-1876 ? Could it possibly be due to the fact that rifles & shotguns are not readily CONCEALABLE ??? Remember pickup gun racks ? (back in the days when one's parked vehicle was considered a fairly "safe" place to stow things)

I don't know why I insist upon trying to sell air conditioners to " Eskimos"- I really don't.

Perhaps it's because I lived with them dang "Eskimos" for 45 years , and I still regularly "travel" within their "Republic", and it saddens me that they are so willing to exchange their constitutionally declared right for a grant of privilege from the high powers of State government.

_______-

P.S. - Why are all of those 30.06 signs appearing down there - given that nobody is open carrying ?

Although I am now a Colorado resident , I am also a direct descendant of an Alamo defender (William Linn), and I have held a Texas CHL for over 16 years.

I am a former Texas resident who now lives in Colorado where that State's constitution also reserves the right to bear arms- subject only to an exception for the practice of carrying concealed weapons.

In Texas Section 46.02(a) defines as a "crime" the very exercise of that State's own constitutionally declared right cited in Article 1, Section 23 of the State's constitution.

This is in spite of the fact that Article 1, Section 23 of the Texas Constitution declares that regulation of the right to keep & bear arms is OFF LIMITS to the high powers of the State government - except for the power granted to the legislature to regulate the "wearing of arms with a view to prevent crime" . No distinction is provided therein pertaining to specific categories of arms(rifles vs handguns) - only a provision for regulation by the legislature of the "wearing of arms".

Historically, and constitutionally the "wearing of arms" provision referred to in Article 1. Section 23 pertains to the practice of concealing deadly weapons - just as the Colorado Constitution excepts the carrying of concealed weapons from that State's recognition of the right to bear arms. The somewhat peculiar reference to the "wearing of arms" in the Texas Constitution equates to the concealment of arms addressed in most other state constitutions of that time. Wearing of arms is simply another way of addressing concealment of arms inside of , under, about or hidden among one's clothing or carry-alongs .

The movement to remedy this error in Texas only seeks the decriminalization of behavior that is protected by the State's constitution. Once this is accomplished folks can continue to make their own call as to conceal or not.

Two sections of the Texas Penal Code are inconsistent with Article 1, Section 23 of the Texas Constitution-
Section 46.02(a) which violates the Article 1, Section 23 provision empowering the legislature to regulate ONLY the CONCEALMENT of arms, and the Section 46.035(a) provision (intentional failure to conceal) which exceeds the limited legislative power to regulate concealment.

The fact that case law in Texas has yet to recognize these two constitutional inconsistencies - is a large part of the problem in Texas because the courts bear the burden of cleaning up the messes left after the Legislature adjourns.

Personal preferences regarding open or concealed carry notwithstanding - the former is a constitutional right in Texas - the latter is not.