Carry in Texas

Good question!
You can walk right in/out of a store with a BP (non)gun.
I'll join you in waiting for a knowledgeble reply.

p

Sub 1899 or otherwise you would be really pushing your luck trying to open carry in a non open carry state.
It's still a handgun.

On the weapons side of the law you would be fine, since that is not a "firearm" in Texas (as long as it's not rimfire or centerfire).

However, might want to look at PC 42.01, I'd think you're pretty much asking to meet this one in person

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm

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displays a firearm or other deadly weapon in a public place in a manner calculated to alarm

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I am not a lawyer.

But the problem that I see with this part of the law is the arrest. Any idiot with a badge can arrest you. Sure the DA would have to prove that you were attempting to scare people. They would probably toss it out. If not you could probably win that case.

But you would HAVE to spend the time and money to do so. And a few hours in jail.

But you would HAVE to spend the time and money to do so. And a few hours in jail.

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And that is the real problem. I would assume I'd get arrested if I tried this.

I'd walk I think, $5000 later.....

CoRoMo, most folks who work at finding trouble, find trouble. Standing on principle is all well and good, unless the stand is on the trapdoor of a gallows.

the brandishing charge

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Legally a black powder weapon is not a gun...it is a pipe...brandishing does not apply

So, to HONESTLY do something that is technically legal, but seemingly questionable. Is this still too risky an action?

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I would not risk it. Again, you might get away with it, but you might get arrested if someone freaks out. Might walk, might cost you legal fees and bail.

Only you can decide if it's worth it.

Yes it's horrible, but every time we try to go for open carry in Texas it falls apart, usually derailed by supposed "gun people".

Only you can decide if it's worth it.

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the problem is that the legal system is so expensive...being right does not matter.

Example...you can open carry a shotgun.

If some of us would do it so as to educate the police (after they got their but kicked several times in court) they we could all do so.

A right not used is quickly lost.

If some of us would do it so as to educate the police (after they got their but kicked several times in court) they we could all do so.

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I'm not 100% sure you'd win though, that's the thing on the Disorderly Conduct charge.

Carrying a slung shotgun, OK you're probably good. I've posted before that on occasion I will ride my motorcycle to the range with a FAL slung across my back. OK, not likely to run into the DC charge their either.

Wearing an openly holstered handgun into Wal Mart is almost guaranteed to get you arrested because the exclusion for antiques is so niche law that you can't expect most cops to know it.

You're not going to "kick any butt" in court if you win either. You have no case for false arrest at all, they need to arrest you to verify that the gun is indeed legal, or that will be their claim. You will get the DC charge dropped (maybe) but there is no DA who is going to tell the local PD not to arrest at the sight of an open carried handgun on the off chance it's black powder.

So what do you really win?

Spend that money you'd spend on legal fees lobbying for open carry so we can do it all the time, the right way.

Yes it's horrible, but every time we try to go for open carry in Texas it falls apart, usually derailed by supposed "gun people".

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Could you elaborate on that a little bit for me please TexasRifleman? I haven't been following the local politics very closely the last couple years and I never really did find out what happened to that bill.

Edited: due to fomatting errors

So what do you really win?

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I would go after the cop personally.

The system could not have screwed me if he wasn't illiterate.

Seems like you'd just be asking to fall on (or be pushed onto) your own sword (of justice). Sure, you may win... but it'll cost you.

Guillermo said:

I would go after the cop personally.

The system could not have screwed me if he wasn't illiterate.

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I don't believe that you have any case against the officer. The law says that the gun needs to be pre-1899 or a replica thereof. So, the officer, being unable to determine that on the spot, can arrest you and send the firearm off for verification of age etc and when that comes back the DA can drop the charges.

In the meantime you've been arrested, had charges filed, and bonded out.

Most of the Penal Codes are "defenses against prosecution" not "defenses against arrest".

The same thing applies now with all NFA firearms. In Texas it is illegal to have an NFA firearm. If you have one, the police can arrest you on the spot. Later, when they call ATF and verify you have a tax stamp, the charges will be dropped. They are not required to accept the tax stamp that you might be carrying around with you since, of course, it could be fake.

In reality most of the time they will accept you showing them the tax stamp, I've had it happen to me several times, but technically they could arrest me and I'd have no recourse.

"Can beat the rap but not the ride" applies very much here. That is not false arrest. The cop would simply be doing his job.

Rob G said:

Could you elaborate on that a little bit for me please TexasRifleman? I haven't been following the local politics very closely the last couple years and I never really did find out what happened to that bill.

