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by Vol Texan
Sun Jun 07, 2015 8:09 pm
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6332

Re: U.S. Law Shield - Gun Law Center: Texas Open Carry is Im

poppo wrote:
Vol Texan wrote:
srothstein wrote:I think he has an interesting point and might be right. I don't believe he is right, but he might be. We need to remember that the general law is that it is illegal to carry a pistol if you are off your own property. That is PC section 46.02. Section 46.15 says that 46.02 does not apply to a CHL. Normally, I would say this means it is legal and you cannot be accused of violating 46.02. But, and this is an important but, I have a vague recollection of a problem once before with the wording of the law. I remember some court case that said there were only defenses (including affirmatuive defenses) or exceptions which must be stated as exceptions to the law. The wording "does not apply" does not fit into either of these categories. I hope Charles can remember this case better than I can and can tell us the actual terms and rulings and what it might mean in this debate.

There are old SCOTUS rulings that say a police officer does not have probable cause if the behavior is at least as likely to be legal as illegal. This is important because it might allow a police officer to argue that the behavior is not as likely to be legal. Remember how small a percentage of the population have CHLs. If the meaning of does not apply turns out to be a defense instead of an exception, it would certainly allow officers to claim that the behavior is illegal and only a defense exists. If it turns out to be an exception, an officer might still be able to claim the odds are in favor of illegal behavior based on the percentages. I think the court case would turn out poorly for the officer, but I can see soem of them, especially with certain DAs backing them up, makign the argument.
The red text is correct. Let's change a few words to see if it changes our view:

We need to remember that the general law is that it is illegal to drive a car if you are off your own property.

There - that also seems to be true. Does that grant the LEO the right to stop us for no reason whatsoever, other than to see if we have a license?

Nah, I think not.
Going with the earlier number of only 3% who have a CHL and probably less that would OC, and if one wanted to make the analogy with a vehicle as you did, it would be more correct of an analogy if the person were driving a vehicle that somehow was significantly different than 99% of the other vehicles on the road. And that person probably would be stopped.

All I am saying is that IMO the vehicle analogy is flawed. A better (but not perfect) analogy would be stopping a person who has farm tags on their truck/trailer with questionable cargo to ask questions to see if it is indeed ag-use.
Sure, I understand your thought process here (regarding population density of drivers vs. CHL holders), so let's take the analogy a bit further:

We need to remember that the general law is that it is illegal to cut hair professionally. You have to have a cosmetology license to do so. (Gosh, there is even a case where a lady is arguing that she should be allowed to do nothing more than braid hair, without the chemicals, etc. associated with a 'typical' stylists' chair). But yet, it would seem a bit of an overreach to have police officers walking door-to-door checking cosmetology licenses for all folks at every SuperCuts in Texas.

Or this one...

We need to remember that the general law is that it is illegal to be an interior deigner if you are off your own property. Sure, you can pick out paints for your own house, but if you do professionally without a license, then you're breaking the law. Do we have LEOs checking on this regularly? Are they stopping by every permitted remodel and making sure the consultants are licensed? I'm sure this is not the case - they have much more important things to do.

The analogy still holds in these cases (yes, I'm presenting 'out there' examples, but I'm trying to bookend this discussion with the crazy ideas). Simply doing an act that requires a license to be done (cutting hair, picking out curtains for someone, etc.) is not sufficient RAS to question the person for their license. Sure, a lot more than 3% of the people drive, but I would wager that the population density of cosmetologists or interior designers is closer to that of CHLs than it is to the population density of drivers.

Sorry if I'm a bit of a rant on this one...I just woke up after a 24-hour plane ride, and I have a bit of energy!
by Vol Texan
Sun Jun 07, 2015 2:59 am
Forum: 2015 Legislative Session
Topic: U.S. Law Shield - Gun Law Center: Texas Open Carry is Immine
Replies: 40
Views: 6332

Re: U.S. Law Shield - Gun Law Center: Texas Open Carry is Im

srothstein wrote:I think he has an interesting point and might be right. I don't believe he is right, but he might be. We need to remember that the general law is that it is illegal to carry a pistol if you are off your own property. That is PC section 46.02. Section 46.15 says that 46.02 does not apply to a CHL. Normally, I would say this means it is legal and you cannot be accused of violating 46.02. But, and this is an important but, I have a vague recollection of a problem once before with the wording of the law. I remember some court case that said there were only defenses (including affirmatuive defenses) or exceptions which must be stated as exceptions to the law. The wording "does not apply" does not fit into either of these categories. I hope Charles can remember this case better than I can and can tell us the actual terms and rulings and what it might mean in this debate.

There are old SCOTUS rulings that say a police officer does not have probable cause if the behavior is at least as likely to be legal as illegal. This is important because it might allow a police officer to argue that the behavior is not as likely to be legal. Remember how small a percentage of the population have CHLs. If the meaning of does not apply turns out to be a defense instead of an exception, it would certainly allow officers to claim that the behavior is illegal and only a defense exists. If it turns out to be an exception, an officer might still be able to claim the odds are in favor of illegal behavior based on the percentages. I think the court case would turn out poorly for the officer, but I can see soem of them, especially with certain DAs backing them up, makign the argument.
The red text is correct. Let's change a few words to see if it changes our view:

We need to remember that the general law is that it is illegal to drive a car if you are off your own property.

There - that also seems to be true. Does that grant the LEO the right to stop us for no reason whatsoever, other than to see if we have a license?

Nah, I think not.

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