If you could re-write & clarify the current weapons laws...

[Hoi Polloi]

There are a lot of discussions here on the laws concerning weapons being ambiguous and containing a lot of subjectivity in application and gray area. If you could re-write the existing laws to remove those ambiguities, what would the laws look like? I think this would be a very helpful exercise and opportunity for input going into the next legislative session.

To clarify, this thread isn't to discuss what new laws you wish would be passed (employee indemnity, campus carry, no restricted locations, etc) but to clean-up the poorly worded existing laws, provide consistency across statutes, and replace ambiguous areas with clear terms.

Here are links to some of the current relevant statutes. Are there any others needing to be considered?
TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY - CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY (Justification and deadly force)
TITLE 7. OFFENSES AGAINST PROPERTY - CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS (CHL notice)
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY - CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES ("Brandishing")
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS - CHAPTER 46. WEAPONS (Weapons)

Since there's a thread going on about it now, which inspired me to create this one, would you like to start with 46.035 which currently does not have any specific exemptions for a CHL holder being in one's house, teaching a class at a range, etc?

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:

(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;

(3) on the premises of a correctional facility;

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

(5) in an amusement park; or

(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.

(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.

(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer's employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.

(f) In this section:

(1) "Amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(2) "License holder" means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.

(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 2


(h-1) It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was:

(1) an active judicial officer, as defined by Section 411.201, Government Code; or

(2) a bailiff designated by the active judicial officer and engaged in escorting the officer.

Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 5


(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:

(1) a judge or justice of a federal court;

(2) an active judicial officer, as defined by Section 411.201, Government Code; or

(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.

(j) Subsections (a) and (b)(1) do not apply to a historical reenactment performed in compliance with the rules of the Texas Alcoholic Beverage Commission.

(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.

Added by Acts 1995, 74th Leg., ch. 229, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 10.04, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 26, 27, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.833, eff. Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch. 976, Sec. 3, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 2, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 5, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch. 687, Sec. 1, eff. September 1, 2009.

[Purplehood]

Based on that same topic you mention, I would like the laws to specify it would not be a crime to display a weapon in private residences or businesses with the consent of the individual having control over that place. That might also be cleaned up to include public displays under controlled circumstances (gun classes in a public location).

[ScottDLS]

There are a lot of discussions here on the laws concerning weapons being ambiguous and containing a lot of subjectivity in application and gray area. If you could re-write the existing laws to remove those ambiguities, what would the laws look like? I think this would be a very helpful exercise and opportunity for input going into the next legislative session.

To clarify, this thread isn't to discuss what new laws you wish would be passed (employee indemnity, campus carry, no restricted locations, etc) but to clean-up the poorly worded existing laws, provide consistency across statutes, and replace ambiguous areas with clear terms.

Here are links to some of the current relevant statutes. Are there any others needing to be considered?
TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY - CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY (Justification and deadly force)
TITLE 7. OFFENSES AGAINST PROPERTY - CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS (CHL notice)
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY - CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES ("Brandishing")
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS - CHAPTER 46. WEAPONS (Weapons)

Since there's a thread going on about it now, which inspired me to create this one, would you like to start with 46.035 which currently does not have any specific exemptions for a CHL holder being in one's house, teaching a class at a range, etc?

Great topic Hoi!

First I'll say I agree with what Chas. has said previously...that generally we should not open up sections of the Penal Code that are already quite explicit. In my view 30.06 is one of those. That is unless we get some nonsense case precedent that is necessary for the legislature to over-ride.

I also think that 46.035 is fairly clear that in order for its provisions to apply, you must be carrying under the authority of your CHL. So if you have another defense or exception to 46.02....

-Peace Officer
-Military
-Security Guard
-Own premises
-Sporting activity
-MPA

...you already are exempted from 46.035.

46.02 could be clarified to allow non-CHL carry on private property WITH PERMISSION OF THE OWNER OR PERSON IN CONTROL OF THE PROPERTY. This would take care of the gray areas of gun store employees, your brother-in-law's private residence, gun show, etc.

I'd like to see you be able to carry in 51% location with a CHL. It's already illegal to carry (under CHL) while intoxicated, so why not carry in a bar.

I'd like to see the 46.15 non-applicability statute become an EXCEPTION to 46.02 and 46.03. Chas. has said that by case law 46.15 Non-Applicability is a Defense to Prosecution...so today carrying with a CHL (or while on duty as a peace officer for that matter) is a Defense.

I'd like a "parking lot/personal car" protection from adverse action by employer...like Oklahoma and Florida have.
I'd like licensed open carry as well....but you said to save those for another thread....

-Scott

[Hoi Polloi]

I also think that 46.035 is fairly clear that in order for its provisions to apply, you must be carrying under the authority of your CHL. So if you have another defense or exception to 46.02....

-Peace Officer
-Military
-Security Guard
-Own premises
-Sporting activity
-MPA

...you already are exempted from 46.035.

I very easily could have misunderstood, but I believe he said that 46.035 does not have any exceptions and that the exceptions of 46.02 do not apply to 46.035. Therefore, by letter of the law, anyone with a CHL is always carrying under its authority and is always bound unless an exemption is provided and there is not one for 46.035 ("intentional failure to conceal").

