Are Texas CHL laws constitutional?

[HGWC]

HGWC, You seem to be having real problems with your reading comprehension. If you would bother to read down a little further in the little book you got from the DPS, you would find: Section 46.02 does not apply to a person who:

Yes, perhaps my bureaucratic reading skills leave a bit to be desired. Plain English, I do fine on. Thanks for pointing out that section. Knew it was there somewhere, but I couldn't find it yesterday. Now, if you could just point out the section where everyone else, by far the bulk of Texas citizens, is excluded from section 46.02, that would be great. You see in the Heller case, people like you tried to argue that in the same way, the DC ordinances didn't infringe on anyone's constitutional right because you could indeed keep a handgun in your house, assuming you didn't mind all the onerous rules and regulations, and if you asked the criminal politely to wait while you went and got your gun out of the safe, you could in fact bear your arms against him.

tell me please how the DPS is going to get that information without looking at your - what's that phrase again - local official records .

Well, you tell me how they're going to get that information from looking at my local records? For example, how did the DPS determine that I'm not a chemically dependent person? How did they determine that I'm not incapable of making sound decisions with respect to the proper use and storage of a handgun, etc, etc? I'm curious just what local records they have on every one of those eligibility requirements and just exactly what they did to satisfy what you're claiming is a legislative mandate to verify every single one of them before they issue a license? Just like the law says, the DPS is only required to check those things "as needed" and at the "sole discretion of the department," provided that they finish in 60 days, which of course, they're not doing. That not to mention the mandate that they make a good faith effort, and when they collect all the money they're collecting from our licensing fees, and they only budget one person for Harris county, and beyond, for the local background checks, you bet yours is an incredibly lame excuse.

[Fangs]

Granted, I'm jumping into an argument between two people, and English is my second language, but what does "shall not be infringed" mean?

[Purplehood]

Thanks Keith. I had seen that thread. I was hoping in this tread we could discuss the lack of legal action in Texas against these gun control laws. Some of the leading firearm case law history has come out of Texas. I believe we now have the opportunity to challenge these laws under the US constitution. Why have we not already?

Because we let the state of Florida do it first, now.

[HGWC]

I have locked horns with HGWC on a number of issues, but I have to agree with him on one very narrow issue about "local" background checks. They are not mandatory and are left to the sole discretion of the DPS. Every bit of the criminal history check is done on DPS computers in Austin and it consists of an NCIC, TCIC and NICS database query. In fact, "local" checks are not done on any renewals! DPS reluctantly admitted this in a meeting in December. So if that part of the background check was so critical to their mission,then why is it not done on any renewal? I know the real reason, but I'm not about to put it on an open forum.

I'd be interested to know. Sure we've locked horns Charles, but wouldn't you agree that these laws have never been tested against the US constitution? Before the 14th amendment, the states were excused from the Bill of Rights. After the 14th amendment, well, we slipped and we slided, weaseling our way into ignoring the 14th as best we could. Now, it's come time for the 2nd amendment. Surely we can agree that Texas laws are at least in some ways just as offensive as other state laws around the nation.

HGWC, as for your contentions about a Texas lawsuit, they are based upon the erroneous belief that Heller recognized a right to carry a firearm outside one's residence. It did no such thing, regardless how often or loudly OpenCarry.org claims otherwise. The dicta in Heller on this issue is very promising, but it is still dicta and we have to be very careful on the case that is chosen to take to the U.S. Supreme Court.

I don't have that belief Charles, and my contentions aren't based upon Heller setting any standard for where and how the 2nd amendment should be applied. I contend that Heller defined the right as an fundamental individual right including for self defense. Just like in Nordyke, it only takes one case to win incorporation and to have a Texas law challenged against the US constitution for the first time. Surely we could agree that there is at least one Texas law or administrative policy that is unconstitutional under the US constitution? One law, one federal case, and just like in Nordyke, we get a ruling on at least incorporation in the 5th circuit court. Would you agree that incorporation against Texas would at least be a political gain in the legislature?

As for licensing being unconstitutional, you are absolutely wrong. The Heller Court didn't reach the issue of licensing because, during oral arguments, Gura conceded that licensing was fine. This was even mentioned in the holding (as opposed to dicta) of the Court. But, just as the dicta on the carrying issue is favorable, the dicta on licensing is unfavorable. The Court specifically noted that a license requirement for concealed carry has been upheld by many state supreme courts. Open-carry supporters try to read more into this statement that is warranted when they vigorously argue that this means requiring a license for open-carry would be unconstitutional. There is no such implication in Heller, not even in dicta.

Heller didn't rule on the standard for scrutiny on the 2nd as applied to individual self defense other than to say that DC's specific ordinances wouldn't survive any standard of scrutiny. Would the onerous licensing and administrative procedures that are mandated in Texas survive? Will they survive in DC as a matter of fact? We certainly couldn't say one way or another based upon Heller. We may never know unless a federal case is actually filed. Didn't the litigants in Heller do just that immediately after Heller? Would the DPS policy of delaying licensing for beyond six months survive? I doubt it.

