pt145ss wrote:[A] I understand and agree that legislative intent is important in the face of unclear or ambiguous code furthermore I believe the intent here is to keep people from walking down the street with a handgun in their hand. Here is something to ponder. One of the arguments for open carry is to allow those in a wheelchair and etc. to have easier access to a handgun for self defense. Drawing from a seated position is difficult in the best of situations much less for those with disabilities. Do you think any of the legislators that voted for 910 would take issue with someone bound to a wheelchair to strap their hand gun in a holster to the side of their wheelchair instead strapping it their hip? Just curious?The Annoyed Man wrote:Pariah3j, Please believe me..... I didn't take your previous post as an attack at all, so if that's how I came off, I apologize. When I write on this forum, it isn't always just a direct exchange between me and a correspondent. I am also writing for a larger audience, hoping they might learn something constructive from it. I may not always be successful at it, so I realize that I might come off as pedantic sometimes, but if/when I do, it isn't really directed at the person I'm exchanging posts with, it is directed at the reader who may not have the understanding of the law that members of this forum have.Pariah3j wrote:All this said, I'm not trying to attack you or stir anything up other then a healthy debate and gain a better understanding oh how this law could be enforced. And I'm not saying that pushing these laws and their meanings wouldn't end you up in jail or court. For me, most of it is more or less, just food for thought...
I do understand that words have meaning...... sometimes several meanings, which is the problem here. The law recognizes that possibility, and so do the courts. So when it is the case that words in the legal text can have several meanings, the law and courts turn to legislative intent to determine how the law is to be enforced. It's influence on how the law is ultimately enforced is HUGE. It cannot be overstated. I'm certain that you and I and almost anybody else with a CHL/LTC all actually understand the legislative intent. And we understand that, so long as we hew to it, we'll stay out of trouble. My example of wearing a holstered gun on a belt wrapped around your head was deliberately absurd for the purpose of making the point about legislative intent to that larger audience which may be relatively unsophisticated about these matters. So I was not saying you would do it, but it is a fine illustration of how someone might deliberately stretch the interpretation of intent.
Anyway, peace.
Another point about intent. Not too long ago the legislature rewrote some the transportation code. Their intent was to clean the code up and to insure that it was required to have a license plate on the front of a car. The reality was that they forgot to add the penalty language to the newly cleaned up code. The result is that for a while there was not much anyone could do if you did not have a license plate on the front of the car regardless of legislatures intent to make it illegal with a penalty.
[C] You may be proven to be absolutely correct in this regard. The point I'm making is that we are all guessing what the legislature's intent is but it is not until the either the legislature clarifies the code or the courts interpret legislative intent. Until then, we are just trying to have a civil dialog about it.
I took the liberty of labeling your quote above so I could address it in order below:
- That is a very good question, and it would seem on its face to cast some doubt on my previous assertion about intent. Intellectual honesty compels me to admit a guess (strictly a guess) that the average legislator who voted for OC would concede an exception in this scenario. Unfortunately, that concession is not included in the law as written. I would further submit though that the defense for a handicapped person who strapped their holster to their wheelchair would be implied under the Americans with Disabilities Act (even though it is not necessarily work related) and most particularly under Title V of that act, which prevents retaliation against a handicapped person for exercising his or her rights under the act.
- I can't answer with any certainty one way or the other with the license plate example. The legislature does have a track record of deliberately removing penalties for failure to comply with a law's provisions—most pointedly for the purposes of this discussion with CHL, when the penalty for failure to disclose to an LEO was removed. Therefore, was the legislature's failure to include penalties for a lack of front license plate deliberate, or merely overlooked? I honestly don't know the answer to that question. It is entirely reasonable to conclude that their intent is that the law be followed, but that they don't think a violation is worth a penalty because they trust citizens to do the right thing and to manage their rights accordingly. Either way, WRT to the holster mandate, it seems clear to me that the legislature specified "belt" and "shoulder" holsters because they reasonably intended that to mean that a reasonable person would understand that to mean "carried on-body in a belt or shoulder holster". The exception you posed above about the handicapped probably never occurred to them at the time, and my guess is that such an exception will be included in any subsequent cleanup language.......particularly if a group of handicapped CHL-holders appeals to our handicapped pro-CHL governor for a clarification in this regard; or if any lawsuits are instigated on behalf of said handicapped CHL-holders under Title V of the ADA.
- Yes, we guess, but the answers to some guesses are more glaringly obvious (to me) than others....but it can be a swamp....and I do desire civil dialog as much as the next guy. In that spirit, I've already apologized for having been pedantic previously, but do so here again. I mentioned the reasonableness standard above. The legislature concedes that such a standard exists when it includes such terms in the laws which it passes concerning self-defense, defense of others, use of force, and the use of deadly force, and that reasonableness standard is what CHL/LTC holders are held to in using our handguns for those purposes. Well, as much as the actions of the United States Congress might dissuade a citizen from according the same concession to a legislative body, the Texas State Legislature is not Congress (praise Jesus!), and it seems reasonable to me to accord our legislature the same courtesy—by assuming that they themselves were trying to adhere to a standard of reasonableness in crafting a given law. (This task is made many times more difficult when the topic of proposed legislation before the legislature is as heated, divisive, and controversial as OC was.) So, it is in that spirit that it seems evident (and eminently reasonable) to me that their legislative intent WRT to the belt and shoulder holster specification was exactly that the holstered gun should be worn on the belt or shoulder. Yes, the clarity of language leaves something to be desired, and my guess is that future cleanup language will take care of that; AND, there is the obvious exception for the handicapped to consider which you ably demonstrated; but for me it defies the reasonableness standard to conclude that the legislative intent was anything other than a firearm carried holstered on hip or shoulder. To my mind, the handicapped exception which is surely coming would surely be implied in the ADA, but it is equally obvious to me that the legislature failed to consider it. And having failed to consider it, its implications are omitted from their intent. Not fair, and certainly if they had thought of it they might have considered such exceptions........but they didn't.
Added to the mix: Consider a legally armed handicapped person who has his/her holstered pistol attached to their wheelchair instead of on body, and that wheelchair is being pushed by someone who does NOT have a CHL/LTC........ Under whose control is the holstered gun? A) the disabled person who is licensed to open carry but who does not have it on his/her person, and who cannot prevent the able person from grabbing it; or B) the unlicensed person (who may not even be lawfully able to be in possession of a gun) who can easily take control of it? The only variables are the benevolence of the person pushing the wheelchair, and his/her ability under the law to be lawfully in control of a firearm. In other words, this may be a case where an on-body requirement for the handicapped may stand. Just a thought..... Does the licensed handicapped person then have to require that anyone he/she hires as an aide be licensed also? Is that job discrimination? Does the handicapped person then have to turn down help from family members who are not licensed so as to not place them in legal jeopardy? All extrapolations which extend from the assumption that current legislative intent meant to include the ability of a handicapped person to openly carry their firearm by strapping it to their wheelchair. Etc., etc. etc.
That's the best I can explain my position....... and, not having spoken with my own state rep on this subject, I freely admit that I'm spitballing here.