There was supposed to be an open carry law introduced in this session of the legislature, but I can't find anything in the hopper that looks like one.
I've seen lots of arguments on one side and the other. I've seen lots of proposals for changing the Penal Code. If we must wait until the next session, perhaps it's time to push for a change to the Texas Constitution.
Article 1 (Bill of Rights), Section 23 of the Texas Constitution adopted on February 15, 1876, reads: "RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."
By the time the Constitution was ratified, the Legislature had already gutted article 23 with the Act of April 12, 1871, which essentially prohibited the bearing of arms. The act was upheld by the Texas Supreme Court in English v. State in 1872 where the court said: "1. The act of April 12, 1871, regulating and in certain cases prohibiting the carrying of pistols, dirks, and certain other deadly weapons, is not repugnant to the second amendment to the constitution of the United States, which provides that "a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," nor is the act in violation of the thirteenth section of the first article of the constitution of this state, which provides that "every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the legislature may prescribe." 2. The "arms" referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc., regulated by the legislature in the act of April 12, 1871. 3. The powers of government are intended to operate upon the civil conduct of the citizen; and whatever conduct offends against public morals or public decency comes within the range of legislative authority." (Does this line of reasoning sound familiar to anyone?)
The Texas Supreme Court, in rendering its opinion, overlooked or ignored Texas' own, and at that time, recent, history in saying, "The "arms" referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc., regulated by the legislature in the act of April 12, 1871."
Bowie knives? As in Jim Bowie, one of the heroes of the Alamo? As in Jim Bowie, a soldier in the Texas militia?
The Texas Supreme Court had basically adopted one of the anti-gun crowds favorite tactics: defining the militia as an organized, uniformed body of men under regular government control, like the Texas National Guard. The truth is the Texas militia didn't look anything like that. My cousin spent years working in the Texas State Archives; I've never seen any descriptions of the Texas militia as being anything like the National Guard. I am sure cutlery of all descriptions could be found in the kits of Texas militiamen and guns would consist of pretty much anything that would fire a bullet.
The Act of April 12, 1871 was enacted during the Reconstruction, not one of the brighter periods of American, or Texan, history. Far from being a measure with "a view to prevent crime," it was one of the "Jim Crow" laws intended to disarm recently freed slaves. As such, it should have been repealed years ago but remained essentially unaltered for 124 years - until 1995 when the first concealed-carry legislation was passed. Instead of repeal, lawmakers have been reluctant to correct the error of their predecessors and, even when the legislature does do something, like passing the legislation that allowed unlicensed concealed carry in vehicles, other politicians, like the District Attorney of Harris County, defied the new legislation and instructed law enforcement agencies to continue enforcing the old law, even though it would now be impossible to get a conviction under that law.
Instead of going through all sorts of gyrations about open carry, concealed carry, printing, etc., I think we need to make one simple change: one that actually simplifies the Texas Constitution. Amend Article 1, Section 23 to read: "RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State."
Wyoming, which already allows open carry and licenses concealed carry, is considering legislation that would allow the state to join Alaska, Arizona and Vermont as a Constitutional carry state. If passed, citizens of Wyoming would be able to carry, openly or concealed, without prior government permission.
Forget about "fixing" Chapter 46 of the Texas Penal Code. Change the law, top to bottom, to define those circumstances in which prohibiting carry is tied to the actual commission of an offense rather than simply making the carry an offense in and of itself.
Before you dismiss open carry out of hand, consider this: What if Texas had permitted open carry with a license and continued to prohibit concealed carry under almost all circumstances? What if, instead of printing, you had to worry about concealing any part of the gun, even accidentally? Would you still get the license? Would you dismiss those who wanted concealed carry?
In the end, it's not about open carry or concealed carry: it's about carry; the Right to Keep and Bear Arms without government permission. The "right of the people" that predated not only the Texas Constitution but the U.S. Constitution.
