Are Texas CHL laws constitutional?

[jimlongley]

TX's CHL law is not as good a candidate for incorporation as IL, or NY for that matter.

I don't see why Texas is any worse candidate for an incorporation case than any other state. . . . I still don't see why that issue would be different for any state regardless of the specific law in question.

It's a matter of degree. TX law is not as restrictive as, say, NY, which is a better candidate for a first round of incorporation in front of SCOTUS, like Heller was a better choice than Seegers v Ashcroft, but only after Parker, St. Lawrence, et al, were divested.

NY has a virtual ban on handgun possession, not quite as bad as DC, some people get licenses, but not very many, especially in NY City. TX has not only a 14 year history of issuing CHLs but recently enacted unlicensed car carry, and open carry of long guns, while not really common and possibly exciting to the uninformed.

IL requires a FOID for any firearm purchase, which probably wouldn't rise to a level that we need for incorporation, but does not allow any form of (loaded) carry except for very special cases, and even unloaded carry is questionable for the average law abiding citizen, while Chicago and other municipalities have literal bans on handgun possession (although a couple have rescinded their bans in light of Heller.)

The problem as I see it, is that, like Heller, the court is not going to give us a sweeping unquestionable victory, the decision is almost sure to be narrowly crafted just as Heller is, leading to more cases in the future. Getting a TX incorporation all the way to SCOTUS and having a positive result, while it may be good for us in TX, is likely to be just an increment, and may not even be applicable to other states except those which have laws which closely model TXs. Getting a NY or IL incorporation has the potential to be much broader in scope rather than making it necessary to find another, and yet another case, as we are seeing in Heller.

[HGWC]

The problem as I see it, is that, like Heller, the court is not going to give us a sweeping unquestionable victory, the decision is almost sure to be narrowly crafted just as Heller is, leading to more cases in the future. Getting a TX incorporation all the way to SCOTUS and having a positive result, while it may be good for us in TX, is likely to be just an increment, and may not even be applicable to other states except those which have laws which closely model TXs. Getting a NY or IL incorporation has the potential to be much broader in scope rather than making it necessary to find another, and yet another case, as we are seeing in Heller.

I think you're still mixing the scrutiny/constitutionality issue with incorporation. Incorporation in and of itself, if only applicable within the 5th circuit, would be a sweeping and unquestionable victory both for Texas and the nation. The incorporation issue itself has to be considered first and independently of the constitutionality issue, just like standing has to be decided before the merits of a case where standing is at issue.

Even if the most effective case today is perhaps a complete ban of some kind, we can't accept a standard where anything short of a total prohibition is fair game for either the states or the federal government. If you read the Nordyke case, they'd like us to believe that the Heller case re-wrote the 2nd amendment to say: "A well defended home, being necessary to the security of the family, the right of the people to keep and bear Arms, shall not be prohibited." A lot of people seem to agree with that mentality. We can't be satisfied with that.

I don't see any rhyme or reason in prioritizing issues in other states over violation of our rights in this state. There won't ever be a one size fits all ruling where it's entirely advantageous to pick the most obvious case. All of the specific cases of unconstitutional acts by the state government need to be dealt with, one by one. I had a neighbor tell me the other day he'd prefer to have a protective dog in the backyard to defend against an armed home invader breaking in the front door rather than a gun. Whatever stigma he sees attached to owning a gun, I wonder how that would be if there hadn't been bans on public possession of handguns for the last 140 years? If there weren't currently dozens of onerous requirements mandated for CHL, how many more citizens would choose to become armed, and assuming that thousands and thousands more would, what impact would that have on social perception of gun ownership and to the safety of our society in general both now and in the future?

I don't accept that Texas laws are constitutional. I don't even see anyone here arguing seriously that they are. Our forefathers even recognized that the Texas constitution had to be amended to allow for the kind of regulation we still live under today. Even though Texas laws finally accommodate a small vocal minority, the unconstitutionality of these laws has a much bigger impact on our overall society, and that impacts me and my right to live in a free republic personally. I don't accept that the impact to our society, and to me personally, is substantially less than in other states. I'm still not buying that we in Texas should sit back and wait on California, Chicago, and New York to lead the way fighting gun control in the courts. Other than a lack of money, leadership, and determination, it just doesn't make a lot of sense to me.

[jimlongley]

The problem as I see it, is that, like Heller, the court is not going to give us a sweeping unquestionable victory, the decision is almost sure to be narrowly crafted just as Heller is, leading to more cases in the future. Getting a TX incorporation all the way to SCOTUS and having a positive result, while it may be good for us in TX, is likely to be just an increment, and may not even be applicable to other states except those which have laws which closely model TXs. Getting a NY or IL incorporation has the potential to be much broader in scope rather than making it necessary to find another, and yet another case, as we are seeing in Heller.

