Are Texas CHL laws constitutional?

[HGWC]

The 9th circuit court of appeals has ruled that the 2nd amendment is incorporated against the states via the 14th amendment. This single case challenged the constitutionality of a county ordinance under the 2nd and 14th amendments. The court ruled on incorporation and US constitutionality of the county ordinance. I would sure like to see a similar case in Texas. After it's ruling in US V Emerson and the Nordyke case, I would bet my house that the fifth circuit court would also incorporate the 2nd. With the same case, I think they would have a much more difficult time finding our laws restricting public possession constitutional.

As it stands, almost all Texas citizens are prohibited from publicly possessing a whole class of the most popular weapons for self-defense. Only after complying with an onerous and expensive set of administrative rules can you even apply to exercise your right. Once you apply, the legislature has allowed the DPS to indefinitely delay your application. We have Heller defining the 2nd amendment as an individual right to self defense. They've made it clear that a total prohibition of the most popular weapon for self defense won't survive any standard of scrutiny, and as we've seen in Nordyke, it's almost a certainty that the 2nd amendment will be incorporated against the states. Texas gun control laws have never been subjected to this kind of review. How long are we going to wait on politics and the legislature? When will we challenge these laws in court?

[Keith B]

Thread on the ruling already running here http://www.texasshooting.com/TexasCHL_F ... 81&start=0" onclick="window.open(this.href);return false;

[HGWC]

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?

[boomerang]

Why have we not already?

My guess is standing. And a worthwhile test case.

[bdickens]

First off, HGWC, the legislature has not "...allowed the DPS to indefinitely delay your application." People can only work as fast as they can work and there are only so many hours in a day. And if the DPS has to wait for the FBI to do their part, or if they are delayed because the county clerk in a rural county where you grew up only works on Thursday because he manages the feed store the rest of the week, what can they do about it? It's kind of like my own job; I can't install parts that I don't have on hand.

Secondly, what is this "...whole class of the most popular weapons" that "...almost all Texas citizens are prohibited from publicly possessing?"

[HGWC]

First off, HGWC, the legislature has not "...allowed the DPS to indefinitely delay your application."

Sure they have. They gave the DPS discretion to conduct what ever background checks they saw fit with vaguely justified delays up to 180 days and implicit denials for unspecified reasons beyond that. When it comes to the palladium of liberty, when does an indefinite delay become an infringement?

People can only work as fast as they can work and there are only so many hours in a day. And if the DPS has to wait for the FBI to do their part, or if they are delayed because the county clerk in East BFE county where you grew up only works on Thursday because he manages the feed store the rest of the week, what can they do about it? It's kind of like my own job; I can't install parts that I don't have on hand.

These kind of lame excuses won't even hold up to the Texas constitution, or the state statute itself. The DPS is specifically limited on the local background checks to 60 days. What they do, including no background check at all, is completely at their discretion. Extending beyond that, which they're doing regularly, is just denying our rights. They have no legislative requirement to do local background checks. It's completely at their discretion, and they're choosing to consistently violate our rights.

Under the US constitution, there's no way the vague legislature on delay limits, unjustified implicit denials, and excuses like you've listed above will ever stand a chance. Who would tolerate this nonsense when it came to getting a permit to carry a protest sign? These kind of excuses will never make it into court.

Secondly, what is this "...whole class of the most popular weapons" that "...almost all Texas citizens are prohibited from publicly possessing?"

It's the ban on public possession of handguns that we've been under since 1871, penal code Sec 46.02.

[nitrogen]

HGWC, you're a nut.

But I like you. We need more nuts like you, and perhaps, when we get more folks like you, it won't seem nutty to feel the way you do.
I'd like to live in that world.

[jimlongley]

. . .

I would bet my house that the fifth circuit court would also incorporate the 2nd. With the same case, I think they would have a much more difficult time finding our laws restricting public possession constitutional.

. . .

When will we challenge these laws in court?

When we find a suitable test case, are you really willing to bet your house and step up to be that test case?

I would not bet anything in the current political climate, even if I do think that the 5th would go that way, because it's entirely possible that they could also do the same sort of thing the 9th did, incorporate, with exceptions for existing law. Don't forget that the Texas Constitution says "regulate . . . with a view . . ."

And I have been rethinking my opinion about having the 9th's decision appealed up to SCOTUS. I think having Holder write a scathing amicus brief might have an effect on the court that might be detrimental.

Alas, my nightmares keep coming true, we keep living in interesting times.

[bdickens]

There is no "...ban on public possession of handguns." I don't know where you get that idea. I, and many others here too (and presumably you yourself) regularly carry a handgun in public, in Texas, legally. Chicago, Illinois has a "...ban on public possession of handguns," Texas does not.

So, I guess it is a "lame excuse" if I can't get a job done on time because I'm waiting on parts that haven't arrived.

Your assertion that DPS "...no legislative requirement to do local background checks" is ludicrous. Where else are they supposed to do them? Everything you do, you do locally and that is where any possible records needed to complete the background checks are going to be.

