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  • 5 Nov 2013

In late October, the organization Open Carry Texas held a gun-rights rally outside the state Capitol. The result was the arrest of two of its members for criminal trespass.

Open Carry Texas is a gun-rights group that, according to its website, is committed to the “safe and legal carry of firearms openly in the State of Texas.” Its purposes include educating the public about individual rights to carry certain firearms, and convincing legislators to pass less restrictive laws when it comes to the open carrying of firearms.

What happened in Austin, according to the police, is that during the course of the demonstration, two men were openly carrying pistols, which were described by troopers as “suspected deadly weapons.” They also say they gave the men the opportunity to leave the area, but the men refused, and also refused to identify themselves. Their arrest followed.

Members of the group, however, say that the pistols were not deadly weapons, and are not even within the statutory definition of firearms, since they were manufactured prior to 1899. Antique firearms are exempted from the definition under section 46.01(3) of the Texas Penal Code. Their contention is that since the pistols are not firearms (and hence also do not fall within the definition of handguns), the statutory prohibitions on carrying certain weapons is simply inapplicable to the situation presented during the rally.

Some may believe that the confrontation was prompted by the desire on the part of the group to bring its challenge to one or more of the state’s gun laws to the forefront. The challenge would pit the open carry laws against the provisions in the state and federal constitutions guaranteeing the right to bear arms. This may or may not be the case, although we note that the basis for the arrest was not a violation of the gun laws, but was rather for criminal trespass. How the prosecutor is going to attempt to prove a case against the two is anyone’s guess, but there may be more to the case factually than has been revealed to date.

In any event, in addition to the constitutional and statutory provisions at issue in cases such as this, municipalities, including Austin, have their own regulations that can affect the legality of certain behavior in public places. We’ll be interested to see how the case is ultimately resolved.

Law Office of David D. White, PLLC
1205 Rio Grande Street
Austin, TX 78701
(512) 369-3737

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