I think you're still mixing the scrutiny/constitutionality issue with incorporation. Incorporation in and of itself, if only applicable within the 5th circuit, would be a sweeping and unquestionable victory both for Texas and the nation. The incorporation issue itself has to be considered first and independently of the constitutionality issue, just like standing has to be decided before the merits of a case where standing is at issue.

In that case, we already have the "sweeping and unquestionable victory" through the 9th, and there is no need for further incorporation cases. I think you're missing my point even while you affirm it below.

Even if the most effective case today is perhaps a complete ban of some kind, we can't accept a standard where anything short of a total prohibition is fair game for either the states or the federal government. If you read the Nordyke case, they'd like us to believe that the Heller case re-wrote the 2nd amendment to say: "A well defended home, being necessary to the security of the family, the right of the people to keep and bear Arms, shall not be prohibited." A lot of people seem to agree with that mentality. We can't be satisfied with that.

Which is the point I am trying to make. That narrowly crafted decisions, as in Heller and Nordyke, do not really serve to advance the "understanding" of the law as much as a sweeping decision would, and TX is not going to generate a sweeping decision. TX CHL laws might even be found to be constitutional even if incorporated under Heller because licensing is explicitly allowed under Heller.

I don't see any rhyme or reason in prioritizing issues in other states over violation of our rights in this state. There won't ever be a one size fits all ruling where it's entirely advantageous to pick the most obvious case. All of the specific cases of unconstitutional acts by the state government need to be dealt with, one by one.

Which is also part of my point. I guess I am more of a generalist in my leanings than you, but I see the incorporation question as not confined to the borders of TX, but a broader issue that covers all of the states, counties, and municipalities. I will have to admit that psrt of my goal is to see VT style carry be the law of the land, the entire land, and that is a long way away, but I still think that TX CHL laws would be viewed by SCOTUS and constitutionall benign, even if slightly infringing, and I do not think that any 5th decision, even if crafted along the same lines as Nordyke, ie "We hereby recognize incorporation, but CHL laws are still constitutional and open carry is still against the law." would stand on its own, but would inevitably wend its way to SCOTUS and that SCOTUS could very well affirm exactly that.

That said, I would love it if the 5th came out for sweeping incorporation, making TX CHL and open carry laws unconstitutional and VT style carry the law here, but I see no reason to expect that outcome.

I had a neighbor tell me the other day he'd prefer to have a protective dog in the backyard to defend against an armed home invader breaking in the front door rather than a gun. Whatever stigma he sees attached to owning a gun, I wonder how that would be if there hadn't been bans on public possession of handguns for the last 140 years? If there weren't currently dozens of onerous requirements mandated for CHL, how many more citizens would choose to become armed, and assuming that thousands and thousands more would, what impact would that have on social perception of gun ownership and to the safety of our society in general both now and in the future?

My CHL requalification class yesterday was interesting in that respect. With more and more people becoming licensed it appears that your neighbor is headed toward becoming a minority in his way of thinking.

Having been forced to grow up in upstate NY, and having lived in NY, RI, IL, and TX, as well as spending a lot of time in VA, LA, VT, NH, MA, and a couple of others, I can assure you that what you call a stigma attached to owning a gun is far more widespread than just our little ol TX. It's kind of ironic that VT, the home of Ben and Jerry's and all sorts of tie dye and hippiness, has the "liberal" carry law that it has, but if you spend much time there you will come to realize that most of the population has absolutely no idea that their law is the way it is, they attach as much stigma to gun ownership as any Texan I have ever met, except for maybe Staten Island transplants, and they don't have the 140 years of history you cite.

Gun ownership demonization has been a national problem since before the media latched on to the fact that Oswald bought his rifle mail order, it isn't even a regional problem, much less statewide or local, it has even expanded to global. Yes, there are those who still equate Texas with "lawless frontier" and the "Wild West" (which was a show not a real place) but they are all as guilty of discrimination and profiling as any racist, and the problem is getting them to recognize that.

I don't accept that Texas laws are constitutional. I don't even see anyone here arguing seriously that they are.

N or do I, but it looks to me as if you are thinking locally on this issue, in which case I guess we have no real arguement, because I see the issue as being national and even international in scope. So what if TX gets incorporated by the 5th and gets VT style carry, if we then turn around and lose it all because a NY case makes it to SCOTUS and bambam has had a chance to change the composition of the court, and SCOTUS not only denies incorporation, but finds NY's much more draconian laws not only constitutional but even opines, in dicta, that it should be the model for the nation. I think a NY win for us, first, gives us a much better prospect of future decisions.