[cbr600]

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[cbr600]

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[ScottDLS]

I also think that 46.035 is fairly clear that in order for its provisions to apply, you must be carrying under the authority of your CHL. So if you have another defense or exception to 46.02....

-Peace Officer
-Military
-Security Guard
-Own premises
-Sporting activity
-MPA

...you already are exempted from 46.035.

I very easily could have misunderstood, but I believe he said that 46.035 does not have any exceptions and that the exceptions of 46.02 do not apply to 46.035. Therefore, by letter of the law, anyone with a CHL is always carrying under its authority and is always bound unless an exemption is provided and there is not one for 46.035 ("intentional failure to conceal").

My interpretation of 46.035 is that you are exempt from it when you don't need the "under the authority of... (CHL)" to avoid violating another law, i.e. 46.02. Unless you read it that way you have nonsense results, like you can't unconceal while target shooting...in your OWN house...when you are a Peace Officer on-duty and happen to have a CHL...while hunting, etc.

I think Steve R and Chas. have suggested a similar interpretation of 46.035 as I have. I suppose some language could be added to explicitly state when you are carrying under the authority of your CHL.

[wheelgun1958]

The Heller decision clarified that the 2nd amendment refers to an individual right. The McDonald decision clarified that is applies to the states. Again, how many ways can you define 'shall not be infringed?'

[Ameer]

I don't know anything that needs to be clarified but there's lots of restrictions that need to be rolled back.

46.035 is garbage. Is it doesn't apply to off duty special instigators but if the restrictions made sense they would.

[The Annoyed Man]

I am NOT advocating a constitutional convention, but if it were possible to do so without risk to our civil liberties, I would rewrite the 2nd Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"

would be rewritten to read

"It being necessary for all citizens to be individually well-armed as a deterrent to the arrogance of officialdom, to promote the protection of their communities, and to provide for the defense of their families, the individual right of each citizen to keep and bear any kind of arms shall not be regulated or curtailed in any way whatsoever."

That would pretty much take care of any of the other laws.

[ScottDLS]

The Heller decision clarified that the 2nd amendment refers to an individual right. The McDonald decision clarified that is applies to the states. Again, how many ways can you define 'shall not be infringed?'

Heller was a great decision, but don't read more into it than is there... There's plenty of work to be done at the state level.

Let me quote some sections from the decision:

SUPREME COURT OF THE UNITED STATES
_________________
No. 07–290
_________________
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v.
DICK ANTHONY HELLER

....

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues.
...
Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
....

Just food for thought, while we're throwing around the SCOTUS decisions...

[TLE2]

I would allow any citizen to lawfully carry a concealed weapon anywhere, if so licensed. I would allow any citizen above the age of majority, to carry openly anywhere, except schools and a limited number of other places. However, open carry (no concealed carry) would be subject to verification by law enforcement of citizenship, criminal background check, and the presence of any adjudicated mental instability. However, such verification could not take place more than once per calendar month, regardless of change of jurisdiction. Verification must be on the spot and "instant".

Off the top of my head.

[Hoi Polloi]

We're getting pretty far astray.

What I'm hoping for in this thread is something along these (completely made up) lines...

Section 30.06b and 46.02 have exceptions which make the carrying, transportation, and use of a firearm lawful during hunting, sporting, or other lawful activities. However, section 46.035 does not provide any exceptions which would technically make it illegal to ever have a gun visible, even on your own property, if you have a CHL. This clearly was not the intent of the law as it was published and it is not how the law is being enforced today. To clarify the law, a section should be added which provides exceptions to 46.035 for all of the same activities that are exceptions under 46.02. (The preceding is mumbo-jumbo that is not accurate in any way. I made it up for illustrative purposes because I don't have time now to make an accurate suggestion.)

The intent is to take a red pen to the current laws and point out all the places they are ambiguous or poorly worded or inconsistent and to make suggestion for how to correct those issues. This would not be the ideal for what you would like to see and I understand that. The point is to see where the current law could be improved to mean what was intended. Areas that currently are theoretically problematic.

This brings about awareness and it brings the potential for minor tweaking in any section that will be addressed by larger laws in the next legislative session. If it's going to be amended anyway (that's where the ideal comes in--in that getting amended anyway part), some minor edits for consistency and grammar and intent would be easy to include. So that's why I'm proposing that we come up with a clarification of the current laws, as they stand, and maintaining the intent that the current laws possess.

[Ameer]

The point is to see where the current law could be improved to mean what was intended. Areas that currently are theoretically problematic.

I think Mr. Cotton said that there are situations that are ambiguous (not bright line) or technically illegal but aren't enforced. However, these don't cause many problems in the real world, so it makes more sense to spend the political capital to change laws that do cause problems.

[bnc]

"It being necessary for all citizens to be individually well-armed as a deterrent to the arrogance of officialdom, to promote the protection of their communities, and to provide for the defense of their families, the individual right of each citizen to keep and bear any kind of arms shall not be regulated or curtailed in any way whatsoever."

That would pretty much take care of any of the other laws.

All in favor...