Open Carry in Texas

Last week, Kim DuToit posted the rare bit with which I disagree.

On the subject of the carriage of handguns in Texas, Kim leans towards being against Open Carry.

"I know, I know: I’m generally not in favor of the precautionary principle when it comes to laws, because I believe that people, by and large, will tend to do the right rather than the wrong thing—and for those who do the wrong thing, we in Texas have excellent jails and a marked affection for the death penalty."

"But this is one situation where it seems to me that experience and common sense of ”a lot of assholes” rub up against the unfettered idealism of ”shall not be infringed”.  The compromise (concealed carry) seems to be not an unreasonable one, under the circumstances."

Conversely, I strongly favor Open Carry.  For several reasons.

First among these is that this is the basic, free excercise of an enumerated right under the Constitution.  It is said that a right unexcercised is a right forfeited; which saying has more potential for truth as applied to the First and the Second Amendment than to perhaps any of the other eight of the original Bill of Rights.

That's just one reason.  Another of course, is that our habitually unarmed friends and neighbors would benefit by being accustomed to being in the presence of armed, peaceable members of a free society.  Another quote, this one from Heinlein: "An armed society is a polite society".  And it is mostly true.  Mostly.  I suppose it's in the area's that aren't mostly experienced wherein the problems lie.  But, as those are the exceptions and not the norm, I would greatly prefer that policy and law be cast in favor of the norm, i.e; the majority.  The majority of the time, with the majority of the people, I trust that the calmative effect of the presence of a responsible citizen who is visibly armed would be of direct benefit to his circumstance, and society as a whole.

Now, Open Carry isn't without it's issues, and certainly the suitability of who might be so carrying is paramount amongst them.  I can think of innumerable louts and miscreants who about as well suited to the responsibility of being an Armed Citizen as Rosie O'Pig is to teach construction stress-failure analysis.  Which tends to parallel Kim's concerns.

Unlike Kim though, I suppose I approach the question with a more optimistic outlook regarding my fellow Texan.  Which is why I diverge from Kim's suppositions regarding the reactions of the average Texan to an openly armed citizen; that is, once some form of Open Carry legislation were to wind it's way through the twist and turns of the Austin Statehouse, finding itself signed by the Governor and subsequently attaining the force of law. 

As any Texan, living in any city of any county has experienced and knows, there is no shortate of various Texas Peace Officers who, in the course of their duty, do not wear a uniform, but do routinely openly carry.  Not just Texas Rangers, but many Deputy Constables, and of course Sherrif's Deputies in the more rural counties, as well as countless non-uniformed officers such as Arson Investigators and the like.

Of course, one does expect to see the acroutements of the duly authorized Police Officer on such officer's belt.  Handcuffs, a radio and the sidearm of course.  But most often, and certainly most importantly, these officers tend to display their badge on their belt, quite close to the sidearm itself.

Because these two objects have come to be expected to be viewed as one in the public's eye, the public also has come to be generally, completely accepting of various non-uniformed Peace Officers being armed and among them.  Of course, like any of you who are in the least bit observant, I too, see the occassional diner give a bit of a wide-eyed look as said officer saunter's by.....  I'm sure it's not in everybody's comfort zone.  But maybe it should be. 

Because the nominally peaceful presence of an armed individual, whether or not that person holds a Peace Officer's commission, ought be known as a sign of reassurance that one is not in the company of ruffians, but of tested and proven citizens.  And how much better if all of these are men and women who have sworn to uphold the law, to defend against unlawful deadly assault, be it of themselves or if need be, their fellow man.

To this end, I would suggest that the Open Carriage of sidearms among Texans be legalized with certain conditions, and encouraged; applauded and emulated at every suitable opportunity.

And while I would never support a Carte Blache approach to Open Carry, I see an opportunity where others may have seen obstacles. 

The conditions and implementation would be key.

Perhaps we can find some gimlet eyed lawyer to put the following into proper legalese?