Our forefathers even recognized that the Texas constitution had to be amended to allow for the kind of regulation we still live under today. Even though Texas laws finally accommodate a small vocal minority, the unconstitutionality of these laws has a much bigger impact on our overall society, and that impacts me and my right to live in a free republic personally. I don't accept that the impact to our society, and to me personally, is substantially less than in other states. I'm still not buying that we in Texas should sit back and wait on California, Chicago, and New York to lead the way fighting gun control in the courts. Other than a lack of money, leadership, and determination, it just doesn't make a lot of sense to me.

I never said we should sit back and wait on anything, nor did I even imply it, but I can tell you have not lived in other states, or at least not as a gun owner, because you would recognize how nice we have it, even with the uncontitutional laws we live under. We need to attack the problem on all fronts, relentlessly.

But you still haven't answered one of my early questions: Are you, "willing to bet my house" volunteering to step up and be the test case that you say we need?

[Charles L. Cotton]

If I could go to a DPS office, file a simple application for CHL like you do when you buy a gun, pay a nominal processing fee, and have them do a five minute computerized background check, that by itself might survive a constitutional challenge, especially in all the other states where open carry is unrestricted.

That's your standard, not something based upon any U.S. Supreme Court case to date. The dicta in Heller certainly makes it likely that licensing will be constitutional. Even the holding in Heller said that Mr. Heller wins if he is not prohibited from exercising his Second Amendment rights; i.e. he's not a felon, etc. So there is absolutely no reason to expect the Supreme Court to accept your argument that people should be able to talk into DPS HQ, pay $5 and leave with a license in a few minutes.

It's a process that allows the DPS to indefinitely delay and implicitly deny applications for unspecified reasons. In addition, the official reasons for denial I don't think will hold up either.

This is a bogus argument and it doesn't get any better by repeatedly asserting it. There are statutory deadlines for processing an application. The Legislature included a safeguard in the Code; i.e. any delay beyond 30 days constitutes a denial. This opens up certain rights that any applicant can use. Also, "unspecified reasons" can be used to deny a license.

Can a state government deny a fundamental right to a citizen just because they're in default on a student loan? Once the 2nd is incorporated, I doubt it.

I agree. I don't think this will pass constitutional muster, either the Texas Constitution or the U.S. Constitution.

Chas.

[Purplehood]

I am going to embarrass myself here and reveal the depths of my ignorance:

I have read this entire thread and still have no clear concept of what "Incorporating" and the 2nd Amendment mean in the most basic of terms. Is there any layman explanation of what the issue here is?

[Charles L. Cotton]

I am going to embarrass myself here and reveal the depths of my ignorance:

I have read this entire thread and still have no clear concept of what "Incorporating" and the 2nd Amendment mean in the most basic of terms. Is there any layman explanation of what the issue here is?

The U.S. Constitution protects citizens only from actions of the federal government, not state or local governments. There are exceptions to this general rule. Certain portions of the U.S. Constitution also apply to state government action, if they have been applied to the states -- this is what is referred to as "incorporation."

Chas.

[Purplehood]

Are you saying that State and Local governments are enjoined through Incorporation to respect the 2nd Amendment through these Circuit Court rulings? (Sorry to be so dense, but this is simply eluding me...)

[HGWC]

In that case, we already have the "sweeping and unquestionable victory" through the 9th, and there is no need for further incorporation cases. I think you're missing my point even while you affirm it below.

It's not just the 9th, but also the case in the 2nd circuit. Now, there are two conflicting cases, and more importantly, one already heading to the SC. So, yes, I've learned in this thread that there's not much point in filing a case just for the incorporation issue in the 5th circuit.

Which is the point I am trying to make. That narrowly crafted decisions, as in Heller and Nordyke, do not really serve to advance the "understanding" of the law as much as a sweeping decision would, and TX is not going to generate a sweeping decision. TX CHL laws might even be found to be constitutional even if incorporated under Heller because licensing is explicitly allowed under Heller.

It's just not true that licensing is allowed under Heller. They drew the same kind of conclusion in Nordyke that Heller allows any infringement of the 2nd amendment just short of a total prohibition in the home. The SC hinted that some form of licensing might survive, and they ruled that a total ban in the home isn't constitutional. Heller said nothing conclusive on the standard for scrutiny. There's no reason to believe based upon Heller that TX CHL laws would survive a constitutionality test.

