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Course Objectives Firearm Emotion

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Course Objectives Firearm Emotion Got Guns: Open Carry of Firearms in Texas Course Objectives 1. Recognize the Emotion surrounding open carry (guns) 2. Firearm carry in Texas ‐ current law 3. Municipal prosecution involving firearms 4. Pending legislation Firearm Emotion 1. Passionate and polarizing 2. Love/ hate 3. Glamorized/ Demonized 4. Guns are a part of political/Social/ cultural history 1 Derek Poe stopped by GameStop in Parkdale Mall before going to the store he owns in the mall, Golden Triangle Tactical. While at GameStop, he was stopped by police officers and the AR‐15 that was slung around his back was seized. Poe says he was just exercising his right to open carry a long rifle. Police charged him with disorderly conduct by display of a firearm “In a manner calculated to alarm.” Poe disagrees saying his rifle was facing barrel down on his back and his hands weren’t even on the gun. “It was clearly obvious I didn’t have criminal intent. I had a drink in one hand and a bag in the other. I didn’t commit a crime. I legally carried a long arm in Texas,” Poe said. Detectives say witnesses gave statements that they were “terrified” and “thought they were going to die.” Video or Scholarly text that FOOTNOTE illustrates the close connection between legal concepts and the use of Firearms Loaded Guns are a lot like lawyer’s mouth. A slight depression on the trigger will cause either to shoot. FOOTNOTE The right to bear arms is fundamental and includes… Actually bearing… “Holding “ onto the Firearm 2 3 Homicides ………. 2013 CDC statistics Homicides (by all means) 16,121……. (5.1 per 100,000 population) Homicides ( by firearms ) 11,208 …… (3.5 per 100,000 population) Still not in the top 15 of things that kill us 4 Firearms: Myths, Legends, Media The Gun that won the West: Winchester Guns don’t kill people , people kill people “Abe Lincoln may have freed all men, but Sam Colt made them equal” Remington Firearms since 1816: Also typewriters, razors , computers: Dragnet , Adam 12, Chips, T.J. Hooker, Miami Vice, Cagney and lacy, Hill Street Blues, NYPD Blue, Blue Bloods, Hawaii 50, CSI, NCIS Jessie James, Wyatt Earp, Davy Crockett, Billy the Kid, Bonnie and Clyde, Al Capone Have Gun… Will Travel, Wanted: Dead or Alive, Gun Smoke, Roy Rogers, Gene Autry, Bonanza, The Virginian, Lonesome Dove …………..all things John Wayne Old West: Don’t Take Your Guns to Town Old West: Don’t Take Your Guns to Town 5 Old West: Don’t Take your guns to Town The Beginning of municipal prosecution OpenCarry.org As people on both sides of the debate regarding open carry—the practice of carrying firearms in plain view—have been turning up the heat, more companies are being forced to take a side. Gun‐rights advocates see the practice as a way to normalize gun ownership and deter crime, while gun‐control activists believe carrying guns in stores and restaurants is disruptive to the public and encourages violence. Recently, Target, Starbucks and Chipotle have asked their patrons not to bring their guns. After petitions by gun‐control groups such as Moms Demand Action for Gun Saturday Night live …..1st Show 1975 6 CURRENT TEXAS FIREARM LAW Guns are prohibited where? Penal Code Section 46.01(a) School grounds Polling places including early voting Court including offices Racetrack premises Controlled area of an airport Within 1000 feet of a state execution on the day of the execution But, I have a Texas CHL ………. CHL holder cannot carry a handgun Openly On premises licensed to sell alcohol if 51% of business revenue generated by sales of alcohol (must be noticed in writing) If intoxicated 7 Footnote Guns and Alcohol Finding of Fact: A loaded gun is dangerous when the owner is primed with Whiskey But, I have a Texas CHL ………. CHL holder cannot carry a handgun Openly On premises licensed to sell alcohol if 51% of sales comes from alcohol (must be noticed in writing) If intoxicated At sporting event (unless the handgun is used for the event) At a correctional facility At work , if the boss says no (lock it in the car) If notice received pursuant to Penal Code sec 30.06 ◦ On premises of nursing home or hospital (administration and approve in writing) ◦ Amusement Park ◦ Established place of religious worship Required Language for “30.06” Notice to CHL Texas Penal Code sec 30.06 (c) (3) Exact Language is mandatory English and Spanish Contrasting colors 1” high letters Posted in a conspicuous place 8 What about rifles and shotguns Article 1 Sec 23 of the Texas Constitution “Every Citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. “ “Legislature ….regulate the wearing of Arms” What