Constitutional Carry and the 84th Texas Legislature

10293698_1013011078714920_2336908044463764354_oWhen the 84TH Texas Legislature convenes on January 13, 2015; the debate over the open carry of handguns in Texas will likely take center stage. Newly elected Governor Greg Abbott vowed to sign open carry legislation as one of his major campaign promises, and the people who elected him fully intend to hold him to it. Texas has been the focal point of the open carry debate over the past several years with groups like Open Carry Texas (OCT) and Come and Take It Texas (CATI) gaining massive amounts of publicity with their rallies and “in your face” brand of activism. The internet has abounded with gun rights supporters debating the tactics and effectiveness of these groups, often with a high degree of animosity coming from both sides of the argument. Wherever you stand on the issue of the ethics and effectiveness of different brands of advocacy, what we have before us in 2015 is an opportunity to unite as supporters of the 2nd Amendment with the common goal of reclaiming our rights from the bureaucracy. There have been two bills filed thus far; HB 164 and HB195 that approach open carry in two separate ways. Here I will consider the pros and cons of each bill and tell you what I personally think needs to happen, what might happen, and what shouldn’t happen if we want this to be another landmark year for gun rights in Texas.

HB 164 Submitted By Rep. James White of District 19

HB 164 amends the language in the existing law such that, if passed, a licensed individual would be allowed to carry their firearm concealed or unconcealed in places where licensees are already allowed to carry. The obvious disadvantage from the perspective of individual liberty is that this bill would leave the current licensing requirement in place. This will continue to require that any individual who wishes to carry a handgun legally to first pass a background check, submit to fingerprinting, take a state-mandated class, and pay a fee in order to exercise their rights. The goal of any 2nd Amendment activist worth his or her salt regardless of their views on the tactic of open carry ought to be to remove government roadblocks between citizens and their rights. In my opinion, this bill misses the point by presupposing that the underlying issue is how individuals ought to be “allowed” to carry, which is probably due to the ongoing public debate over open vs. concealed. I have my tactical and social preferences for how individuals “ought” to carry their firearms responsibly, but I do not believe that I or the government has any place allowing or disallowing one form of carry or another. That decision ought to be left up to the individual citizen in a free society. So from the standpoint of liberty, HB 164 is not a good one. It may well be that HB 164 or a bill similar to it will be the best we can do. I personally won’t support any bill that requires licensing until that is the only option left that moves the ball forward.

HB 195 Submitted by Rep. Jonathan Strickland of District 92

HB 195 would totally eliminate the licensing requirement and allow for true “constitutional carry” within the state of Texas. What this means is that, if passed, any law abiding citizen would be allowed to carry a firearm open or concealed in places where only licensees are currently allowed to carry. From an individual liberty standpoint, this bill is exceptional. It would completely remove all of the bureaucratic roadblocks between Texans and their rights and bring us back to the true intention of the authors of the 2nd Amendment. It would make the mostly false reputation that Texas has enjoyed in pop culture as the most “gun friendly” state in the union more of a reality.

Some of my peers who teach the Texas CHL class as part of their business will oppose this bill because it will make it such that more “untrained” people will be carrying guns in the public space. I not only disagree with this from the perspective of individual liberty, but because I believe that state-mandated training is always substandard at best and actually stifles the goal of having more properly “trained” individuals with guns in society. Most of the people who take the CHL class believe that they are as “trained” as they need to be because they met the standard set forth by the state. In my experience, it is only a select few licensed individuals who actually take the steps necessary to really prepare themselves for a worst case scenario beyond what the 4-6 hour CHL class can provide. As such, I do not believe that removing a training requirement would significantly decrease public safety as it will remain the case that responsible armed citizens will seek out proper training on their own accord without prodding from the state. It will also remove the false sense of security that people get from being “certified” by the state.

Initially, the only issue I saw with removing the licensing requirement is that it would cause a problem for reciprocity. The only way that we are going to maintain some of the agreements we have with other states that recognize our license is if we maintain a training requirement, albeit optional for those who wish to obtain a license. The text of HB 195 does not actually eliminate the licensing process at all, it merely removes the licensing requirement. As such, I see no issue with the bill from the standpoint of reciprocity. Where it may run into significant issues is with its changing of the wording in relation to carrying a firearm while under the influence of alcohol or it’s changed wording of “reasonable suspicion” to “probable cause” as it relates to an officer’s ability to disarm a citizen. These are minor issues that can be addressed for the good of the bill as a whole at any rate.