I still think that TX CHL laws would be viewed by SCOTUS and constitutionall benign, even if slightly infringing, and I do not think that any 5th decision, even if crafted along the same lines as Nordyke, ie "We hereby recognize incorporation, but CHL laws are still constitutional and open carry is still against the law." would stand on its own, but would inevitably wend its way to SCOTUS and that SCOTUS could very well affirm exactly that.

I disagree with you. What other fundamental right can you lose for being in default on a student loan? How many other fundamental rights can be indefinitely delayed and implicitly denied for unspecified reasons by a police organization? My father in law can open carry in Arizona. When he visits Texas, he cannot defend himself anywhere in public (outside of his car) with the most common weapon for self defense. I find it difficult to believe that the SC or the 5th circuit would find these kinds of issues constitutionally benign. We'll never know though until Texas laws are challenged in federal court. Either that or until some other set of laws and policies that are more onerous than Texas laws are found constitutional in a case that has precedence in Texas.

That said, I would love it if the 5th came out for sweeping incorporation, making TX CHL and open carry laws unconstitutional and VT style carry the law here, but I see no reason to expect that outcome.

Any sort of victory over state infringement will be a sweeping victory. Any victory regarding licensing, eligibility, delays, place and location, etc etc would be a sweeping victory for all states. Even if it's only a minor victory that applies only to Texas laws, and only to a very small minority of Texans, for example denial for student loans, that's still victory enough. I still don't see the rationale for tolerating what you consider "benign" constitutional infringements in Texas.

My CHL requalification class yesterday was interesting in that respect. With more and more people becoming licensed it appears that your neighbor is headed toward becoming a minority in his way of thinking.

My wife and many many other people don't carry a concealed weapon in public because they will likely never be willing to comply with the onerous set of requirements that they have to meet to get a license. We have to tolerate that set of onerous requirements, because otherwise citizens would feel free to exercise their constitutional rights, and we have not been able to wrangle that freedom back from the state legislature for 140 years. With that freedom, the response would be orders of magnitude greater than what we have now, and I don't believe that is just a benign impact to our society.

I never said we should sit back and wait on anything, nor did I even imply it, but I can tell you have not lived in other states, or at least not as a gun owner, because you would recognize how nice we have it, even with the uncontitutional laws we live under. We need to attack the problem on all fronts, relentlessly.

So then what are we waiting on? I just don't see the logic of saying well, Texas laws are less stringent than New York, therefore, it's not worthwhile to challenge unconstitutional laws in Texas. It just doesn't make any sense to me. If there were other national cases on licensing, for example, and they were better cases that also addressed issues applicable to Texas licensing laws, that would make sense, but I'm not seeing any kind of national strategy that precludes challenging Texas laws.

But you still haven't answered one of my early questions: Are you, "willing to bet my house" volunteering to step up and be the test case that you say we need?

Is that what it takes? In that I already have a CHL, and my wife is unwilling to go through even the hassle for filing for one, yes, literally betting my house isn't likely. I really would like to understand how individuals in other states have been able to afford all sorts of legal action on individual constitutional rights. If I could afford it, I would definitely be glad to lead the way. On the other hand, I'm looking to offer financial support, and it's disappointing that I can't offer that in support of challenges to the laws that directly affect me in my state.

[jimlongley]

Are you saying that State and Local governments are enjoined through Incorporation to respect the 2nd Amendment through these Circuit Court rulings? (Sorry to be so dense, but this is simply eluding me...)

A complicated subject, to be sure.

Over simplifying it, and of course subject to correction by a legislative expert, like the estimable Mr. Cotton.

Circuit Court rulings really only have standing in their own circuits, so the 9th can, and does, have different rules than the 5th. The only way we get incorporation for ALL of the states is if it gets appealed all the way to SCOTUS and they decide to hear it and they decide to grant incorporation.

As the 9th pointed out in Nordyke, "Direct" incorporation does not apply because "Barron" has never been overturned, Barron, through Cruikshank, and Presser make the Second Amendment a limitation on Congress and the Federal government and not the states.

The 9th also says that the Privileges and Immunities clause does not apply because that clause applies only to rights that derive from being citizens and the Second protects a pre-existing right that is protected, but does not derive from being a citizen.

The 9th incorporated under the third "Due Process" clause, which says that rights cannot be removed without due process.

Remember that IANAL and although I have had some legislative experience, I am not currently a legislator or judge and my interpretation is just that, a synopsis which I feel makes it easier for me to understand among others.

With incorporation under Due Process as a non-binding precedent it is entirely possible that the 5th could look at Texas' CHL laws and say that it looks to them as if due process is being followed, even if they do incorporate. And in the unlikely event that such a ruling is granted certerior, er cetoriar, er, whatever it is that SCOTUS does when they deign to hear an appeal, they are likely to agree that TX CHL law is NOT a violation of due process.