1.  Any holder in good standing of a valid Texas Concealed Handgun license may apply to upgrade to obtain a Texas Open Carry endorsement to his or her Texas CHL.

2.  In order to obtain an Open Carry Endorsement to the Texas Concealed Handgun License, the candidate must take classes encompassing an enhanced course of study (to be designed by the Texas Department of Public Safety), to reinforce and increase his or her depth of knowledge regarding Texas laws governing the Use of Deadly Force, physcial weapon retention, safety (the Four Rules) and the Conflict De-Escalation.  The Open Carry candidate must successfully pass both written and practical tests demonstrating a superior level of knowledge and proficeincy to these items.

3.  The Open Carry Candidate must, before a duly authorized State of Texas Concealed Handgun License Instructor, physically demonstrate a superior knowledge of revolvers and semi-automatic pistols, and a superior proficeincy in marksmanship with both the revolver and semi-auto handgun.

4.  The State of Texas shall issue a serialized Open Carry medallion, which shall serve a similar purpose to a Commissioned Peace Officer's badge, that is, to assure the public that the person carrying a properly holstered handgun in public view is a citizen vetteed and tested by the State of Texas to be safe, responsible and proficient in knowledge, habit, carriage and use of said handgun.  Said medallion shall be an oblong, rectangular device, in the approximate size and shape of an ordinary buisness card (with rounded corners).  It shall bear a closinne facsimille of the Flag of the State of Texas, which shall be overlaid the words "Texas Handgun Licensee", in 3/8" Arial font capital letters in Gold finish.

5.  In order to prevent or assuage public alarm, it shall be required that the Open Carry licensee shall affix the medallion (item 4, above) to be issued by the State of Texas, to either the wearer's belt, between the buckle and hip, or to be affixed to the left upper chest material of the wearer's garment.  (generally, above the normal location of a dress-shirt's pocket). 

6.  Said medallion shall not confer the authorized wearer any form of Texas Peace Officer's Commission, other than the same rights inherent with any Citizen of the State of Texas to effect Citizen's Arrest or the defense of one's self or another who may be in immediate peril of death or serious bodily injury.

7.  Any holster employed for use by a Texas Open Carry licensee shall utilize one or more of the following forms of physical weapon retention.

a.  Traditional Strap.

b.  Thumb-break Strap.

c.  Traditional Full-Flap.

d.  Mechanical catch and manually activated release latch.

Holsters which rely on a friction fit, or upon spring tension alone with no supplemental strap or other mechanical retention device shall be prohibited for the carriage of a handgun by a licensee of the Open Carry act.

8.  It shall be prohibited for a Texas Open Carry licensee to enter a business which:

a.  derives greater than 51% of it's revenues from the sale of alchohol, and:

b.  does not include an operating, licensed commerical kitchen which is open for business concurrent with the establishment's general hours of business.

(UPDATE: NOTE FROM COMMENTS.  Readers Rosignol & JohnOC rightly point out that this needs to read along the lines of "the serving of alcohol".  Noted and agreed.  Which is why I'm not a lawyer, and something like this would certainly need the attention of a damn good one to get it right!)

9.  The holder of the Texas Open Carry license shall swear an oath or otherwise affirm that he or she will abide by the rules and laws regulating Open Carry in the State of Texas, and furthermore shall reflect the highest levels of responsible public conduct when excercising the rights of their license.

10.  When at such time the Governor shall declare a State of Emergency, due to a weather catastrophe or other similar time of need, any Citizen of the affected Counties, who is in no other way prohibited from the carriage of arms, may excersise the Open Carry thereof, for the duration of the Declared Emergency.  (examples: hurricane Katrina & Rita.) Such carriage shall not relieve the Citizen of the burden to not cause alarm, to refrain from Brandishment or otherwise violate applicable statues regarding the Use or Threat of Use of Deadly Force.  The authorization for the unlicensed Open Carry of a handgun shall expire at the next midnight following the first 24 hours of the delcared end of said State of Emergency.

