RKBA, Texas Constitution, Second Amendment

[anygunanywhere]

I frequent THR a lot and TFL to a lesser degree. One of the individuals on those forums (he might lurk here) whom I respect highly often posts this:

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859

Our current state constitution states:

Article 1 - BILL OF RIGHTS
Section 23 - RIGHT TO KEEP AND BEAR ARMS
Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

I am assuming that what the Texas Supreme Court determined in 1859 is still applicable today.

The vast majority of us who value our RKBA are eagerly awaiting SCOTUS to hear and decide on the DC case hoping they FINALLY establish that the 2A is an individual right.

I am far and away not a legal mind. What was Cockrum vs State of Texas and why is our constitution Article 1 Section 23 so annoying?

What must we do next legislative session to change things so we do not have to piecemeal so much legislation?

Anygun

[frankie_the_yankee]

SCOTUS will probably find in favor of the 2A as an individual right in the DC case.

But the effect of that will be far less than what many people seem to think, especially in a place like TX.

All rights are subject to some degree of regulation, regardless of how the applicable article is worded. You can argue all day that "shall not be infringed" means "no regulations allowed", but the courts and the law will not see it that way.

My prediction is that licensing, limitations on carrying (i.e. "discretionary" CHL's or no CHL's allowed), and even registration will be allowed when SCOTUS finally rules.

We will see some changes in places like NYC, Chicago, and DC (of course). But most places, even NJ and CA, will stay just as they are.

I am not saying that this is MY PREFERENCE (it is not). Just that I think things will shake out that way.

We have pretty good gun laws here in TX. Sure they can use some improvement. And the way we will get that is through the legislature, a little at a time.

[seamusTX]

I don't know the answer to this question. The Texas Constitution changed substantially several times in the 19th century, and a ruling from 1859 may be meaningless today.

- Jim

[frankie_the_yankee]

I don't know the answer to this question. The Texas Constitution changed substantially several times in the 19th century, and a ruling from 1859 may be meaningless today.

- Jim

The general principle is that more recent rulings take precedence over older ones.

The 1859 ruling sounds quite out of date, especially since the ban on carrying handguns was passed in the 1870's (I think) and not overturned even to the present day.

[seamusTX]

There is a later decision upholding the UCW law of 1871, which was substantially similar to the current law: English v. State, 35 Tex. 473, 14 Am. Rep. 374 (1872)

http://www.guncite.com/court/state/35tx473.html#pg478

- Jim