[HGWC]

That's your standard, not something based upon any U.S. Supreme Court case to date. The dicta in Heller certainly makes it likely that licensing will be constitutional. Even the holding in Heller said that Mr. Heller wins if he is not prohibited from exercising his Second Amendment rights; i.e. he's not a felon, etc. So there is absolutely no reason to expect the Supreme Court to accept your argument that people should be able to talk into DPS HQ, pay $5 and leave with a license in a few minutes.

It's not my standard. It's just an example of a licensing system that might survive. Just as you've said, there's no reason to believe that the totality of onerous requirements in Texas for CHL will survive. The SC hinted that some form of licensing will survive. That's all. I don't think there's any way the totality of Texas laws will survive.

This is a bogus argument and it doesn't get any better by repeatedly asserting it. There are statutory deadlines for processing an application. The Legislature included a safeguard in the Code; i.e. any delay beyond 30 days constitutes a denial. This opens up certain rights that any applicant can use. Also, "unspecified reasons" can be used to deny a license.

The DPS policies certainly allow for delays well beyond 30, 60, 90, even 200+ days. That policy is unconstitutional regardless of what state law says. That they're doing it is not a bogus complaint, and I'm certainly not the only one complaining about it. If this were free speech or freedom of religion, we wouldn't be waiting on the next legislative session to lobby politically to address it. There would be a federal case filed in the blink of an eye.

I agree. I don't think this will pass constitutional muster, either the Texas Constitution or the U.S. Constitution.

Thanks. At least one person agrees that one aspect of Texas law is unconstitutional.

[HGWC]

With incorporation under Due Process as a non-binding precedent it is entirely possible that the 5th could look at Texas' CHL laws and say that it looks to them as if due process is being followed, even if they do incorporate. And in the unlikely event that such a ruling is granted certerior, er cetoriar, er, whatever it is that SCOTUS does when they deign to hear an appeal, they are likely to agree that TX CHL law is NOT a violation of due process.

We have very little basis for assuming what will or will not likely be ruled upon by future courts on state violation of the 2nd amendment. These types of laws have stood up to scrutiny based upon case law that shielded state law from the 2nd amendment and also case law on the the collective rights/militia interpretation. Challenges to Texas gun laws have been a losing battle from long ago on these cases. It's a new ball game now though with incorporation and the individual right to self defense interpretation.

[Charles L. Cotton]

That's your standard, not something based upon any U.S. Supreme Court case to date. The dicta in Heller certainly makes it likely that licensing will be constitutional. Even the holding in Heller said that Mr. Heller wins if he is not prohibited from exercising his Second Amendment rights; i.e. he's not a felon, etc. So there is absolutely no reason to expect the Supreme Court to accept your argument that people should be able to talk into DPS HQ, pay $5 and leave with a license in a few minutes.

Just as you've said, there's no reason to believe that the totality of onerous requirements in Texas for CHL will survive.

I didn't say that; don't misquote me.

The SC hinted that some form of licensing will survive. That's all. I don't think there's any way the totality of Texas laws will survive.

Now you add a subtle but significant change to your argument by using the qualifier "totality." I believe every aspect of the Texas CHL statute will survive constitutional scrutiny, except for the "money" provisions of school loans, child support, and taxes/fees.

This is a bogus argument and it doesn't get any better by repeatedly asserting it. There are statutory deadlines for processing an application. The Legislature included a safeguard in the Code; i.e. any delay beyond 30 days constitutes a denial. This opens up certain rights that any applicant can use. Also, "unspecified reasons" can be used to deny a license.

The DPS policies certainly allow for delays well beyond 30, 60, 90, even 200+ days.

Show me that in the Rules DPS has promulgated.

That they're doing it is not a bogus complaint, and I'm certainly not the only one complaining about it.

Now you are changing your statement. This is the comment to which I was responding; "It's a process that allows the DPS to indefinitely delay and implicitly deny applications for unspecified reasons. In addition, the official reasons for denial I don't think will hold up either." Show us the evidence that it is the DPS policy that they are allowed to "indefinitely delay" an application, or that they can "deny applications for unspecified reasons." You can't do it, so you change your argument.

Also, can you give us any examples of the DPS denying a CHL application for any reason other than not meeting the statutorily established eligibility criteria?

I don't like the delays and candidly I'm more than a little upset at DPS antics this legislative session. But overstating the problem and making unfounded constitutional arguments does not help fix the problem.

Chas.

[jimlongley]

So, yes, I've learned in this thread that there's not much point in filing a case just for the incorporation issue in the 5th circuit.

Thank you.

