Texas is the horse to watch now that it is McDonald incorporation post-time

[rodbender]

Our government has every right to "tell us what the constitution says", until it is desolved or until a different interpretation is found by a majority of the SCOTUS judges. Thats the job of the judicial, its part of our government, it was setup that way by the founding fathers.



Sorry for the broken quotes...not sure how that happened???

I think that is what I said, however by your reasoning...why have a judicial branch at all since no interpretation is needed, no preceedence is needed...by the way, the JUDICIAL Branch is part of the GOVERMENT. Just as the IRS has the right to take your money, just as teh congress has the right to pass laws that you and i follow...so what am I missing here?

The judicial branch is there to determine if the laws that are passed comply with the Constitution, not to interpret the Constitution. The judicial branch has taken on this task without authorization from the Constitution. Art. III, Sec. 2 explains the duties of the judicial branch. Nowhere does it say they have the power to interpret the Constitution.

 

[wrightme]

The judicial branch is there to determine if the laws that are passed comply with the Constitution, not to interpret the Constitution. The judicial branch has taken on this task without authorization from the Constitution. Art. III, Sec. 2 explains the duties of the judicial branch. Nowhere does it say they have the power to interpret the Constitution.

Does it deny them that power? When items such as DC v Heller come up, the decision rests wholly upon the interpretation of the Constitution. In this instance, specifically whether or not there was an individual or militia Right. Whether we like it or not, the clause about militia was used to attempt to deny the Right of a person (or, the people). Interpretation MUST proceed in that instance, as it has been viewed wrong-mindedly for a long time by large numbers of persons.

If they don't, who will?

 

[rodbender]

Does it deny them that power? When items such as DC v Heller come up, the decision rests wholly upon the interpretation of the Constitution. In this instance, specifically whether or not there was an individual or militia Right. Whether we like it or not, the clause about militia was used to attempt to deny the Right of a person (or, the people). Interpretation MUST proceed in that instance, as it has been viewed wrong-mindedly for a long time by large numbers of persons.

If they don't, who will?

It does not deny the power. Does it deny the power to pass the healthcare bill? Does it deny them the power to ban cars? Does it deny them the power to ban farming? Just because it does not deny them the power to do something, does not make it Constitutional.

The framers interpretted it as they debated it as they wrote it. Anyone that is on the 9 judge panel should already know what the framers said and should rule accordingly. If they are going to be on the SCOTUS, then they should well know what the framers intended. The documentation is there for anyone to find.

All Supreme Court justices should study this more than most citizens. Obviously not the case though.

 

[DopaVash]

Does it deny them that power? When items such as DC v Heller come up, the decision rests wholly upon the interpretation of the Constitution. In this instance, specifically whether or not there was an individual or militia Right. Whether we like it or not, the clause about militia was used to attempt to deny the Right of a person (or, the people). Interpretation MUST proceed in that instance, as it has been viewed wrong-mindedly for a long time by large numbers of persons.

If they don't, who will?

Judging by the definition of Militia, being a civilian force consisting of all able-bodied men, there isn't much interpretation needed. Oh, and yeah, like Bender is saying, The clear and concise words of the founder's intent is written all over the place.

 

[wrightme]

It does not deny the power.

Correct.

Does it deny the power to pass the healthcare bill? Does it deny them the power to ban cars? Does it deny them the power to ban farming? Just because it does not deny them the power to do something, does not make it Constitutional.

We were speaking about judicial, right? You shifted to legislative.

The framers interpretted it as they debated it as they wrote it. Anyone that is on the 9 judge panel should already know what the framers said and should rule accordingly. If they are going to be on the SCOTUS, then they should well know what the framers intended. The documentation is there for anyone to find.

All Supreme Court justices should study this more than most citizens. Obviously not the case though.

Exactly. Yet they don't, nor do those judges that heard such cases prior to SCOTUS hearing them.

WE know it was specific long before it became vague in the eyes of the general public. The unfortunate fact is that not every one remembers, or cares to. Revisionism is a great tool for people to use to attempt to get the outside world to comform to their chosen reality.

 

[wrightme]

Judging by the definition of Militia, being a civilian force consisting of all able-bodied men, there isn't much interpretation needed. Oh, and yeah, like Bender is saying, The clear and concise words of the founder's intent is written all over the place.