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Everything I'll say about this is my own personal opinion and gut feeling, if asked to "prove" any of it I could not. That said....

Every time open carry comes up the gun rights groups are mostly quiet about it. TSRA, NRA, I never see a big work up on open carry here in Texas. Even here on THR when it comes up we have countless pro gun people lining up against open carry because they personally don't like it. Not just don't like it, but many folks have posted they would actively work against it. Why I cannot tell and don't really have the heart to try to debate, but in my opinion we don't have open carry in Texas and it's our own fault because we are not united in demanding it.

displays a firearm or other deadly weapon in a public place in a manner calculated to alarm

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A- not a firearm
B- how would he know my intent?

Arresting me for carrying a black powder weapon would be a lot more than a cop doing his job.

It would be a power play and/or illiteracy

Arresting me for carrying a black powder weapon would be a lot more than a cop doing his job.

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Black powder alone does not mean it is a pre-1899 design. He absolutely CAN arrest you and let the DA make the call on whether or not it meets the legal definition of 'firearm'. It's dumb, but it could happen. Notice the law says "firearm or other deadly weapon". Black powder antique handguns are most assuredly deadly weapons.

And you are right, he does not know your intent, that will be decided by the jury. If he has probable cause to BELIEVE it is your intent you can be arrested. Then, at your trial, you get to explain why it was not your intent. Judge and jury agree with you and you're free to go.

But the LEO would not have acted out of line by arresting you most likely, especially on the question of whether or not the handgun meets the legal definition of "firearm". The LEO is not required to try to figure that out to 100% certainty before arresting you. He should, and most cops in Texas probably would, but you're not going to win a false arrest case if he doesn't I don't' believe. I think the best you'd get would be an apology from the department and a promise to try better next time.

I agree that it would be beyond "normal" line of duty stuff but I still think he could argue successfully that he was just doing his job. "It looks like a gun to me, I didn't know it was designed in 1898 instead of 1901". I don't think a jury would disagree with his reasoning on that and to win a false arrest case you'd have to show that he absolutely knew it was a legal thing and he arrested you anyway.

He absolutely CAN arrest you

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A policeman can arrest you right now. They have too much power and while most do not abuse it...many many do.

I still think he could argue successfully that he was just doing his job

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As screwed up as our legal system is...you are probably right.
It is no longer the "justice" system. Those days are long gone.

(BTW, I am not anti-cop...grew up in a cop house...father was the chief in the city I grew up in. I have seen it from both sides)

If the police were called, someone was "alarmed".

If the police were called, someone was "alarmed"

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so?

The law doesn't say that you can't carry things that cause alarm...you just can't TRY to cause alarm...like pointing it at someone and yelling "reach for the sky sidewinder!!!"

I find "hello Kitty" AR's alarming" but you can carry one down the street legally in Texas

If I remember right, sometime in the last 15 years or so this was tried and the guy was arrested and charged. Found guilty and then appealed. The TX supreme court issued the opinion that an antique revolver was a handgun for the purposes of 46.02. I can't remember the case name at the moment and i've been trying to find it for two years now.

DKSuddeth said:

The TX supreme court issued the opinion that an antique revolver was a handgun for the purposes of 46.02.

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That would make sense seeing as how it also includes "deadly weapons".

CoRoMo said:

Is there just no way to 'beat the ride'? Legally carrying concealed, although without a permit, a black powder revolver (non-firearm), for no other reason than personal protection. Is this type of decision just fraught with risk?

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This one is different, and I'm likely to agree with you here. Let me consult my statute of limitations manual before I continue...... OK good.

Before there was a CHL in Texas I was a very bad boy and carried concealed on my person and in my automobile from my sophomore year in high school (1983) until the day the CHLs came about. It was only a misdemeanor charge if I got caught, but I never did, concealed meaning concealed and all that. It was probably dumb, but pretty much everyone I knew did it back then, especially in West Texas where I grew up.

I think the risk of carrying a black powder revolver, clearly not a firearm under Texas law, is much less if not eliminated completely, if concealed vs open.

I agree that, on paper, it would be a completely legal thing to do. I still think you'd be arrested for it if found out, but if it stays concealed who would know?

As a reminder, we don't advocate breaking the law on THR, I'm not a lawyer, etc.

But, I think you could make the argument that carrying a pre-1899 revolver concealed without a permit would not be at odds with current Texas law.

I still think you'd to go jail if it came to light and that is a mighty powerful deterrent, right or wrong.