I'm sure I, and many of you, could easily come up with similar plans, more details and for damn sure, much better written proposals.  But I'm not here to establish who might be the better jailhouse lawyer.  Hell, I don't even play one on teevee!

But I'll stand by my proposal as being a logical approach to the issue of Open Carry in Texas, and one that might go far to assuage the feeeeelings of the GFW sheeple regarding the matter.

Moreover, by initially restricting the practice of Open Carry to those who have already taken and passed their required CHL course, with subsequent background checks and then addittional training to authorize Open Carry, the "sell" to the public at large will be a much easier one than to begin the Open Carry debate with the idea of Open Carry by damn near anyone, damn near anywhere and damn near anytime.

But yes, that comes a few years later, when the public as a whole gains a certain comfort level with not only the idea of, but the very sight of openly Armed Citizens circulating among them.  Without undue incident over a period of a very few years, the legislative restrictions can be and should be incrementally relaxed, until such time that largely unrestricted, unlicensed Open Carry would be the next logical, reasonable step, rather than a revolutionary one.

Folks, we lost the bulk of our Second Amendment rights in the same manner; one restriction at a time, one law at a time.  And the odds are, that's going to be our best approach to winning back those freedoms; playing the GFW's own game back against them.

So, I guess I'm not all that much in disgreement with Kim, after all.  Maybe the real difference is simply this.

I see a way outta these chains.  But it's going to take one hell of a lot of work.

 

Comments

[Danny Boy]

While I appreciate the thoughtful consideration of your nuanced approach, here's an alternative approach, although perhaps a little simplistic for your taste:

"A well regulated militian being necessary to the security of a free state, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED"

Sound familiar? May it ever be so. Open carry of a sidearm is unrestricted in Idaho (and several other states) and has never, to my knowledge, been a problem at any time. Granted, rarely does one see an openly carried pistol these days other than out in the field or by an officer, but at least the option exists: no permits, no legalese, no infringement.

Worried about the occasional idiots with guns getting drunk in bars? Not a problem. It's illegal to drink and carry, just like it's illegal to drink and drive. Get drunk and pull your gun unnecessarily anyways? Better not, you might get shot. So it doesn't happen.

I love the Texans and their healthy attitude toward firearms, but your carry laws still need a little work. (ie, loosening up) Keep up the good work!

[Danny Boy]

Don't get me wrong, yours is an excellent and well thought out plan to turn Texas or any other place back into an (openly) armed and polite society, one step at a time.

I like it.

[Hammer]

I like the idea of open carry and it looks like you have thought it out considerably.

I've got a bunch of cool guns and holsters that don't see the light of day because of the carry laws.

If your plan went into effect I would carry my 629 with glasers.

I'm tired of ruining the finish on my blued concealed guns with Texas sweat.

[Jim - PRS]

Open vs. concealed carry is an interesting issue, but one that is completely foreign to New Jersey.

This is so, because the Jersey Legislature has already pitched a good deal of the Second Amendment into the trash bin in several respects, but most certainly by requiring a citizen to show "good cause" before a carry permit can be issued. The courts have cooperated in this scheme by virtually assuring that no one can ever prove "good cause".

As a result, only cops and bad guys carry guns in Jersey, and the bad guys take full advantage of this.

Great post.

[rosignol]

8. It shall be prohibited for a Texas Open Carry licensee to enter a business...

As written, this clause would preclude someone with your proposed TOC license from entering a bar, regardless of if they were carrying at the time.

[JohnOC]

8a needs to be revised slightly, perhaps with 'service of alcohol' instead of sale of, otherwise a liquor store would be offlimits.

[William Earl Dungey]

Arm ten thousand of my country's citizens in open carry and I will not worry nor break a sweat. I don't fear them, eighty percent are fine folks, ten percent I don't trust to do well and ten percent I know will do wonderful things that I never imagined - and one hundred percent of them will never be controlled by bad laws and excess oppression in realm of Safety. I find most people are good, like I find most life is wonderful, ninety percent of us will be able to affect the ten percent I don't trust - and they will scurry off to the darkness and hide.