It's just not true that licensing is allowed under Heller. They drew the same kind of conclusion in Nordyke that Heller allows any infringement of the 2nd amendment just short of a total prohibition in the home. The SC hinted that some form of licensing might survive, and they ruled that a total ban in the home isn't constitutional. Heller said nothing conclusive on the standard for scrutiny. There's no reason to believe based upon Heller that TX CHL laws would survive a constitutionality test.

And I believe there is every reason to expect that, under due process, that SCOTUS and even the 5th, would let TX laws stand as not violating due process.

I still think that TX CHL laws would be viewed by SCOTUS and constitutionall benign, even if slightly infringing, and I do not think that any 5th decision, even if crafted along the same lines as Nordyke, ie "We hereby recognize incorporation, but CHL laws are still constitutional and open carry is still against the law." would stand on its own, but would inevitably wend its way to SCOTUS and that SCOTUS could very well affirm exactly that.

I disagree with you. What other fundamental right can you lose for being in default on a student loan? How many other fundamental rights can be indefinitely delayed and implicitly denied for unspecified reasons by a police organization? My father in law can open carry in Arizona. When he visits Texas, he cannot defend himself anywhere in public (outside of his car) with the most common weapon for self defense. I find it difficult to believe that the SC or the 5th circuit would find these kinds of issues constitutionally benign. We'll never know though until Texas laws are challenged in federal court. Either that or until some other set of laws and policies that are more onerous than Texas laws are found constitutional in a case that has precedence in Texas.

You need to look into several other states' laws on a variety of subjects to get an answer for that first question, and I can recall when NY State still had "Chattel Laws" wherin when a woman married a man, she literally became his property, and could not file for a divorce (essentially) without his permission particularly if she was under the age of 21, there was a right lost just for being a young female. It wasn't all that long ago when some states did not recognize others' driver's licenses, until the right cases came along. I don't believe that TX CHL laws are the right case, they are relatively benign when compared to other states, and I don't believe it's much of a stretch of the imagination to envision SCOTUS saying that TX CHL laws are not that tough, and if you're in default on a student loan, you obviously have problems following simple rules, so you probably shouldn't have a CHL anyway, and after all you can still own a gun and carry it in your car. They might eve go so far as to opine that carrying concealed is not a right, but a privilege, and endanger VT and AK gun owners' rights.

That said, I would love it if the 5th came out for sweeping incorporation, making TX CHL and open carry laws unconstitutional and VT style carry the law here, but I see no reason to expect that outcome.

Any sort of victory over state infringement will be a sweeping victory. Any victory regarding licensing, eligibility, delays, place and location, etc etc would be a sweeping victory for all states. Even if it's only a minor victory that applies only to Texas laws, and only to a very small minority of Texans, for example denial for student loans, that's still victory enough. I still don't see the rationale for tolerating what you consider "benign" constitutional infringements in Texas.

I, personally, don't see it as benign, that's really either putting words in my mouth or an indication that you have not followed what I said carefully. Yes, getting a change in the law as it stands would be a good thing, but I'm not sure that a court case is going to accomplish that. Remember that the courts are historically reticent to change existing law without what they see as good reason, and students that commit to repaying loans and then fail to do so are not real good poster boys for upstanding law abiding citizens. I think our best path to correction of these issues is legislative.

My CHL requalification class yesterday was interesting in that respect. With more and more people becoming licensed it appears that your neighbor is headed toward becoming a minority in his way of thinking.

My wife and many many other people don't carry a concealed weapon in public because they will likely never be willing to comply with the onerous set of requirements that they have to meet to get a license. We have to tolerate that set of onerous requirements, because otherwise citizens would feel free to exercise their constitutional rights, and we have not been able to wrangle that freedom back from the state legislature for 140 years. With that freedom, the response would be orders of magnitude greater than what we have now, and I don't believe that is just a benign impact to our society.

Actually I was talking about the attitude.

I am not sure what "onerous" requirements you are referring to, can you elaborate on that? I, personally, don't have a problem with the student loan requirement, that person owes a lot of money and probably should be proscribed from exercising privileges until they get caught up. Is it being a law abiding citizen? I don't have a problem with that either. I do find the expense somewhat objectionable, but even through all of my financial trouble recently I haven't had a problem with making sure I had the money.

Yes, I shouldn't have to pay to exercise a right, but again, getting the court to say that concealed carry is a right may be a stretch, it's been a privilege for a while now, and it's severely proscribed in other states, so the attitude of the court might just be that we should count our blessings and be happy we are not IL.