I agree with all of that. But that "clear and concise" writing is ignored when people "revise" reality to make themselves feel better.

"I reject your reality and substitute my own."

 

[rodbender]

We were speaking about judicial, right? You shifted to legislative.

Whether legislative or judicial, it is still unconstituional. Right? I mean, just because it is done by judicial fiat or by legislative fiat, there is no difference.

 

[usaf0906]

good lawyer?

If anyone knows of a good lawyer that would be willing to assist in this, I would gladly be the test case.

 

[rushcreek2]

I'm up here in Colorado Springs for a visit with the family, and to take care of some business concerns. I thought I'd share a real-time report on my quite pleasant shopping trip to the King Sooper on Woodmen & Rangewood around 5 PM this evening.

So refreshing after 4 months in Texas pressing against the envelope of 46.02 & 46.035 at every feasible opportunity to just go shopping for some fried gizzards, and sushi without having to cover up the Glock. Needlass to say a pleasant experience interacting with the Deli crew, making the various aisles, and checking out without the slightest concern that my holstered handgun in plain view constituted the commission of a crime. No one was the least bit threatened by my armed condition. Do you suppose they realized that I wasn't a criminal ? SIGHHHHH........

 

[Rogue Warrior]

Have you contacted them to ask?
Have you contacted the TX NRA state org (TSRA)?
Typically, unless you work with them, they do not "show their hand" prior to the session.

Yes, that is why I have the opinions I do with respect to TSRA and NRA.

They have no intent of doing anything at all...other than endorsing Rick Perry again in return for which they will get little or nothing while ignoring the fact that his transportation policies are destroying the state ("we are a single issue organization").

 

[Rogue Warrior]

If anyone knows of a good lawyer that would be willing to assist in this, I would gladly be the test case.

I do not think you want to do that. Being a defendant at a criminal trial is a pretty high risk affair. You would undoubtedly be convicted at trial and then have the opportunity to bring the matter up on appeal...all the while sitting in confinement.

It would be wiser, in my view, to find a lawyer or organization with a lawyer, and keep an eye peeled for someone else who has run afoul of the state law to present the issues.

 

[Rogue Warrior]

I'm up here in Colorado Springs for a visit with the family, and to take care of some business concerns. I thought I'd share a real-time report on my quite pleasant shopping trip to the King Sooper on Woodmen & Rangewood around 5 PM this evening.

So refreshing after 4 months in Texas pressing against the envelope of 46.02 & 46.035 at every feasible opportunity to just go shopping for some fried gizzards, and sushi without having to cover up the Glock. Needlass to say a pleasant experience interacting with the Deli crew, making the various aisles, and checking out without the slightest concern that my holstered handgun in plain view constituted the commission of a crime. No one was the least bit threatened by my armed condition. Do you suppose they realized that I wasn't a criminal ? SIGHHHHH........

Gee! Maybe it was because that you did not do anything wrong that made them feel that way.

I have been in Phoenix and the same was true. By the way, they did not have to sweep up the bodies in the morning there either.

Cheers

 

[Liko81]

I'll take a crack at it.

Federal case law jurisprudence has followed the generally recognized precedent that the mere possession, wearing, carrying of a firearm in public, in and of itself, does not support probable cause for law enforcement to articulate reasonable suspicion of criminal activity. This frequent holding by the federal courts presumes that no federal, or state sanctioned local law otherwise CONSTITUTIONALLY restricts the possession, carrying, or wearing. I do not have the citations at hand, but the case law has been previously cited and linked to on this forum. So please consider my expanation with the qualification that I am not presenting a legal brief at this time - OK.

Further the SCOTUS has in Heller and McDonald made at least ONE THING perfectly clear. HANDGUNS are not excludable from the now federally recognized and protected right to keep and bear arms. Texas 46.02 and 46.035 address CARRY AT ALL and nonconcealed (OPEN) carry of a handgun by licensees respectively under Texas law. A blanket criminalization under Texas statute of possession, carrying, or wearing a handgun (46.02) that is limited only by a few excepted allowances seems to me to be in violation of the now incorporated 2nd Amendment, as well as the Texas Constitutional protection of the RTKBA. This legal construction is inside-out , upside-down, and @#$ backwards.