The number one reason for delays in completing background checks is waiting on local officials to do their part.

Like I said, there is only so much that so many people can do in a day. Oh, but that's just a "lame excuse" isn't it? Maybe if someone just whipped the clerks harder.

[Rex B]

DPS is not living up to the 60-day requirement, judging from the reports posted on this board.
DPS does seem to be hiring for admin duties, hopefully for the CHL licensing group.

Further, I agree about the onerous requirements. It costs about $250 to get a CHL, and that's a large amount to some of the people who need protection the most.
When a citizen decides to take an active role in their own safety, that should be a net savings to the community. Though hard to quantify, he application cost should reflect that.
Also, the 10-hour class should be reduced to a written test covering the legal and safety points. The range proficiency test is fine. 4 hours should do it, which makes it a one-evening after work deal.

[HGWC]

There is no "...ban on public possession of handguns." I don't know where you get that idea. I, and many others here too (and presumably you yourself) regularly carry a handgun in public, in Texas, legally. Chicago, Illinois has a "...ban on public possession of handguns," Texas does not.

Sec. 46.02. 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

That law is a ban on public possession of handguns. It's been on the books since 1871, and it was made unconstitutional in 1876 under the state constitution. It will be unconstitutional under federal law as soon as the 2nd amendment is recognized as being incorporated by either the 5th circuit or SCOTUS.

I guess it is a "lame excuse" if I can't get a job done on time because I'm waiting on parts that haven't arrived.

Yes, that's right. If you're waiting on parts that aren't required to complete the order, and if in fact, you've agreed to never require an order be made at all, it's a lame excuse. Texas ratified the fourteenth amendment. Texas ratified an amendment to it's own constitution that was intended to repeal the 1871 gun ban. The Texas legislature explicitly gave the DPS full discretion on the background check, including the option to skip it all together. So, yes, it's an incredibly lame excuse now to say they can't respect our constitutional rights because they didn't allocate the funds we paid for in unconstitutional fees to complete the bureaucratic, unconstitutional, and indefinitely delayed local background checks.

Your assertion that DPS "...no legislative requirement to do local background checks" is ludicrous.

The Texas legislature disagrees with you.

Sec 411.176 (b)"The director's designee as needed shall conduct an additional criminal history record check of the applicant and an investigation of the applicant's local official records to verify the accuracy of the application materials. The scope of the record check and the investigation are at the sole discretion of the department, except that the director's designee shall complete the record check and investigation not later than the 60th day after the date the department receives the application materials.

The number one reason for delays in completing background checks is waiting on local officials to do their part.

Local background checks that aren't required by the legislature, that, if done at all, are mandated by the legislature to be done in 60 days.

Like I said, there is only so much that so many people can do in a day. Oh, but that's just a "lame excuse" isn't it? Maybe if someone just whipped the clerks harder.

Maybe if the state government just decided to respect our constitutional rights or maybe if they're forced to by a federal court, and yes, that's a lame excuse. Stop making excuses for the DPS. There is no excuse.

[HGWC]

I would not bet anything in the current political climate, even if I do think that the 5th would go that way, because it's entirely possible that they could also do the same sort of thing the 9th did, incorporate, with exceptions for existing law.

They're not going to have any choice. Read the Nordyke case. They will all have to incorporate. The gig is up. The real fight will be over the standard of scrutiny.

Don't forget that the Texas Constitution says "regulate . . . with a view . . ."

Don't forget that with incorporation, those odious words will be rendered moot and abandoned as only a stain in our history books. They'll be replaced with shall not be infringed, and our state constitution will be de facto amended to it's original wording that Texans fought and died for at the Alamo.

And I have been rethinking my opinion about having the 9th's decision appealed up to SCOTUS. I think having Holder write a scathing amicus brief might have an effect on the court that might be detrimental.

All the more reason to have a case filed in Texas. A contradictory ruling from the 5th circuit on incorporation, assuming the 9th reconsiders, would send it straight to SCOTUS. The sooner we get a ruling in the 5th circuit, for or against, the better off we are. Why are Texans waiting on California and Chicago to set our fate on Texas gun rights? That's my question.

[bdickens]

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:

(b) Section 46.02 does not apply to a person who:

[inconsistent amendments to the same provision.]

(1)*

*[as added by Acts 1997, 75th Leg., ch. 1261 §28, last legis. act: 06-01-97 (and therefore, probably effective.]

is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;

(1)*

*[as added by Acts 1997, 75th Leg., ch. 1221, last legis. act: 05-31-97 (and therefore, probably NOT effective.]

is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as an employee of a penal institution who is performing a security function;

(2) is on the person's own premises or premises under the person's control unless the person is an employee or agent of the owner of the premises and the person's primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event the person must comply with Subdivision (5);

(3) is traveling;

(4) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is directly en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;

(5) holds a security officer commission issued by the Texas Board of Private Investigators and Private Security Agencies, if:

(A) the person is engaged in the performance of the person's duties as a security officer or traveling to and from the person's place of assignment;

(B) the person is wearing a distinctive uniform; and

(C) the weapon is in plain view;

(6) is carrying a concealed handgun and a valid license issued under Article 4413(29ee), Revised Statutes, to carry a concealed handgun of the same category as the handgun the person is carrying;

(7) holds a security officer commission and a personal protection authorization issued by the Texas Board of Private Investigators and Private Security Agencies and who is providing personal protection under the Private Investigators and Private Security Agencies Act (Article 4413(29bb), Vernon's Texas Civil Statutes); or

(8) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises.

