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Straight Talk About Open-Carry

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If you were to stop ten people on the streets of most cities and towns in Texas and ask them how they feel about “open-carry” the vast majority of them would have no idea what you are asking.  Some would probably think you were talking about walking down the street with an open beer in your hand, relating it in their mind to the Texas law against having open containers in a motor vehicle.  “Open-carry” for purposes of this article refers to legally carrying a self-defense handgun in a holster that it is not concealed from public view.

A significant percentage of Texas residents believe that open-carry is currently legal in Texas, but they are mistaken, except in a few locations.  One can openly carry a handgun on their own property, while engaging in sporting activities in which handguns are commonly used (ex.  hunting and shooting matches), and in their place of business or employment under certain circumstances.

 Other Texans mistakenly believe that there is a law in Texas that specifically prohibits carrying handguns openly.  There is no law in Texas that specifically addresses open-carry except in the limited context of a Concealed Handgun licensee carrying a handgun.  (CHL’s must keep their handguns concealed.)  This distinction in the law is not merely trivia for your amusement; it is a critical factor in legislation that seeks to legalize the carrying of self-defense handguns openly.

Representative Lavender introduced an open-carry bill in the 2009 Texas legislative session, and he is fully expected to do so again in 2013.  Since this subject will again be raised in the Texas Legislature, it is this writer’s goal to provide useful information to my fellow Texans so they will not needlessly fear the concept of openly carrying a self-defense handgun.

History of Open-Carry in Texas

It will probably be helpful to briefly cover the history of open-carry in Texas before getting into the issues that have arisen in the past and that we can expect to hear again in 2013.  Since shortly after the end of the Civil War, it is been illegal for Texans to carry handguns outside your home, except in very limited circumstances (see above).  In 1995, the Texas Legislature passed the first concealed handgun statute creating a system whereby Texans and nonresidents could obtain a Concealed Handgun License.  The statute requires everyone who carries a handgun under the authority of their Concealed Handgun License to keep their handgun concealed so it will not be seen by the general public.

It is also legal for Texans to have a handgun in their motor vehicle, or a motor vehicle under their control, without first obtaining a Texas Concealed Handgun License.  However, Texas law requires that persons carrying a handgun in their motor vehicle make sure that their gun is not in plain view.  So although Texas has never had an stand-alone law prohibiting open-carry of handguns, it has been illegal to do so either because of the general prohibition on carrying handguns, or due to the restrictions placed on concealed handgun licensees and motorists with handguns in their cars.

Licensed v. Unlicensed Open-Carry

People who are unfamiliar with the open-carry topic are likely to hear discussions about licensed open-carry vs. unlicensed open-carry and wonder about the difference.  (Some people refer to unlicensed open-carry as “constitutional carry.”) Licensed open-carry means that only people who hold a Texas Concealed Handgun License, or a license issued by another state that is recognized under Texas law, will be able to openly carry a handgun.  Unlicensed open-carry would allow all citizens who can legally possess firearms under both Texas and Federal law to openly carry a handgun.

This article will be dealing only with licensed open-carry since that is the bill that was introduced in the 2009 Texas Legislative Session and that is what is expected to be filed by Representative Lavender in the 2013 Texas Legislative Session.

Three Groups of People

Generally speaking, people who support, oppose, or fall somewhere in the middle, in terms of  open-carry in Texas, fall into three groups.  Some strongly support open-carry and these people tend to prefer unlicensed open-carry but will reluctantly acquiesce to requiring a Texas Concealed Handgun License in order to legally open-carry.  The number of people falling into this first group is unknown, but it is relatively small in comparison to the total Texas population.

The group of people who strongly oppose open-carry is small.  It is comprised primarily of law enforcement officers and people who support citizens carrying self-defense handguns, but who have strong reservations about the wisdom of openly carrying a self-defense handgun from a tactical viewpoint.  The vast majority of Texans have no strong feelings on either side of the issue, although there are some who fear that a poorly drafted open-carry bill could lead to large numbers of businesses posting their property as off-limits to anyone carrying a handgun, whether openly or concealed.

Common Claims and Allegations

Anyone taking enough interest in the open-carry issue to listen to the debates and read any of the Internet discussion boards are going to be faced with certain claims and allegations made by those on either side of the issue.  Most of the major claims and allegations are discussed below.

Americans Enjoy a Constitutionally Protected Right to Openly Carry Handguns

Many open-carry supporters claim that the United States Constitution guarantees citizens the right to openly carry a handgun without first obtaining a license.  These folks typically point to certain language in the Heller decision to support their position.

Appellate decisions, especially those issued by the United States Supreme Court, often contain language that does not directly impact the question at issue.  This language is called dicta and it cannot be cited as authority in any other cases.  However, dicta is valuable in that it gives some insight as to how the court will likely rule in future cases when this language is directly related to the ultimate issue in question.  Of course, this judicial hint may lose value if the makeup of the Supreme Court changes before a follow-up case is heard.

The bottom line is this; there is no United States Supreme Court decision recognizing a constitutional right to openly carry a handgun, either with or without a license.  There is a split of opinions in the courts of appeal in the federal system, with at least one recognizing that the Second Amendment to the United States Constitution does protect a right to carry a concealed handgun with a license.  There are other federal appellate courts that have held the opposite, so the stage is set for the United States Supreme Court to take a case dealing with citizens’ right to carry a self-defense handgun.  Hopefully, we will have a decision in the not too distant future and that it will recognize that a citizen’s right to self-defense exists outside one’s home.

Forty-four States Currently Allow Open-Carry

While this may be technically correct, it is somewhat misleading.  In many states where there is no law prohibiting open-carry, it simply is not done.  Often this results in law enforcement officers receiving so-called “man with a gun” calls forcing them to interact with citizens openly carrying handguns.  Sometimes this interaction is benign, sometimes it is not.