I never said we should sit back and wait on anything, nor did I even imply it, but I can tell you have not lived in other states, or at least not as a gun owner, because you would recognize how nice we have it, even with the unconstitutional laws we live under. We need to attack the problem on all fronts, relentlessly.

So then what are we waiting on?

So whose waiting? I keep up a constant campaign with our legislators, and legislators in other states as well, to re-educate them, I don't have the power or resources to do much more than that. When I lived in NY I was the chair of a committee that sued several judges for their violations of NY's pistol permit law, with mixed success I might add. One of our victories came back and bit us and another string of victories eventually ran us out of funds without a final resolution. I write letters, every day, to legislators, newspapers, and even several blogs and keep as much pressure on as I can personally.

I just don't see the logic of saying well, Texas laws are less stringent than New York, therefore, it's not worthwhile to challenge unconstitutional laws in Texas. It just doesn't make any sense to me. If there were other national cases on licensing, for example, and they were better cases that also addressed issues applicable to Texas licensing laws, that would make sense, but I'm not seeing any kind of national strategy that precludes challenging Texas laws.

But, as I keep saying, first you have to get the court to agree that what you and I see as unconstitutional is what they see as unconstitutional. No there isn't an organized national strategy, partly because there isn't a good national level case. Now if we could get someone, say a Vermonter, to get arrested in NY City carrying under TX, UT, FL, and a variety of other licenses, maybe, just maybe, after years of wending its way through the courts, we might just see a national resolution, but until then, we kind of have to depend on the little increments, like Heller, one little step at a time. I think Charles can attest that the NRA is always on the lookout for a good case.

But you still haven't answered one of my early questions: Are you, "willing to bet my house" volunteering to step up and be the test case that you say we need?

Is that what it takes?

No, but you did say it.

In that I already have a CHL, and my wife is unwilling to go through even the hassle for filing for one, yes, literally betting my house isn't likely. I really would like to understand how individuals in other states have been able to afford all sorts of legal action on individual constitutional rights. If I could afford it, I would definitely be glad to lead the way. On the other hand, I'm looking to offer financial support, and it's disappointing that I can't offer that in support of challenges to the laws that directly affect me in my state.

But you did start the thread saying you would bet your house, was that just invective? I, initially, through my lack of knowledge of you, I haven't seen you here much before, took it at face value and really had my hopes up for about five minutes or so.

I pointed out Jim Maloney, who has gone to that expense, over a couple of sticks tied together with a chain. There were times in my life when I spent literally every cent I had to further the issue in NY State, even to the point of almost destroying my marriage, and I am a pauper now by comparison. I would love to be able to put funds to discretionary use like that, but these days we run out of money before the next paycheck and entertainment is sitting here or in front of the TV. The ham radios are stored away, I don't shoot IDPA anymore, I don't shoot much of anything anymore, but my wife and I got our CHL renewals in process this weekend.

[HGWC]

And I believe there is every reason to expect that, under due process, that SCOTUS and even the 5th, would let TX laws stand as not violating due process.

I'm not sure I understand the violating due process comment. Is that the same as just violating the 2nd amendment? It's through the 14th amendment, but isn't it the same standard as if it were a straight 2nd amendment issue? You keep saying that you expect these laws will stand up. I don't see how they can. Can you think of any other fundamental rights issue where the federal courts have allowed months of delay before citizens are allowed to exercise their rights? Under due process, how will they ever rationalize the unlicensed open carry of handguns in some states against the ban on open carry in Texas?

You need to look into several other states' laws on a variety of subjects to get an answer for that first question, and I can recall when NY State still had "Chattel Laws" wherin when a woman married a man, she literally became his property, and could not file for a divorce (essentially) without his permission particularly if she was under the age of 21, there was a right lost just for being a young female. It wasn't all that long ago when some states did not recognize others' driver's licenses, until the right cases came along. I don't believe that TX CHL laws are the right case, they are relatively benign when compared to other states, and I don't believe it's much of a stretch of the imagination to envision SCOTUS saying that TX CHL laws are not that tough, and if you're in default on a student loan, you obviously have problems following simple rules, so you probably shouldn't have a CHL anyway, and after all you can still own a gun and carry it in your car. They might eve go so far as to opine that carrying concealed is not a right, but a privilege, and endanger VT and AK gun owners' rights.

None of this precludes the courts making rulings overturning aspects of our laws either. Benign in comparison to other states isn't the standard they'll use. It will be benign in comparison to the constitution I hope, and in Texas, it's not just the concealed carry laws. It's the CHL laws in combination with the ban on any other public possession of handguns. After Heller, there's no reason to believe that they'll look at CHL (the only legal access to public handgun possession) as a privilege offered by the state of Texas as compared to a fundamental individual right to self defense with the most poplular firearm for self defense. We could argue back and forth all day, as if we haven't already, but the bottom line is we won't know until there are actually rulings and precedence that apply directly to the Texas laws.

