DickP
Member
Senior member Jim Keenan has questioned, with good reason, why it is that I would give significance to the "antique" status of a top-break .44 Russian revolver ("Firearms Research," Feb. 15). My primary motive for enquiring whether this gun is a "pre-1899" specimen was to have at least one weapon in my possession that is not considered a "firearm" for federal purposes. While I don't anticipate nationwide firearm confiscation in the near future, who knows?
As a secondary matter, and one that I feel merits posting under this "Legal" section, I live in the Republic of Texas. As Mr. Keenan quite correctly points out in his post, Texas law recognizes the use of a "deadly weapon" as an aggravating element in several assaultive offenses and makes no distinction whatsoever as to the date of a weapon's manufacture. Indeed, the state of Texas has considered a BB gun to be a deadly weapon for purposes of prosecuting an aggravated robbery charge (Colon v. Texas, 680 S.W.2d 28).
I would, however, take respectful exception to the portion of Mr. Keenan's post regarding concealed carry - at least in Texas. The 1990 case of Cantu v. Texas, in which the appellant and his distinguished associate were arrested after discharging multiple firearms out the window of their car at the occupants of another car, is relevant. As one of the firearms the defendant was caught with was an illegal sawed-off shotgun, he naturally tried to avail himself of Texas Penal Code 46.01(3), which excepts from the definition of "firearm" weapons manufactured prior to 1899. Appellant's argument was that the shotgun was a pre-1899 weapon and therefore was not a firearm, therefore it could not support a "prohibited weapon" charge. The court made short work of this argument, holding that the illegal characteristic of the weapon (sawed-off barrel) had to be an integral part of the weapon, as originally manufactured, if the weapon as a whole was to qualify as an antique and enjoy the claimed exemption.
What is pertinent in this case regarding concealed carry of antique weapons in Texas is the distinction this court (and others more explicitly, see Colon v. Texas) draws between assaultive offenses and possessory offenses. The court here states that 46.01(3), which provides the antique exception to the defintition of firearm, "...furnishes a defendant with the chance to show that the weapon itself is an antique and therefore cannot be characterized as a firearm. Thus, he cannot be validly charged with possession of a firearm since the gun is not a firearm." What Texas case law seems to show (and I'm not a licensed attorney, so let me stress that this is only my humble amateur opinion and I would welcome correction) is that while a pointed stick likely qualifies as a "deadly weapon" for purposes of ADW and related offenses in Texas, Texas Penal Code chapter 46 controls for POSSESSORY offenses (such as Unlawful Carrying of a Weapon) and that CCW liability is not dependent on whether the instrument qualifies as a "deadly weapon" under chapter 1.07, (which an antique firearm unquestionably would) but whether such weapon qualifies as a "firearm" under 46.01(3), which an antique arguably would not.
This is essentially an academic question, as I have zero inclination towards being a test case for carrying an antique weapon without a CCW license, and strongly suggest that no one else attempt such a foolhardy act. I do, however, have a "belt-and-suspenders" inclination towards choosing a carry weapon that has proved itself every bit as accurate and reliable as any modern weapon I've shot, has the power (cowboy loads notwithstanding) to instantly neutralize any dangerous (human) aggressor I'm likely to encounter, yet at the same time MAY (and this is NOT a possibility I'm banking on, believe me) afford me the opportunity to escape liability if I'm so stupid as to wander, while carrying, into a restaurant that earns more than 50% of its revenues from alcohol and am arrested for UCW. PLEASE believe that I recognize the responsibilities inherent in possessing a CCW license including not being so thoughtless as to commit such an action, but I reiterate: all things being equal, why WOULDN'T one choose a weapon that may qualify for possessory exceptions that otherwise would be unavailable? I would suggest that accepting responsibility for CCW requirements should not prevent one from hedging his bets -- namely, that if a possible "antique weapon" exception to possession laws exists for a weapon that one would otherwise feel comfortable carrying, why shouldn't one give weight to the possibility of such an exception, however remote?
Many thanks,
Dick
As a secondary matter, and one that I feel merits posting under this "Legal" section, I live in the Republic of Texas. As Mr. Keenan quite correctly points out in his post, Texas law recognizes the use of a "deadly weapon" as an aggravating element in several assaultive offenses and makes no distinction whatsoever as to the date of a weapon's manufacture. Indeed, the state of Texas has considered a BB gun to be a deadly weapon for purposes of prosecuting an aggravated robbery charge (Colon v. Texas, 680 S.W.2d 28).
I would, however, take respectful exception to the portion of Mr. Keenan's post regarding concealed carry - at least in Texas. The 1990 case of Cantu v. Texas, in which the appellant and his distinguished associate were arrested after discharging multiple firearms out the window of their car at the occupants of another car, is relevant. As one of the firearms the defendant was caught with was an illegal sawed-off shotgun, he naturally tried to avail himself of Texas Penal Code 46.01(3), which excepts from the definition of "firearm" weapons manufactured prior to 1899. Appellant's argument was that the shotgun was a pre-1899 weapon and therefore was not a firearm, therefore it could not support a "prohibited weapon" charge. The court made short work of this argument, holding that the illegal characteristic of the weapon (sawed-off barrel) had to be an integral part of the weapon, as originally manufactured, if the weapon as a whole was to qualify as an antique and enjoy the claimed exemption.
What is pertinent in this case regarding concealed carry of antique weapons in Texas is the distinction this court (and others more explicitly, see Colon v. Texas) draws between assaultive offenses and possessory offenses. The court here states that 46.01(3), which provides the antique exception to the defintition of firearm, "...furnishes a defendant with the chance to show that the weapon itself is an antique and therefore cannot be characterized as a firearm. Thus, he cannot be validly charged with possession of a firearm since the gun is not a firearm." What Texas case law seems to show (and I'm not a licensed attorney, so let me stress that this is only my humble amateur opinion and I would welcome correction) is that while a pointed stick likely qualifies as a "deadly weapon" for purposes of ADW and related offenses in Texas, Texas Penal Code chapter 46 controls for POSSESSORY offenses (such as Unlawful Carrying of a Weapon) and that CCW liability is not dependent on whether the instrument qualifies as a "deadly weapon" under chapter 1.07, (which an antique firearm unquestionably would) but whether such weapon qualifies as a "firearm" under 46.01(3), which an antique arguably would not.
This is essentially an academic question, as I have zero inclination towards being a test case for carrying an antique weapon without a CCW license, and strongly suggest that no one else attempt such a foolhardy act. I do, however, have a "belt-and-suspenders" inclination towards choosing a carry weapon that has proved itself every bit as accurate and reliable as any modern weapon I've shot, has the power (cowboy loads notwithstanding) to instantly neutralize any dangerous (human) aggressor I'm likely to encounter, yet at the same time MAY (and this is NOT a possibility I'm banking on, believe me) afford me the opportunity to escape liability if I'm so stupid as to wander, while carrying, into a restaurant that earns more than 50% of its revenues from alcohol and am arrested for UCW. PLEASE believe that I recognize the responsibilities inherent in possessing a CCW license including not being so thoughtless as to commit such an action, but I reiterate: all things being equal, why WOULDN'T one choose a weapon that may qualify for possessory exceptions that otherwise would be unavailable? I would suggest that accepting responsibility for CCW requirements should not prevent one from hedging his bets -- namely, that if a possible "antique weapon" exception to possession laws exists for a weapon that one would otherwise feel comfortable carrying, why shouldn't one give weight to the possibility of such an exception, however remote?
Many thanks,
Dick