Often, what is technically legal is not actually done.  For example, it is technically legal to carry a long gun (rifle or shotgun) virtually everywhere in Texas.  However, if one were to throw their AR-15 over their shoulder and walk down Main Street in downtown Houston, Houston Police officers will make sure the experience was unpleasant.

Open-Carry is Necessary in Texas to Prevent People from Being Arrested for Accidentally Exposing Their Handgun

This is one of the more commonly stated reasons for passage of open-carry in Texas.  Reliance upon this argument by open-carry supporters is misplaced as Texas law is abundantly clear.  In order to violate the current statute, a concealed handgun licensee must intentionally fail to conceal their handgun.  Requiring only intentional conduct, rather than the typical standard of doing something “intentionally, knowingly or recklessly,” means that accidental exposure of a handgun does not violate Texas law.

Some open-carry supporters provide anecdotal claims that Texans have been wrongfully arrested for accidental exposure of their handgun.  Even if these claims are accurate, such incidences or few in number and passage of open-carry will not relieve the problem.  Any Texas peace officer who would arrest someone for unintentionally or accidentally exposing their handgun is abusing their authority and is arresting someone for an act that is clearly not illegal.  Any officer willing to do this would find it even easier to arrest someone who is openly carrying simply by claiming that they put their hand on their handgun thus violating the Texas Disorderly Conduct statute.

Open-Carry Deters Crime

Some will argue that citizens openly carrying handguns will reduce crime in Texas.  The argument is that the sight of an armed citizen will deter someone from committing a criminal act.  Unfortunately, there is no empirical evidence to support this claim.  While it is possible that open-carry would have a positive impact on the crime rate, it is highly unlikely.  All a would-be hijacker would have to do is simply wait until the armed citizen left, then commit whatever criminal act they originally planned.  This claim is further weakened by the acknowledgement that relatively few people will exercise the option to openly carry a handgun.

Anyone Openly Carrying a Handgun Will be the First Person Shot by Criminals

It is sometimes claimed that openly carrying a handgun makes one the primary target for criminals.  While this is undoubtedly true for some criminals, the fear is probably overblown.  All but a few criminals do not want a fight, they do not want to get caught, and they do not want to go to prison.  As mentioned in their preceding paragraph, all a would-be criminal would have to do is wait until the armed citizen  leaves the premises, then carry out the planned crime.

Open-Carry Will Increase Crime

This is an absurd allegation and thankfully only the most ardent anti-gun activists make this false claim.  As previously noted, the bill that will be introduced by Representative Lavender would allow open-carry only by Texas concealed handgun licensees.  CHL’s have a sixteen year track record that is the envy of the entire nation.  Over the last four years, Texas CHL’s are fifteen times less likely to commit a crime than is the general population in Texas.  There is no basis to argue that these people would constitute a threat to public safety simply because they exercised the option to openly carry a self-defense handgun rather than conceal it.

People Wanting Open-Carry Are In-Your-Face Cowboys

Some Texans fear that the only people who would actually carry a handgun openly are those who want to draw attention to themselves, who are potentially confrontational, and simply want to present a tough-guy image.  While this claim is probably overblown, YouTube videos are available on the Internet of people in other states intentionally making a show of the fact that their openly carrying a handgun.  The same people often appear to be baiting police officers attempting to create an incident that will allow them to later claim police harassment.

Incidents like those described in the preceding paragraph seem happen more often in states that allow unlicensed open-carry.  There is every reason to believe that Texas CHL’s will behave as responsibly if open-carry passes, as they have for the preceding sixteen years.  While there may be some such instances, there likely to be few in number and very infrequent.

Open-Carry Will/Won’t Result in More Businesses Posting No Trespassing Signs

This is probably the single biggest issue that causes friction between the most ardent supporters of open-carry and people who currently hold a concealed handgun license.  Open-carry supporters point to the experience in other states as evidence that there will not be a rash of “no guns” signs.  Those who are concerned about this issue fear a repeat of what happened in Texas from the passage of the initial CHL statute in 1995 until the law was changed in 1997.

The reality is no one can be certain if the sight of people openly carrying handguns will prompt businesses to post “no guns” signs are not.  However, with a carefully drafted bill such as the one Representative Lavender envisions, safeguards can be in place that will protect the interests of CHL’s who are concerned about losing the ability to carry into businesses that currently do not prohibit their entry with a handgun.

Criminals Will Have Access to More Guns by Mugging People Openly Carrying Handguns

This seems to be another argument primarily from those considered to be anti-gun overall.  There is no empirical evidence to indicate this is a problem in states in which open-carry is actually practiced.  As noted elsewhere in this article, criminals want compliant victims, not gun flights, so it is highly unlikely the criminal will confront someone they know is armed.

Conclusion

I have no idea if open-carry will pass during the 2013 Texas Legislative Session, but it is highly likely that it will pass at some point in the future.  Texans should feel secure in the knowledge that the people they will see openly carrying handguns are members of the most law-abiding and trustworthy segment of society.  This is not conjecture or hyperbole, it is a fact based upon an astounding sixteen year track record earned by CHL’s.

If open-carry does pass, it is incumbent upon those Texans exercising this option to be extraordinarily polite and courteous so as to allay the fears of those who, for the first time in their lives, will see people openly carrying handguns.  For sixteen years, our fellow Texans have been walking with, sitting next to, and eating among, hundreds of thousands of armed, law-abiding CHL’s.  Those choosing to openly carry a handgun should view themselves as ambassadors for those Texans who chose to continue to conceal their self-defense handguns.

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