does that mean ? Wearing guns (carrying) is a state legislative function (preemption of municipal regulation) Rifles, Shotguns , and handguns are restricted by the legislature in penal code 46.01 (a) Handgun wearing is restricted by the legislature , carrying rifles and shotguns isn’t . The remaining body of State law does not impose restrictions on open carry of a rifle or shotgun in a public place. Translation: Texas is open carry for rifle and shotguns Footnote Handguns What you are wearing when you are “wearing” is important … ALSO, When shooting don’t stick out your tongue 9 Footnote 1. CHL ‐ concealed carry handguns Handguns 2. Without CHL ‐ concealed in a boat or car. [PC sec 46.02(a)] If not concealed Open carry of If engaged in crime……. (other than Class C) Handguns in Texas is currently prohibited…. If not on your premises or premises under your control If not inside or directly in route to a motor Concealed carry of vehicle or boat that you own or control handguns is permitted but has limitations Class A misdemeanor Municipal Regulations and Prosecution “……tonight we’re having leftovers” What is the current status of municipal regulation and prosecution Case Law – Constitutional Limitations Preemption and prohibitions from state law Class C theories of prosecution ‐ Possibilities or Pot holes FOOTNOTE In Law as in Shooting …Speed is important, but So is accuracy 10 2nd Amendment is not unlimited, but…….. Heller 554 U.S. 570 (2008) the Second Amendment is an individual right intimately tied to the natural right of self‐defense. the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: a total ban on operative handguns in the home is unconstitutional 2nd Amendment applies to States thru 14th McDonald v. Chicago, 561 U.S. 742 (2010) Post‐Heller cases, several 2nd Amendment cases argued that the 2nd Amendment, should applied against state and local governments, through the 14th amendment, claiming that bearing arms was fundamentally “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions”. see Duncan v. Louisiana, 391 U.S. 145 (1968). McDonald Holding: The 2nd Amendment right recognized in Heller is applicable to the states through the due process clause … The central component of the 2nd Amendment right to arms bear arms for self defense is a basic right, recognized by many legal systems from ancient times right No unrestricted right to carry a gun Texas limits places where firearms can be carried Also some people Convicted felons person convicted of family violence mentally ill persons probationers and parolees members of Criminal gangs (see Foot Note following) Certain guns Machine Guns, short barrel rifles and shotguns 11 FOOTNOTE Burden is on the State to Prove Criminal Gang activity Video evidence presented herein is insufficient Statutory preemption ‐ Texas Local Government code Sec 229.001(a) transfer private ownership, keeping, transporting, licensing, or registration of firearms, air guns, ammunition including supplies Sec 229.001 (e)(1) and (e)(2) discharge of a firearm or air gun at a sport shooting range Statutory Prohibition ‐ Texas Local Government Code Express prohibition on Municipal authority to regulate discharges of firearm LGC Sec 229.002 City may not regulate the discharge of a firearm or other weapons in the ETJ or in areas annexed after 1981 prohibition applies to 1. Shotguns, air rifle or pistol, BB gun, bow and arrow on 10 acres and at least 150’ from a residence or occupied bldg. 2. Rifles and pistols on 50 acre tracts and more than 300’ from a residence or occupied bldg Same year as Agriculture Protection Act: A City can’t apple nuisance laws to agriculture operations if it would negatively affect the operations 12 Municipal regulation at “OK” Corral… A Case of Federal Preemption What type of City General Law Statutory City Local Government Code 229 City authorization to regulate firearms Discharge of Firearms in City Limits (except sport shooting ranges annexed or in ETJ after 1981) Zoning restrictions –if not circumventing preemption in transfer, ownership, transportation Use of firearms and Air guns in insurrection, riot, disaster (public health and safety) Carrying a firearm (except to or from lawful hunting or sporting event by non CHL holder at a: ◦ Public Park ◦ Public Meeting of Municipality, county or other governmental body ( for CHL holders notice 30.06) ◦ Political Rally, parade, official political meeting ◦ Non firearm related – schools or college event, professional athletic event Hours of operation of a sport shooting range (must compare to other non alcohol business regulations) Carrying an air gun by a minor on public property or private property w/o consent of owner.
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