[thebastidge]

Given the current political climate, and as a move towards something better, points 1-3 are not objectionable. But point 4 just confuses the issue. I see where you're going with it, but I doubt the efficacy of such a measure, given the potential for counterfeiting etc. You're better off just saying that a licensee must show their permit to anyone who asks. Eliminating point 4 automatically takes out point 5 and 6. I don't see the point of 7. Dictating how someone would carry isn't even done for police officers. Most of them carry high on the hip because it's easier to get in and out of vehicles, and for retention while grappling close in with a perp. The private citizen doesn't, or shouldn't need to physically engage a perp- if you're threatened with serious bodily harm or death, shoot the bastard, don't wrestle with him. It's not your responsibility to 'arrest' him.

#8 again is unobjectiobale given current political climate and feasibility, especially with the above-noted verbiage “for on premises consumption” added. I'm in favour of #9 for current concealed carry holders, people who want to open carry, kids in schools, public offocials at ceremonies, around the picnic table on holidays, etc. Except the oath should be to uphold and defend the Constitution of the United States, of your state of residence, and the laws derived from same. Hint- there's really good examples of wording the be adapted for that purpose here and in the first half of this.

Number 10 is redundant given that bearing arms is a right protected under the 2nd Amendment, and would be obviated given a rational understanding of the natural rights of human beings and the purpose of the 2A.

Anyway, if situations like the aftermath of Katrina happen and you worry too much about the niceties of open carry, you're worrying about the wrong thing anyway.

[cmblake6]

L rather like it. The exception that was noted regarding the "51% rule" precludes stopping to pick up tipple on the way home from work. Driving While Intoxicated, and Carrying While Intoxicated should be equal, similar restrictions or laws. Aside from that, just as over here in NM, one step at a time.

[Jim]

Rosignol & JohnOC.

You're right, guys. See my annotation at point #8 in the body of the post.

But Mr. Bastige? Dealing with point #4 is just good P.R. It's not for you and me, it's to assuage the fears of the GFW public.

To deal with the potential of forgery? First, make it a Class A misdemeanor to possess a forged medallion, and a Felony to carry one while armed.

And on your complaint about point #7? Come on man, you can't be serious! Damn near every P.D. I've ever been around has very well defined requirements for an officer's belt gear, and nowadays the overwhelming majority of such agencies absolutely do require some form of retention holster.

And as far as this somehow interfering with the Citizens freedom to carry as he sees fit? Maybe, that is, if your main concern is that of the philisophical 2A purist. And maybe, after a few years without "blood in the streets", the population as a whole will just grin and agree to let us all carry however the hell we wish.

But until then, this is salesmanship, and we've got to sell a doubting public on the benefits of our carrying openly.

Reassuring them by demonstrating that some Joe Yokel out there won't be able to "just yank our guns outta our holsters", is a small accomodation, really.

And finally, I was in the Rita evacuation. Being able to have carried openly, without fear of being nailed by some zealous cop, would have been one less stressor on that sad journey.

There's an old saying: "The Perfect is the Enemy of the Good".

My ideas for damn sure aren't perfect. But I'll wager my approach will get Texas, a state which has not enjoyed open carry for around a hundred years now, to begin to right that course, even though more gradually than some may desire.

And yes, just as I get pissed at libertarians for their never ending splitting of the hairs of doctrinal purity, I also do tend to get peeved with my friends in the shooting world for the same reason.

I too, wish we were "at purity", as the founders wished when the penned the Second Amendment. But I also know without a doubt, that we're not going to get from A to Z, without going through at least a big chunk of the intervening letters, so to speak.

The GFWs got as far as they did by pushing their version of "compromise", where they get what they want, in increments large and small, while we lost ground with every "deal".

Well, I'm just proposing that we play their own game against 'em.

