Wednesday, January 19, 2011

Mess With Texas

Those who know me, know that I make considerable criticism about the gun laws of socially liberal states like New York and New Jersey, states where the possession of firearms is illegal by statute, and certain persons are licensed to break this law and possess them under limited circumstances. Naturally I will continue to criticize limiting the possession of arms to a elite minority, as this is a deplorable abuse of a Constitutional right.

It must also be said that several socially conservative states are no better when it comes to abusing the right of the people to keep and bear arms. In these states, possession of firearms is widespread and available to all law-abiding persons; however, the use and carrying of firearms is subject to a dizzying array of restrictions. Many of these states had decades-long prohibitions on the carrying of concealed firearms, gun control laws instituted in the wake of the Civil War intended to disarm newly-freed blacks, and in the modern day, laws intended to entrap unknowing persons intending to obey convoluted laws.

A distinction exists, in my experience, between gun owners in the Northeast and gun owners in the South- namely, that gun owners in the South are far more reluctant to acknowledge the faults in their state gun laws.

Texas is, in my opinion, the worst offender in this regard. The "Don't Mess With Texas" attitude seems to extend even into the criticism of the severe faults in Texas' gun control laws. I don't abide the infringement of any Constitutional right- and so, I shall "Mess With Texas".

It is interesting note, firstly, that one of the major factors in Texas' independence from Mexico came as a result of Santa Anna's attempt to seize arms from white militiamen. As described by Rev. C. Newell in this article by Stephen Halbrook (from which I borrow heavily for part of this blog post, and which I highly recommend the reader to read in addition to this post):
The next and last of the leading causes alluded to, was an order received from Gen. Cós in the course of the month of September, requiring the citizens of Brazoria, Columbia, Velasco, and other places, to deliver up their arms to the Mexican authorities: thus attempting to carry out in Texas the plan adopted by Santa Anna, and put in execution in many parts of Mexico, of disarming those whom he suspected of being disaffected to his Government. This ... showed the people of Texas what sort of government they were to expect--that of the bayonet, and the entire sway of military.
Mirroring the American Revolution, wherein the first shot was fired in order to prevent British seizure of Colonial arms, one would imagine that this bit of history would cement in the minds of future generations the need (to paraphrase Thomas Paine) to jealously guard their arms.

Not so.

In drafting a Constitution for statehood in 1845, Texas legistlators immediately began paring down the right to keep and bear arms- by including a caveat allowing the state to regulate the carrying of arms (including all weapons, not just firearms). The author of Texas' RKBA, John Hemphill, stated his belief that individual self-defense was not a valid concern:
The object of inserting a declaration that the people shall have a right to bear arms is, that they may be well armed for the public defence; it is in order that the law regulating the militia should be kept up. It is not a supposition which can arise in a country where the common law prevails, that it is necessary to bear arms for protection against a citizen.
Read that again: "It is not... necessary to bear arms for protection against a citizen".

Following the Civil War, the question of black Freedmen arose- would they attain all the rights of whites?

In 1866, Texas revised its Constitution- and adopted laws designed to disarm blacks. Since the state couldn't pass a blanket "blacks may not possess firearms" law, they instead passed a series of laws regarding the times and places a person may carry a firearm. One such statute, described by the Attorney General of Texas in 1868:
Makes the carrying of fire-arms on enclosed land, without consent of the land-owner, an offence. It was meant to operate against freedmen alone, and hence is subject to the same objections...
The Attorney General also determined that Texas' gun control laws constituted a "cunningly devised system, planned to prevent equality before the law, and for the restoration of African slavery in a modified form, in fact, though not in name." In other words, the cumulative effect of these "times and places" restrictions was to bar a segment of the population (Blacks) from being able to exercise, in any meaningful way, the right to keep and bear arms.

Another law, passed in 1871:
Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State...
This is the law that stood for 125 years, until Gov. George Bush signed into law Texas' Concealed Handgun Act. More on that act later.

The phrase contained above- "...unless he has reasonable grounds for fearing an unlawful attack on his person..." was construed to mean "openly carrying a handgun", specifically a large, expensive, "dragoon"-type pistol. Indeed, the Texas Supreme Court found, in State v. Duke (1875):
The arms which every person is secured the right to keep and bear... must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State. If this does not include the double-barreled shot-gun, the huntsman's rifle, and such pistols at least as are not adapted to being carried concealed, then the only arms which the great mass of the people of the State have, are not under constitutional protection. But, beyond question, the dragoon or holster pistol is part of the arms of a soldier in that branch of the service.
Let's consider the implications of this statement:

1) "Open and manly use" inflicts a sexist, racist condition upon the carrying of arms. The social standards of the day forbade women from openly carrying firearms. A common perception of the day was that a woman should rely on her husband or a male relative for protection- indeed, a common bias of the day was that the only woman who would carry a concealed handgun to protect herself was a prostitute.