Yes, getting a change in the law as it stands would be a good thing, but I'm not sure that a court case is going to accomplish that. Remember that the courts are historically reticent to change existing law without what they see as good reason, and students that commit to repaying loans and then fail to do so are not real good poster boys for upstanding law abiding citizens. I think our best path to correction of these issues is legislative.

A state political compromise doesn't stack up against protection under the US constitution in my book. We had a political compromise up until 1868/1871 that included a constitutional guarantee that keep and bear shall not be infringed especially not a ban on openly carrying a handgun or bowie knife. That guarantee lasted only 35 years. Relatives of the men who died at the Alamo for that freedom were still alive when they banned the very weapons used to fight for that right. I'd rather seek protection under the US constitution. Flawed yes, but only if I can't get it will I be satisfied with a state political compromise.

I am not sure what "onerous" requirements you are referring to, can you elaborate on that?

It's the whole process for CHL combined with a ban on any other public possession. The fees, the training requirement, eligibility requirements, delays in issuing the licenses, reasons for revocation, etc etc. These are onerous requirements, and the scope of what's required is keeping people who are fully entitled to their rights from exercising them. These laws serve no other purpose than that.

Yes, I shouldn't have to pay to exercise a right, but again, getting the court to say that concealed carry is a right may be a stretch, it's been a privilege for a while now, and it's severely proscribed in other states, so the attitude of the court might just be that we should count our blessings and be happy we are not IL.

Concealed carry as the only legal means available to publicly defend yourself with the most common firearm for self defense. It's not just concealed carry. I don't think it will be that easy to defend that combination as just merely a privilege offered by the state legislature. I think it more likely the SC would find that public exercise of the 2nd amendment is no less of a fundamental individual right than in the home. They will certainly be hard pressed to find a basis for that in the 2nd amendment. How can you exercise an uninfringed right in armed defense of the state if you can't possess your firearms in public?

But you did start the thread saying you would bet your house, was that just invective? I, initially, through my lack of knowledge of you, I haven't seen you here much before, took it at face value and really had my hopes up for about five minutes or so.

I bet that the 2nd amendment will be incorporated. I bet that the 5th circuit would incorporate the 2nd. How's that?

I pointed out Jim Maloney, who has gone to that expense, over a couple of sticks tied together with a chain. There were times in my life when I spent literally every cent I had to further the issue in NY State, even to the point of almost destroying my marriage, and I am a pauper now by comparison. I would love to be able to put funds to discretionary use like that, but these days we run out of money before the next paycheck and entertainment is sitting here or in front of the TV. The ham radios are stored away, I don't shoot IDPA anymore, I don't shoot much of anything anymore, but my wife and I got our CHL renewals in process this weekend.

Jim Maloney's case is being handled pro bono. I definitely understand the money issue. The reality is that any progress I want to see may be more likely to come out of criminal cases. Some one that is ineligible because of a disorderly conduct conviction or default on a student loan, or someone waiting on an indefinite delay by the DPS will get arrested for possession.

[jimlongley]

And I believe there is every reason to expect that, under due process, that SCOTUS and even the 5th, would let TX laws stand as not violating due process.

I'm not sure I understand the violating due process comment. Is that the same as just violating the 2nd amendment? It's through the 14th amendment, but isn't it the same standard as if it were a straight 2nd amendment issue?

Because unless SCOTUS overturns prior decisions, which can happen but is vanishingly unlikely, the only way for ANY court to incorporate under the 14th is under the due process provision. Go back and read Nordyke carefully.

You keep saying that you expect these laws will stand up. I don't see how they can. Can you think of any other fundamental rights issue where the federal courts have allowed months of delay before citizens are allowed to exercise their rights? Under due process, how will they ever rationalize the unlicensed open carry of handguns in some states against the ban on open carry in Texas?

Months? How about decades?

Yes, if a court had the option of incorporating "Direct" then we would be able to challenge just about any gun law in any state or municipality, but they really can't, nor can they use "Privileges and Immunities" which leaves only "Due Process" and that leaves gaping holes for CHL laws to walk through.

. . .

Jim Maloney's case is being handled pro bono. I definitely understand the money issue. The reality is that any progress I want to see may be more likely to come out of criminal cases. Some one that is ineligible because of a disorderly conduct conviction or default on a student loan, or someone waiting on an indefinite delay by the DPS will get arrested for possession.

Jim's case is being handled pro bono now, partly because he probably has a winner, but mostly because he is out of money.