Any restriction IN TEXAS must apply some concern as to location, the status of a person's right to ship, transport, posses, or receive firearms under federal and state law, and specify (under provision of the Texas Constitution) in WHAT MANNER, the arm (side-arm/handgun in this case)is REGULATED to be worn (to prevent crime). Texas has to choose to allow either otherwise lawful open carry combined with regulated concealed carry, or (preferably) allow for constitutional carry ( concealed or in plain view) subject only to other statutory restrictions(previous offenders, specified restricted locations) .

A possible response to the REGULATION of how a handgun may be worn provided in 46.035 (by a person licensed to carry a handgun concealed), may rest in the fact that under Texas law the concealed carry of a handgun is not explicitly restricted , or prohibited, although it may be construed historically, given Texas court arguments, and opinions over the last 138 years that suggest CONCEALABILITY is at the very heart of 46.02.
Given that concealed carry is not criminalized under Texas law, the Texas concealed handgun license is actually a HANDGUN LICENSE that requires any handgun worn to be concealed. Unlike Colorado for instance that plainly criminalizes concealed carrying statutorially and excepts the practice constitutionally from the RTKBA. Colorado considers the wearing of a handgun in plain view to be the exercise of a constitutionally protected right. Texas' peculiar handgun law is now nullified under incorporation at least as it pertains to criminalizing otherwise lawful handgun wearing without a license . Prior to incorporation Texas could have restricted the right just as thoroughly as Illinois, if political reality so allowed. Reflecting upon that thought further, Texas wasn't actually very far behind Chicago statutorially prior to 1995, when the shall issue concealed carry law was passed.

If I were to approach the Sheriff in one particularly Texas county where I formally resided with the proposition : "Will I be arrested and charged under 46.02 or 46.035 if I walk past the courthouse wearing my holstered handgun in plain view ?" I can guarantee the response would be something like: "Are you planning on robbing the bank? or did you park your car in a no-parking zone?"

Common sense should suggest the question be asked - "Where is the crime?" or "Has this person threatened to commit a crime?"

This is why Texas law 46.02 needs clarification and/or amendment - post-McDonald.

... "the power to regulate the wearing of arms WITH A VIEW TO PREVENT CRIME" .... can no longer be stretched into the power to BAN mere possession, or wearing of a hangun except in the case of certain State allowed circumstances - as is the situation presently in Texas . 46.02 MUST BE CONSTRUED TO LOOK BEYOND THE LAWFUL EXERCISE OF THE RTKBA for evidence of actual criminal conduct, or criminal purpose, and intent to engage in criminal conduct.

Governor Perry must be persuaded to request that Attorney General Abbott review this issue and clarify 46.02/46.035 (for starters) in respect to federal and State constitutionality.

Good points. I wish to discuss some of them.

In Heller, the question was whether a law or laws that prevented the ownership of handguns or of unlocked, functional firearms was in violation of the 2A. Though public carry was a part of the laws in question, and the Court did call the laws unconstitutional, the decision did not specifically strike down those provisions.

In McDonald, the question to be decided was whether the 2A should be incorporated to the States under some provision of the 14A. That question was also decided without also answering any question of carry.

So, handguns are a class of "arms" to which Second Amendment protections apply, and those protections apply to States as well. The breadth of either decision with regard to the border between legal restriction and unconstitutional infringement has not yet been explored. It is still too soon to say that either decision can be applied to Texas's laws. In any case, I do not think Texas will be the next battleground state, because there are quite simply bigger fish to fry:

- Texas provides for "shall-issue" concealed carry. It's still "gov't permission to exercise an enumerated right", but you cannot be denied "because I said so". Other states, notably New York, Maryland, New Jersey, California and Hawaii, practice "may-issue" policies that are used to discriminate and/or to infringe upon the right to carry in general. There, you can indeed be told you cannot carry at the whim of a government clerk, and that prevents you from exercising your right to bear arms at all, which presents a far easier legal argument against it.
- Texas does not require the registration of any weapon by civilian owners/purchasers. The only registrations required are Federally-mandated for NFA weapons. Many jurisdictions, including the two that just got the SCOTUS smackdown, still require registration; they just now allow for registration of handguns.
- Texas has a very strong Castle Doctrine, including unlicensed car carry. 19 of 51 states, and D.C., do not have any "stand-your-ground" law.