serious question

[DKSuddeth]

open carry is not legal in Texas, by law, but I have serious doubts about the constitutionality of said law. Has it ever been challenged? anyone know the case?

This is why I ask.

Cockrum v. State, 24 Tex. 394 (Tex. 1859)
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the 'High Powers' delegated directly to the citizen by the United States Constitution, Amendment II....A law cannot be passed to infringe upon it or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision.

I know that the texas constitution states "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

Does regulating the wearing of arms allow the state to tax a right?

A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.' —MURDOCK V. PENNSYLVANIA 319 US 105 (1942)

I KNOW, without a doubt, that were I to walk down the street open carrying, i'd be arrested at gunpoint, but any legal types know the case law to dismiss?

[txinvestigator]

open carry is not legal in Texas, by law, but I have serious doubts about the constitutionality of said law. Has it ever been challenged? anyone know the case?

This is why I ask.

Cockrum v. State, 24 Tex. 394 (Tex. 1859)
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the 'High Powers' delegated directly to the citizen by the United States Constitution, Amendment II....A law cannot be passed to infringe upon it or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision.

I know that the texas constitution states "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

Does regulating the wearing of arms allow the state to tax a right?

A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.' —MURDOCK V. PENNSYLVANIA 319 US 105 (1942)

I KNOW, without a doubt, that were I to walk down the street open carrying, i'd be arrested at gunpoint, but any legal types know the case law to dismiss?

There is no case law to dismiss. You would be charged with UCW.

Don't allow the militia types fool you. You can't open carry in Texas, and the state CAN require you to have a Driver License to drive.

[DKSuddeth]

so, despite court decisions and precedence, a court would let stand an arrest and conviction of an offense against an unconstitutional state law?

I guess my next question would be when does a court become illegitimate?

[txinvestigator]

so, despite court decisions and precedence, a court would let stand an arrest and conviction of an offense against an unconstitutional state law?

I guess my next question would be when does a court become illegitimate?

Please cite the 'court decisions and precendents" of which you write.

To answer your next queston; It does not.

[DKSuddeth]

Please cite the 'court decisions and precendents" of which you write.

I have in the first post. court decisions do set a precedence, right?

To answer your next queston; It does not.

so if a court ruled that some law congress made that DOES abridge the freedom of speech, then we no longer have a first amendment? By the reasoning of 'no court is illegitimate, despite unconstitutional rulings' we are bound by an oligarchy.

[txinvestigator]

Please cite the 'court decisions and precendents" of which you write.

I have in the first post. court decisions do set a precedence, right?

To answer your next queston; It does not.

so if a court ruled that some law congress made that DOES abridge the freedom of speech, then we no longer have a first amendment? By the reasoning of 'no court is illegitimate, despite unconstitutional rulings' we are bound by an oligarchy.

Your snippit from that case does not, IMO, set precendent that Texas cannot regulate weapons by law. Have you read the actual case and the full decision? I have.

and regarding your other question, I am sorry, but I have no idea what this means

so if a court ruled that some law congress made that DOES abridge the freedom of speech, then we no longer have a first amendment?

[DKSuddeth]

Your snippit from that case does not, IMO, set precendent that Texas cannot regulate weapons by law. Have you read the actual case and the full decision? I have.

I have too. not sure where you're going with that. This case was about the abuse of that right, not the right itself. It should also be noted that they talk about the texas constitution - "The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the
right to keep and bear arms, in the lawful defense of himself or the state."

that tells me that at some point, texas changed their constitution to give more power to the legislature, specifically to regulate firearms. I'm still researching the history of that.

and regarding your other question, I am sorry, but I have no idea what this means

so if a court ruled that some law congress made that DOES abridge the freedom of speech, then we no longer have a first amendment?

It means simply that if any court rules in obvious violation of the constitution, no matter the clause or amendment, does that court become illegitimate? There is really no other way to handle an obvious unconstitutional ruling. Someone suggest what the process is. I don't know.

[KBCraig]

I'll also raise the issue that a Texas Supreme Court ruling from 1859 was a couple of governments ago. It's no more valid than citing a ruling from the Republic of Mexico.

Kevin

[Commander]

Correct me if I am wrong, but I thought the Texas Supreme Court dealt only with Civil Cases and the Texas Court of Criminal Appeals dealt with Criminal Cases

[KBCraig]

Correct me if I am wrong, but I thought the Texas Supreme Court dealt only with Civil Cases and the Texas Court of Criminal Appeals dealt with Criminal Cases

I believe that's true under the current system of Texas government, which came into being with the Constitution of 1876. The 1859 ruling would have been under the authority of the 1845 constitution. In between, Texas joined the United States, then left it, was repatriated through conquest, and suffered through three more constitutions (1861, '66, '69).

The beauty of the 1876 constitution is that it is restrictive: state government has absolutely no power not granted to it by the constitution. Texas also has no "ballot initiative", where citizens vote on laws. The downside of these two facts is that in order to do anything on a statewide level, the constitution has to be amended. Our fellow citizens in Our Fair State have seen fit to pass amendments more than 400 times. Every time an amendment passed, the statewide government got stronger, and the individual grew weaker.

I welcome Chas. to correct me if I'm wrong, but I believe a ruling from 1859 has no more weight than a ruling from RoT, Spain, Mexico, France, or the CSA.

Kevin

[txinvestigator]

Correct me if I am wrong, but I thought the Texas Supreme Court dealt only with Civil Cases and the Texas Court of Criminal Appeals dealt with Criminal Cases

I believe that's true under the current system of Texas government, which came into being with the Constitution of 1876. The 1859 ruling would have been under the authority of the 1845 constitution. In between, Texas joined the United States, then left it, was repatriated through conquest, and suffered through three more constitutions (1861, '66, '69).

The beauty of the 1876 constitution is that it is restrictive: state government has absolutely no power not granted to it by the constitution. Texas also has no "ballot initiative", where citizens vote on laws. The downside of these two facts is that in order to do anything on a statewide level, the constitution has to be amended. Our fellow citizens in Our Fair State have seen fit to pass amendments more than 400 times. Every time an amendment passed, the statewide government got stronger, and the individual grew weaker.

I welcome Chas. to correct me if I'm wrong, but I believe a ruling from 1859 has no more weight than a ruling from RoT, Spain, Mexico, France, or the CSA.

Kevin

I agree.

[Freedom4All]

Don't allow the militia types fool you. You can't open carry in Texas, and the state CAN require you to have a Driver License to drive.

I don't see how this is a good analogy since driving a vehicle is not recognized by the Constitution as a right of the people which shall not be infringed.