"Commmmmppppprooomissseee", is one of the emotional trigger words of the left. We can press them to be reasonable, etc. Indeed, I want to use every one of their catch phrases against them, at every opportunity.

No doubt, we'll get further in increments, than we will with the obstinance of purity.

Jim
Sloop New Dawn
Galveston, TX

[Mike M.]

I've got one issue....I really don't like the Government telling me what holster to use. They aren't buying the thing. And I'm partial to Ken Null's work.

[Bruce]

Alternately, you could adopt New Hampshire's statute regulating open carry. If one existed.

100% legal, no license required.

Want to carry concealed? That'll be $10 for the license. No photographs, no fingerprints, turnaround time is about a week.

Now, to get back to work on the NH/MA border moat.

[David, Chandler, AZ]

The way Arizona does it seems to work.

You may carry openly as long as all or part of your holster can be seen.

Other restrictions still apply such as places that serve alcohol, schools and so on.

[geekWithA.45]

A surprising number of states are open carry. I don't know the number off the top of my head, but at one time, they exceeded the number of "shall issue" states.

In fact, the existence of open carry was pointed to by opponents of "shall issue" in Ohio as a reason that "shall issue" was unnecessary. (After all, if you really think you need a gun, why not carry it openly?)

That was, until they started organizing "open carry" marches in support of "shall issue". :)

Having lived and worked in several open carry states, I gott say that the excercise of it is incredibly rare, at least on the east coast, and the both of you are making a complicated mountain out of a relatively simple molehill.

I accept your point on the need for good PR, and to get the public's support.

Actually, what you need is less the public's support, and more a lack of public opposition.

I submit that the CHL already serves that purpose, so, if you want to start with the compromise position of open carry with a permit, that's keydokee.

Just add one line of well crafted text to the existing CHL statutes, and be done with it.

[sam]

Hell, open carry is legal in California, in counties with populations less than 200,000. Cities in such counties can ban open carry, though.

One intrepid sole has been trying it out for months in his county, with few raised eyebrows.

See opencarry.org.

[308Mike]

Personally, I think Texas is going at it backwards with regard to Open Carry (however, all states should be following "Shall not be Infringed" - but they're not). I think it should be more along the lines of Arizona, where OC is default and Concealed Carry is the endorsement - because LEOs won't know who's carrying.

Having OC available gives people the opportunity to protect themselves on the spur-of-the-moment, without the licensing process and other red-tape BS. Not everyone wants to carry all the time, and having unregulated OC is far more obvious to LEOs and others planning evil deeds, with the added bonus of allowing people traveling thru Texas to be armed without needing to be licensed.

I like being able to OC in Arizona, but I don't visit often enough to look into a CCW.

Unrestricted Open Carry is great for visitors.

[308Mike]

Sam, don't go by opencarry.org for anything other than initial information. Verify the actual language before relying on it. Current CA law (Penal Code) reads (in very small part - there's lots of other parts to it including gangs, prohibited persons, etc., but no reference to 200,000):

12031. (a) (1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

[sam]

Mike, I am personally going to test those provisions. I'd rather get a CCW, but that ain't gonna happen anytime soon in my county, either.

IANAL, but from the CAAG website, it says this:

"Where the population of the county is less than 200,000 persons, the licensing authority
may issue a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, loaded and exposed. (Penal Code § 12050.)"

http://ag.ca.gov/firearms/forms/pdf/Cfl2006.pdf (page 34)

Pass the salt, though.

[cargosquid]

Actually, universal open carry is quite successful. Virginia allows open carry by anyone able to legally own a firearm. Certain places are restricted. Open carry is the only legal way to carry in an alcohol-serving restaurant. Not many take advantage, but those that do, by and large, do not report any problems. Police, if called at all,show up, and when they find no crimes being committed, sometimes just leave without speaking to anyone. In fact, one bank loves having a gun carrying customer. His presence prevented a robbery.