Likewise, requiring all persons to carry handguns openly exposed individual blacks to disarmament by hate groups such as the KKK, and even by corrupt police officers.

2) The statement makes reference to "pistols... not adapted to being carried concealed" and "dragoon or holster pistols"- both statements referring to the largest and most expensive variety of handgun available at the time, and a common weapon of cavalry "branch of service", hence the "militia use" protection. "Holster", as used at that time, referred to a holster suspended from a saddle, and a "holster pistol" was a pistol too large to be carried on the belt, instead carried in a saddle holster. Such a large handgun was virtually impossible for a woman to carry in the typical female attire of the day, and was generally too expensive for a poor person to afford.

The cumulative effect of these two restrictions, was to confine the right to keep and bear arms to middle- and upper-class white males.

Flash forward to 1996- after 125 years of prohibiting the concealed carry of firearms, Texas began issuing licenses to carry. These licenses, being far better than a general prohibition, nonetheless carried a wide variety of restrictions.

For starters, Texas has the longest list of "times and places" restrictions- in other words, restrictions on when and where a person may lawfully carry a licensed handgun- of any state in the nation. Indeed, ask a Texan with said license to list all of these places and times, and you're likely to recieve a response along the lines of "Hmm... lemme think...". This forum discussion provides an understanding of the complexities of this problem.

Here is the actual list:
Bars- or any place "deriving 51% or more of its revenues from the sale of alcohol for on-premises consumption";
Elementary, middle, and high schools, and universities, including off-site facilities and vehicles used by same;
Sporting events
Amusement parks
Hospitals and nursing homes
Correctional facilities
Churches, synagogues, or other places of worship
A meeting of a government entity
While the licensee is intoxicated ("Intoxicated" is not defined with a blood alcohol limit);
At a polling place
Within 1000 feet of a place of execution
Race tracks (?)
Any premises where the owner of the property posts a sign stating the prohibition (this includes most private employers' property).

Confusingly, some of these prohibitions apply to all firearms possessed by all private persons, while others apply only to concealed firearms possessed by license holders.

Also, it is a special crime for a license holder- and only a license holder- to "intentionally, knowingly, recklessly, or with criminal negligence" expose a handgun. With this wording, a clever police officer could make the case that anyone whose concealed firearm becomes exposed- even accidentally- is guilty of a crime.

Once again, the cumulative effect of these "places and times" restrictions, as in the past, is to limit the practical exercise of the right to keep and bear arms. Who doesn't enter one of the above-named places every day? Suddenly a "concealed handgun license" becomes, in practice, a license to "leave your gun in the car". And, incidentally, several cities in Texas have enacted- or have proposed enacting- local ordnances to prohibit the storage of a firearm in an unattended vehicle. In thse cities, a "license to leave your gun in the car" becomes a "license to leave your gun at home", effectively nullifying the "bear" portion of the right to keep and bear arms.

At this juncture, I will recite an above-mentioned quote:
"It is not... necessary to bear arms for protection against a citizen".
Texas is coming full-circle.

I'm pleased to see that Gov. Rick Perry is pushing for a reduction of these restrictions. So far he has not been successful in his attempts. Perry, who is a license holder and regularly carries a handgun, famously shot a coyote this past April in defense of his family dog.

An atrocious condition exists in Texas, and in some other socially-conservative states: Although the majority of the public may possess and carry handguns, these persons encounter bizarre restrictions regarding when and where they may carry them, and indeed are frequently denied carry in places where a person may have the greatest need for self-defense. These restrictions have their origins in racist, sexist, and classist laws of the post-Civil War era. Licensees must obtain state-mandated training, which the state (if it ever has a mind to do so) may make prohibitively expensive and inconveniently scheduled. Special classes of crimes exist which are applicable only to license holders. And, not to mention, the special problems inherent in using a firearm in justifiable self-defense in many of these states, which I may address in a future post.

Luckily, a few Texans, like Governor Perry, acknowledge these issues and are working to address them.

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