(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury.

(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.

(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony. person is supervising the operation of the permitted or licensed premises.

http://www.txdps.state.tx.us/administra ... chlaws.htm" onclick="window.open(this.href);return false;

That right there is a whole list of circumstances in which comeone can carry a handgun or other weapon in public, in Texas.

The background check most certainly does include a check of local records. Note please the words I put in bold that you apparently chose not to read:

Sec 411.176 (b)"The director's designee as needed shall conduct an additional criminal history record check of the applicant and an investigation of the applicant's local official records to verify the accuracy of the application materials. The scope of the record check and the investigation are at the sole discretion of the department, except that the director's designee shall complete the record check and investigation not later than the 60th day after the date the department receives the application materials.

In order to ensure that you, the applicant meet these eligibility requirements:

GC §411.172. ELIGIBILITY.

(a) A person is eligible for a license to carry a concealed handgun if the person:

(1) is a legal resident of this state for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a);

(2) is at least 21 years of age;

(3) has not been convicted of a felony;

(4) is not charged with the commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code, or of a felony under an information or indictment;

(5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor;

(6) is not a chemically dependent person;

(7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun;

(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code;

(9) is fully qualified under applicable federal and state law to purchase a handgun;

(10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general;

(11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the state;

(12) has not been finally determined to be in default on a loan made under Chapter 57, Education Code;

(13) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;

(14) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and

(15) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 or in a request for application submitted pursuant to Section 411.175.

(b) For the purposes of this section, an offense under the laws of this state, another state, or the United States is:

(1) a felony if the offense is so designated by law or if confinement for one year or more in a penitentiary is affixed to the offense as a possible punishment; and

(2) a Class A misdemeanor if the offense is not a felony and confinement in a jail other than a state jail felony facility is affixed as a possible punishment.

(c) An individual who has been convicted two times within the10-year period preceding the date on which the person applies for a license of an offense of the grade of Class B misdemeanor or greater that involves the use of alcohol or a controlled substance as a statutory element of the offense is a chemically dependent person for purposes of this section and is not qualified to receive a license under this subchapter. This subsection does not preclude the disqualification of an individual for being a chemically dependent person if other evidence exists to show that the person is a chemically dependent person.

(d) For purposes of Subsection (a)(7), a person is incapable of exercising sound judgment with respect to the proper use and storage of a handgun if the person:

(1) has been diagnosed by a licensed physician as suffering from a psychiatric disorder or condition that causes or is likely to cause substantial impairment in judgment, mood, perception, impulse control, or intellectual ability;

(2) suffers from a psychiatric disorder or condition described by Subdivision (1) that:

(A) is in remission but is reasonably likely to redevelop at a future time; or

(B) requires continuous medical treatment to avoid redevelopment;

(3) has been diagnosed by a licensed physician or declared by a court to be incompetent to manage the person's own affairs; or

(4) has entered in a criminal proceeding a plea of not guilty by reason of insanity.

(e) The following constitutes evidence that a person has a psychiatric disorder or condition described by Subsection (d)(1):

(1) involuntary psychiatric hospitalization in the preceding five-year period;

(2) psychiatric hospitalization in the preceding two-year period;

(3) inpatient or residential substance abuse treatment in the preceding five-year period;

(4) diagnosis in the preceding five-year period by a licensed physician that the person is dependent on alcohol, a controlled substance, or a similar substance; or

(5) diagnosis at any time by a licensed physician that the person suffers or has suffered from a psychiatric disorder or condition consisting of or relating to:

(A) schizophrenia or delusional disorder;

(B) bipolar disorder;

(C) chronic dementia, whether caused by illness, brain defect, or brain injury;

(D) dissociative identity disorder;

(E) intermittent explosive disorder; or

(F) antisocial personality disorder.

(f) Notwithstanding Subsection (d), a person who has previously been diagnosed as suffering from a psychiatric disorder or condition described by Subsection (d) or listed in Subsection (e) is not because of that disorder or condition incapable of exercising sound judgment with respect to the proper use and storage of a handgun if the person provides the department with a certificate from a licensed physician whose primary practice is in the field of psychiatry stating that the psychiatric disorder or condition is in remission and is not reasonably likely to develop at a future time.

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

[Charles L. Cotton]

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.

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.

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.

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.

Chas.

[boomerang]

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.