Unlawful Carrying Weapons....Will Arrests increase in TX???

[fiftycal]

There is a corresponding state law to the "gun free school zone" fed law.

§ 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
SCHOOL ZONE. (a) Except as provided by Subsection (b), the
punishment prescribed for an offense under this chapter is
increased to the punishment prescribed for the next highest
category of offense if it is shown beyond a reasonable doubt on the
trial of the offense that the actor committed the offense in a place
that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place;
or
(B) an event sponsored or sanctioned by the
University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section
46.03(a)(1).
(c) In this section:
(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code.
(2) "School" means a private or public elementary or
secondary school.

And there is nothing in the new law that requires someone with a handgun in a car to notify an officer during a traffic stop that they have a handgun in the car. When asked, a reply such as "Am I free to go" or "my lawyer said all the information you need is on my drivers license" or "why do you ask" may prevent an officer from ILLEGALLY searching your car. And when asked "do you mind if I look" should ALWAYS be followed with "I do not give you permission to search my car". And then SILENCE! Nothing in the traffic code or anything else gives a cop the legal ability to do 20 questions.

[seamusTX]

The Texas state law is very different from the federal law. The federal law makes it an offense to possess a loaded weapon within 1,000 feet of school ground, period (with some exceptions). The state law enhances the penalty if the subject commits an actual crime, like assault.

- Jim

[frankie_the_yankee]

The federal law makes it a crime unless you have a CHL. So people carrying under HB1815 would seem to me to be at risk, just like everyone in the state of VT. I have not heard of any enforcement in VT or other places where yu can carry without a CHL like AZ (open carry). TX hasn't had the law in place long enough.

I wonder if some crusading DA like that guy in Houston will hit on this as a way of harrassing law-abiding gun owners?

[seamusTX]

I wonder if some crusading DA like that guy in Houston will hit on this as a way of harrassing law-abiding gun owners?

A state DA cannot prosecute a federal law. All he can do is refer the case to the U.S. attorney.

This law is like a house of cards. The U.S. Supreme Court overturned an earlier version of it, and they would most likely overturn this one.

- Jim

[Liberty]

I wonder if some crusading DA like that guy in Houston will hit on this as a way of harrassing law-abiding gun owners?

A state DA cannot prosecute a federal law. All he can do is refer the case to the U.S. attorney.

This law is like a house of cards. The U.S. Supreme Court overturned an earlier version of it, and they would most likely overturn this one.

- Jim

It would be hard for a prosecutor to harrass many people on this one anyway. The DAs aren't the ones that are going to make the stops.

[frankie_the_yankee]

I wonder if some crusading DA like that guy in Houston will hit on this as a way of harrassing law-abiding gun owners?

A state DA cannot prosecute a federal law. All he can do is refer the case to the U.S. attorney.

That's what I meant, that he would start doing that. He got pretty creative with his interpretation of the 2005 change to the travelling statute.

This law is like a house of cards. The U.S. Supreme Court overturned an earlier version of it, and they would most likely overturn this one.

- Jim

I would advise no one to be the test case.

The original act was overturned because it stretched the Commerce Clause too far. So they wrote the new one to only cover cases where the gun had moved in interstate commerce.

Since this is true of almost every gun, the effect is to cover nearly all situations.

This law is less likely to be overturned than the previous one.

[seamusTX]

I would advise no one to be the test case.

Nor would I, or anyone who did not have a million-dollar legal fund on hand. But millons of citizens do it every day.

The original act was overturned because it stretched the Commerce Clause too far. So they wrote the new one to only cover cases where the gun had moved in interstate commerce.

Since this is true of almost every gun, the effect is to cover nearly all situations.

This law is less likely to be overturned than the previous one.

The Supreme Court is now more constitutionalist than the one that was overturned in Lopez, in 1995. The Department of Justice has been correspondingly cautious.

- Jim

[Darwood]

I would advise no one to be the test case.

The original act was overturned because it stretched the Commerce Clause too far. So they wrote the new one to only cover cases where the gun had moved in interstate commerce.

Since this is true of almost every gun, the effect is to cover nearly all situations.

This law is less likely to be overturned than the previous one.

Thank you. I was wondering how this was even vaguely constitutional. Can the Commerce Clause be stretched any thinner?

[frankie_the_yankee]

FWIW, my recollection is that the original version, that The Supremes threw out, stated that education itself has a substantial impact on interstate commerce, making federal gun rules enforceable under the Commerce Clause.

So they re-wrote it so it just applied to guns that had moved in interstate commerce. This is much firmer legal ground than the vaporous theory about education. Even a more conservative court like we have today might uphold it.

Of course, I think there is a company here in TX that makes Derringers. So if you were carrying one of those, you would be exempt from the federal law. The same would apply to any gun manufactured here in TX and shipped directly to a TX dealer.

Notice I say directly. If it was FEDEX'd, it would have been shipped from the manufacturer to FEDEX's Tennesee HQ, then back to TX. (Everything shipped via FEDEX takes this route. It's their system.) Shipping it this way puts in into interstat commerce. So you'd have to be careful.

Either way, get ready for a court battle if a federal prosecutor wanted to push it. I wouldn't want to be the test case, but I wouldn't mind sitting in the gallery when your attorney files a motion to dismiss. The look on the prosecutor's face would be worth a lot.