Surely there's some room to agree that some important aspects of Texas law will be found unconstitutional when finally compared to the federal 2nd and 14th amendments. I believe that there are aspects of Texas law that challenging them against the US constitution would benefit both Texas and the nation. Texas has lead the nation on many aspects of federal case law on gun rights, and I can't imagine that we're going to sit out this new battle ground of 2nd amendment incorporation against the states.

[HGWC]

They're not going to have any choice. Read the Nordyke case.

The one where the 9th circuit court of appeals ruled it was constitutional to ban guns on public property, including unloaded guns.

Ah, well, that's another interesting topic altogether. They seemed to rule that Heller set a standard that if keeping guns weren't completely prohibited the state law should survive. That's pretty faulty logic if you ask me, not to mention the outright silliness of it when you look at it as you've described above.

[HGWC]

Granted, I'm jumping into an argument between two people, and English is my second language, but what does "shall not be infringed" mean?

If we look at the Nordyke decision, apparently all it means is shall not be prohibited.

[HGWC]

BTW, didn't it take a constitutional amendment in Texas in 1868 to allow these laws be put on the books in the first place? I think it was recognized then that these kind of laws couldn't be passed with a constitution that says keep and bear shall not be infringed. They amended the constitution, and look what happened. It had a devastating effect on all liberties and only ended with the armed removal of a despot reconstructionist governor from the state capital in 1873. From that lesson, they amended the constitution again in 1873 to restrict the legislature only to regulate wearing not keep and bear. It was intended to repeal the 1871 gun ban. Now, we still have the gun ban on the books, and the regulation of wearing with a view to prevent crime has become virtually synonymous with the specific wording they amended the constitution to delete. These laws cannot withstand a test against shall not be infringed.

[bdickens]

I suppose that the FCC infringes on the First Amendment by requiring you to have a license to broadcast radio or TV signals.

You might want to brush up on your reading skills and take another look at Heller, where the SCOTUS ruled that outright bans on an entire class of firearms (like the one in DC) were Unconstitutional, but left the door open for licensing. The argument can be made that licensing schemes like Hawaii's, where you can theoretically get a carry license but they've never issued one or like New York's where you can theoretically get a carry license but they only issue one if you are rich and/or politically connected are Unconstitutional, but that shall-issue licensing schemes are Constitutional because they have objective, reasonable criteria and everyone who meets them is issued a license.

Maybe I am just an exceptional genius, but the language in the applicable statutes seems quite plain to me. There is a whole list of people who can legally carry firearms.

May I present for your reading pleasure:

PC W6.02. UNLAWFUL CARRYING WEAPONS. (a) A person
commits an offense if the person intentionally, knowingly, or recklessly
carries on or about his or her person a handgun, illegal knife, or club if
the person is not:
(1) on the person's own premises or premises under the person's
control; or
(2) inside of or directly en route to a motor vehicle that is owned
by the person or under the person's control.
(a-I) A person commits an offense if the person intentionally, knowingly,
or recklessly carries on or about his or her person a handgun in a
motor vehicle that is owned by the person or under the person's
control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor
that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section
71 .Of.
(a2) For purposes of this section, "premises includes real property
and a recreational vehicle that is being used as living quarters, regardless
of whether that use is temporary or permanent. In this subsection,
"recreational vehicle means a motor vehicle primarily designed as
temporary living quarters or a vehicle that contains temporary living
quarters and is designed to be towed by a motor vehicle. The term
includes a travel trailer, camping trailer, truck camper, motor home,
and horse trailer with living quarters.
(b) Except as provided by Subsection (c), an offense under this
section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the
offense is committed on any premises licensed or issued a permit by
this state for the sale of alcoholic beverages.

The words highlighted in bold are what allow the majority of Texans to legally carry handguns around with no license whatsoever.


But wait! there's more!

GC 5411.177. ISSUANCE OR DENIAL OF UCENSE. (a) The
department shall issue a license to cany a concealed handgun to an
applicant if the applicant meets all the eligibility requirements and
submits all the application materials. The department may issue a
license to cany handguns only of the categories indicated on the applicant's
certificate of proficiency issued under Section 411.189. The
department shall administer the licensing procedures in good faith so
that any applicant who meets all the eligibility requirements and
submits all the application materials shall receive a license. The
department may not deny an application on the basis of a capricious or
arbitrary decision by the department.
(b) The department shall, not later than the 60th day after the date
of the receipt by the director's designee of the completed application
materials:(1) issue the license;
(2) notify the applicant in writing that the application was denied:
(A) on the grounds that the applicant failed to qualify under the
criteria listed in Section 411.172;
(B) based on the affidavit of the director's designee submitted
to the department under Section 411.176(b); or
(C) based on the affidavit of the qualified handgun instructor
submitted to the department under Section 411.189(c); or
(3) notify the applicant in writing that the department is unable to
make a determination regarding the issuance or denial of a license to
the applicant within the 60-day period prescribed by this subsection
and include in that notification an explanation of the reason for the
inability and an estimation of the amount of time the department will
need to make the determination.(c) Failure of the department to issue or deny a license for a period
of more than 30 days after the department is required to act under
Subsection (b) constitutes denial.
(d) A license issued under this subchapter is effective from the date
of issuance.