[308Mike]

Sam, you're right. I don't trust the CAAG's website since it's not updated very often, but when I searched the Penal Code for 200,000, Section 12050 did not come up. Putting the section in provided the correct information. That section just gives the Sheriff the ability to issues either type of permit.

Personally, I think it's nuts to have to get a permit to open carry, but that's this incredibly stupid state for you.

[Jim]

308 Mike, at least in CA, you can at least, in theory get a license to carry openly in those sparsely populated counties.

That's not even in the cards here, to date.

As for the other comments from states like Arizona, Vermont and Alaska......

...... the rare times when you're envied by Texans.

Which is the point of my peculiar essay. You're there already.

What we have to consider here is how to succeed in that sausage factory we call the Texas Legislature.

And I assure you, going for the whole enchilada is a guaranteed path to failure. Hence, my tactics and suggestions.

Y'know, no one even really cottoned onto the real Camel's Nose Under The Tent. What do y'all think would be the public's reaction when, once they get a taste of being legally (albiet temporarily) empowered to carry, even if only under a State of Emergency?

Presuming the GFW's usual fears about Dodge City and rivers of blood fail to materialize, I've no doubt that Joe Citizen will become much more supportive of unrestricted Open Carry.

Incrementalism has been our enemy. Now, it's time to make it our friend.

Jim
Sloop New Dawn
Galveston, TX

[The Freeholder]

We will know we've won when an openly carried firearm draws as much attention as a openly carried cell phone.

[Caimlas]

While I'm not a Texan, I would actually prefer this kind of regulation on Open Carry. Even though my state allows me to carry concealed with only a $10 fee and a 7 day wait (no qualification course), for open carry I would support this Act.

If, for no other reason, than for the clarification it would provide. Currently, the clarification of allowance for Open Carry is spotty at best. There is no distinction, as far as I can tell - which can be seen as both good and bad. The good is obvious, though the bad is that it may potentially be interpreted as "brandishing" and other such nonsense by an unfriendly politician and officer.

[Ed Foster]

In regards to the PR factor, Connecticut has perhaps the toughest fair permit system on the books. When I got my permit, my background was checked back to birth, three times, by local, state, and federal authorities. My military records were pulled at Ft. Holabird, and I had to supply three letters of reference from permit holders, elected public officials, law enforcement officers, or doctors, any of whom were required to have known me for more than five years. After that, I had to pass a training program more comprehensive than that given to many law enforcement officers. George Washington would not have handed a musket to a known psycopath or the town idiot. Advantage? Nobody can call the permit system into question without also calling the competency of the comparably trained and vetted police into similar question. An advantage of no small import in a very liberal state

[Roger Slayden]

Let me see if I can help put OC into perspective. Arizona, classical example, had 433 murders the year before they went to OC. The following year they had FOUR, so that should say something for OC. It would also stop a lot of robberies, and a deterent to someone coming on your property to steal anything, knowing you carry a weapon all of the time.

[Patrick O'Casey]

I live in Colorado Springs, Colorado. Here we still believe in the Old West Laws, Open Carry is just fine throughout the State with the exception of Denver where it would be the wisest to OC. Up there when people stop at a stop light, not only in the dark hours but daylight too, men will "jack" your car at any cost needed for the resistance the car owner might use. Just think of all the saved cars there could be if the citizen could protect their belongings. When I ride a motorcycle here in El Paso County, CO., I get funny, strange, and even angry looks. Oh well, it's my God Given Right.
Keep up the Grrrrreat Site.
100% Service Connected Disabled Army American Veteran - Cpl. Patrick O'Casey

[Richard in Austin]

Nice post. I want open carry in Texas. I want all my freedoms, all the time.

Here's a group committed to make it happen, apologies if they've already been linked:
http://www.txcdl.org/index.html

Not to mention that concealed carry has its problems: comfort, ability to bring the firearm to bear when needed, having to worry about printing/flashing, etc.

Texas is behind the times on this issue. I can't tell you how many folks I've met from other states who think we already have open carry, just because we're Texas.