He’s Got a Gun!
Nothing sparks public fear more than the idea that someone has a gun. One could argue that the public fears because the public likely isn’t armed as well. Well, why aren’t you armed?
You do not have to have a concealed handgun license to be armed. In fact, you can even carry some firearms in open view of the public if you so choose.
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life. —Robert Heinlein
First, a word about Freedom
Before we can talk about our gun laws, we have to talk about our laws in general.
As Texans, we are free. We are free to do whatever we want, unless there is a law that prohibits it. This is a stark contrast as to how many people think of the law. Many people, who are wrong, believe that we are free to do what the law allows us to do.
Remember, in absence of the law, there is freedom.
Carrying a Handgun
A “handgun” means any firearm that is designed, made, or adapted to be fired with one hand.
–See Tex. Pen. Code § 46.01(5)
In Texas, it is illegal to intentionally, knowingly, or recklessly carry a handgun on or about your person. There are exceptions to this law, which allow people to carry concealed handguns; most notably, concealed handgun license holders.
If you will recall from our previous blog, Can I Carry a Handgun?, you know that you do not have to have a concealed handgun license to carry a concealed handgun in certain circumstances.
Because of the wording of this law, carrying a concealed handgun isn’t made illegal, but any carrying of the handgun is illegal. Therefore, handguns are not able to be openly carried in Texas. At least, not yet…
Carrying Rifles and Shotguns
As of right now, there are no laws that prohibit the open carrying of rifles or shotguns in Texas. That’s it. There is no law. FREEDOM! In fact, this freedom is quite celebrated.
There are no restrictions here on the types of rifles/shotguns. It isn’t like this is limited to .22 caliber rifles, or only bolt-action hunting rifles. As long as your rifle/shotgun isn’t illegal, or hasn’t been illegally modified, then you are well within your rights to bear arms.
The restrictions that you should be concerned with are the locations that you aren’t allowed to carry firearms. Just as in the last blog, the list of places is far too expansive for me to explain each, but the list includes airports, schools, polling places, liquor stores, and many more. Before you head out with your rifle, you MUST read this list.
Also, as with any private property, the property owner has the right to exclude anyone they please from their premises, and they have a right to decide if firearms are allowed on their property. If you receive notice that it is prohibited, then you do not have the consent of the owner and risk being liable for trespassing if you do not leave.
Now, there has been some discussion over whether certain pistols qualify as handguns or firearms under the law.
A “firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is an antique or curio firearm manufactured before 1899; or a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
–See Tex. Pen. Code § 46.01(3) (emphasis added)
The argument has been made that replicas of pre-1899 pistols, as long as they do not use rim fire or center fire ammunition do not meet the definition of “firearm”, and if you’ll note the definition of “handgun” above, a weapon would have to meet the definition of “firearm” before it could meet the definition of handgun.
Are you confused yet? Good, you’re not alone because this definition is poorly written. Everyone knows that you can’t use the term you’re defining in the definition for that word! Regardless of what the law says, it is so terribly written that police are having difficulty applying it and appear to take the “if in doubt, arrest and let a judge figure it out” mentality.
—See “Terry Holcomb Arrested for Black Powder Pistol”
In a Manner Calculated to Alarm
Some people have been arrested for Disorderly Conduct for openly carrying their rifles or shotguns, even though they have complied fully with the laws.
Under this statute, a person commits an offense if he intentionally or knowingly displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.
—See Tex. Pen. Code § 42.01(a)(8)
However, merely the fact that someone gets alarmed by the sight of a firearm doesn’t mean that disorderly conduct has occurred. You have to “intentionally” (when it is his conscious objective or desire to engage in the conduct or cause the result) or “knowingly” (when you are aware that your conduct is reasonably certain to cause the result).
–See Tex. Pen. Code § 6.03(a)-(b)
It is a far leap to say that someone knowingly displays a weapon in a public place in a manner calculated to alarm, purely because someone may be alarmed at the sight. In fact, my research has found no cases upheld on appeal where someone was charged with disorderly conduct simply for carrying a rifle on their back.
“…the right of the people to keep and bear arms shall not be infringed.” —U.S. Const. 2d Amend.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Criminal Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479