Right there in the law, the DPS can go past 60 days if they have to.

But, you know, this is all right here on the web at http://www.txdps.state.tx.us/ftp/forms/ls-16.pdf" onclick="window.open(this.href);return false; if you want to read the whole thing. And I would suggest that you read the whole thing and not go proof-texting through the laws dragging up bits and peices and ripping them out of their context to support whatever agenda it is you are pushing.

[nitrogen]

(c) Failure of the department to issue or deny a license for a period
of more than 30 days after the department is required to act under
Subsection (b) constitutes denial.

Only gives 'em an extra 30 days tho, doesn't it?
Anything past 90 days is an implicit denial.

[bdickens]

Unless they send you a letter stating the reason for the delay.

When I went past 90 days, I fired off a letter to some of my employees in Austin and lo and behold guess what showed up in the mail a week later.

[HGWC]

I suppose that the FCC infringes on the First Amendment by requiring you to have a license to broadcast radio or TV signals.

People on Internet forums are notoriously bad at making analogies. The FCC doesn't regulate free speech of ordinary citizens as they go about their ordinary days in public. If you want to make a better analogy, ask yourself if it would be constitutional for the legislature to mandate training, fees, onerous administrative policies, etc before anyone would be allowed a license to preach certain religions. Other religions though are fine to preach without a license.

take another look at Heller, where the SCOTUS ruled that outright bans on an entire class of firearms (like the one in DC) were Unconstitutional, but left the door open for licensing. The argument can be made that licensing schemes like Hawaii's, where you can theoretically get a carry license but they've never issued one or like New York's where you can theoretically get a carry license but they only issue one if you are rich and/or politically connected are Unconstitutional, but that shall-issue licensing schemes are Constitutional because they have objective, reasonable criteria and everyone who meets them is issued a license.

In Heller, SCOTUS didn't rule that all forms of licensing would be considered constitutional, any more than they ruled that restrictions are constitutional just short of a total ban like the 9th circuit tried to argue. In fact they didn't even rule whether or not all of DC's licensing laws were constitutional, only that the total result of all the laws relating to Heller registering and keeping a handgun in his home were unconstitutional under any standard of scrutiny. You do know they immediately filed another case questioning those specific onerous licensing laws immediately after DC registered his handgun? You can make the argument that one form of state licensing is or is not constitutional, but that's all you can do. You sure can't support that argument based upon what Heller said about licensing. We won't ever know what will or won't be considered constitutional until federal cases are filed. In the mean time, I will continue to argue that Texas licensing laws are unconstitutional.

Maybe I am just an exceptional genius, but the language in the applicable statutes seems quite plain to me. There is a whole list of people who can legally carry firearms.

The words highlighted in bold are what allow the majority of Texans to legally carry handguns around with no license whatsoever.

That doesn't address the ways in which Texas laws do "infringe" on our 2nd amendment rights.

Right there in the law, the DPS can go past 60 days if they have to.

But, you know, this is all right here on the web at http://www.txdps.state.tx.us/ftp/forms/ls-16.pdf" onclick="window.open(this.href);return false; if you want to read the whole thing. And I would suggest that you read the whole thing and not go proof-texting through the laws dragging up bits and peices and ripping them out of their context to support whatever agenda it is you are pushing.

I've read both 411.176 and 411.177 many many times. The wording is vague and contradictory, and everyone knows it. In 176, it says the local background is entirely discretionary except that it shall not exceed 60 days. In 177, it says, sure go ahead and take as long as you want. Just send a meaningless letter with some lame lying excuse with an unbounded time frame for issuing the license. The point is that there is no way this, combined with a whole range of other onerous requirements and policy, are going to be found constitutional.

Remember, Texas will no longer be allowed to duck behind the "but" clause: "but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. " That's about to be nullified from the state constitution with incorporation by the fifth circuit or SCOTUS. These laws for the first time are going to have to stand up to a guarantee of the individual right for self defense that "shall not be infringed." That will be completely ground breaking certainly at the state level but also at the federal level as well.

[jimlongley]

People on Internet forums are notoriously bad at making analogies. The FCC doesn't regulate free speech of ordinary citizens as they go about their ordinary days in public.

Actually, as the holder of four different FCC licenses and conversant with all the regulations that pertain, the FCC does regulate free speech of both ordinary citizens and of licensed users. The analogy is apt and stands well alone.

[casingpoint]

Incongurous how Gov. Perry, a gun advocate, wants the Feds to bug off states rights under the Tenth Amendment, just as the gun rights thing gets settled by SCOTUS. I suppose Perry would prefer the Feds just guarantee the right to keep and bear, and the states can set the conditions. That's some real Aggie think.

[Greybeard]

Chas Quote: "A bill that would have streamlined DPS procedures and would have allowed them to process CHL applications in a matter of days was presented to DPS and others. It was rejected and replaced with . . . well I'll have to tell that story after the session is over. "

Now, THAT is one I'd like to hear. I'm assuming far bigger fish to fry - for now.

[bdickens]

People on the internet are also notorious for having bad reading comprehension problems.