What Needs to Happen

I am of the opinion that constitutional carry as espoused by HB 195 needs to become a reality in the state of Texas. However, I am also of the opinion that the licensing process needs to remain intact. This can happen if the licensing process remains intact but becomes optional for those individuals who wish to obtain a license for the purpose of retaining reciprocity with other states, as it would with HB 195. No Texan should be compelled to jump through hoops in order to exercise their rights within the state of Texas, but we must recognize the reality that constitutional carry in the 50 states is not coming anytime soon. As such, it would behoove us to leave the door open for a licensing process that maintains our relationship with other “less-evolved” jurisdictions. I am aware that this may sound like I am asking to “have my cake and eat it too”; but I don’t believe free people bake cakes with the intent of just letting them sit out and spoil. HB 195 may serve to expose those lawmakers and their supporters who really misunderstand the underlying issue of individual liberty and just seek to appease the masses by “allowing” open carry. I cannot state clearly enough that how an individual chooses to exercise their rights is incidental to removing the roadblocks that prevent them from doing so. If I had my druthers, I would like to see the training program even in an optional license become what it is in other states where there is a list of classes that are allowed as opposed to one standard class for all; but that is for another debate.

What Might Happen

HB 164 will be the easier sell because it doesn’t radically change what is already on the books. An unfortunate part of politics is that you rarely get all of what you want. The advocates for this piece of legislation who oppose constitutional carry as laid out by HB 195 will undoubtedly make the argument that HB 164 is “better than nothing” and could possibly lay the framework for a future debate as to keeping or abolishing the licensing requirement as a stand-alone issue. Obviously there is an aspect to that argument that just “kicks the can down the road” and proponents of constitutional carry like myself are less than confident that legislators will revisit the underlying issue if they think this “fixes things” for enough people. That being said, if it shakes out such that it looks like HB 164 is what will pass and that we have to live with that small victory or get nothing, I will be inclined to take what we can get. We would have liked to have had constitutional carry back in the 90’s but I wouldn’t have made it my cross to die on if it meant having no provision for concealed carry at all. In other words, it’s a compromise that I’m not happy about, but I’m willing to begrudgingly live with it. I think we still need to push for constitutional carry as outlined by HB 195; but I’m not naïve enough to believe that will be an easy battle. This is an unfortunate byproduct of making the debate seem like it’s just about being “allowed” to open carry when that is really just one piece of it.

What Shouldn’t Happen

Opinions on this issue are strong and advocates for open carry (OCT, CATI) are notoriously vocal. Because of our opposition to their chosen form of speech, some less vociferous advocates for constitutional carry such as me are often at odds with our more obnoxious brothers in arms. But make no mistake, we are fundamentally in agreement as to what needs to happen, just not about how to get there. The situation we face reminds me of the HBO series John Adams where we saw the stately, well-spoken John juxtaposed to his rabble rousing cousin Samuel with his Sons of Liberty in the episodes that depicted pre-revolution Boston. Though I think the comparison is probably too generous, there are some parallels between the Sons of Liberty and the open carry activists especially as it relates to their tactics of antagonism toward the authorities. They are essentially the ones throwing rocks at the British garrison prior to the Boston Massacre or tar and feathering British ship merchants for bringing English tea into the harbor. While their tactics do draw a crowd and bring publicity to the cause, it has a tendency to unnecessarily escalate tensions that don’t actually serve to move the ball forward. Folks like me, if I may be so bold, are more akin to John Adams in our philosophical approach to the contentious subject matter at hand. What happened eventually in Boston was a uniting of the two factions toward a common goal leading up to the First Continental Congress and eventually resulted in the drafting of the Declaration of Independence. This same dynamic is possible as we go into the legislative session in January but based on what I see online, it seems unlikely. What I see happening, which is exactly what shouldn’t happen if we want to win, is a hardline push for constitutional carry from groups like OCT and CATI that shouts down any opposition, seeks no compromise, and antagonizes law makers and law enforcement alike. I hope I am wrong but I see no signs based on my personal interactions with these groups that indicate that they see me and those like me as allies. If this bickering continues and we can’t find a way to come together like our forefathers in Boston did, then we are likely to find our own “unite or die” moment ending negatively. If this happens, it will be unlikely that the legislature will take up the issue again anytime soon.

Conclusion

In summary; there are two bills that have been proposed that deal with open carry in two different ways: HB 164 and HB 195. HB 195 would bring about true constitutional carry, eliminating the requirement to have a license to carry a firearm open or concealed. HB 164 simply works open carry into the existing licensing structure. I hope to see constitutional carry in Texas with the option of obtaining a license from the state for the purpose of reciprocity. Based on the political climate, HB 164 with its retained licensing requirement may be the only bill that has a chance to make it to the floor for a vote, which is not ideal, but I will be “ok” with if it comes to that. What will kill the whole process is if the venomous bickering between open carry advocacy groups and other less obnoxious 2nd Amendment advocates takes center stage. Unfortunately, I believe the latter to be the most likely outcome based on what I have seen personally. I hope that my cynicism is unfounded but we shall see very shortly. Wherever you stand on the issue; be sure to let your voice be heard in a responsible way, namely by notifying your state representative and telling them what you want to see. That will be the next letter I write after posting this blog. You don’t need to carry a rifle to get involved, but you can’t just sit on the sidelines either. Get up, get active, and let your voice be heard. Expect many changes and revisions to the bills listed here leading up to the legislature as well as other similar bills and even proposed constitutional amendments to be presented. I will do my best to weigh each option as they present themselves and make an informed decision as to what I will support, as should you.

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