By Dean Weingarten
Historically, the right was lost in the rewriting of the Texas Constitution in 1871 by the reconstruction government.
After the reconstruction government was voted out, then driven from office by an impromptu militia, the Texas Constitution was rewritten again, but a loophole was left in that allowed the wearing of sidearms to be regulated.
The reconstruction law was never repealed, so the current Texas Constitution only protects the carrying of long arms such as rifles and shotguns. Definitions in the law do not include black powder revolvers as arms that are prohibited. Here is a discussion at opencarrytexas.org about that issue. Texas is one of only five states that explicitly prohibits the open carry of sidearms.
The Andrews police chief, Dolphus “Bud” Jones, says that he supports the right to keep and bear arms, but. It was the arrest of a man who was openly carrying a rifle that brought the City of Andrews to the attention of Come and Take it America (CATI). The man who was arrested was Joey Posey, a veteran who had served with the 101st Airborne Division. He was deployed once to Iraq in 2003. It appears that the powers that be in Andrews, Texas, are not quite sure how to react to people exercising their right to bear arms under the Texas and United States constitutions. While Joey Posey was arrested, required to post bail, his concealed carry permit suspended, his legally concealed pistol and legally carried rifle and pocket knife impounded, he has not been charged with any crime. Over two months have passed and he continues in this legal limbo, though his pocket knife has been returned.
When I talked with James Franklin, founder of the Midlands/Oddessa branch of CATI, he said that there are seven cases pending in Texas where people have been arrested and their firearms confiscated/impounded, but no charges have been filed. He said that some of his members have been told by counsel that it may be two years before they are able to resolve the issue, and that charges may never be filed.
CATI decided that education was required for the City of Andrews. An open carry march was held in Andrews, at the end of which the marchers were told that they needed a permit in order to march. The group had a discussion with Police Chief Jones, and thought that it was understood that individuals openly and peacefully carrying long guns would not be arrested. It was while scouting for the second march that Michael Keoughan, another veteran, was arrested a few days later on 22 January. As of February 9th, he has not yet been charged, though his rifle remains impounded. The second march was held on 25 January, without further arrests.
I asked James Franklin about their interactions with police. He said:
“More than 9 out of 10 of our interactions with police are positive.”
CATI has an article with links to YouTube videos and some audio showing arrests and interaction with Police Chief Dolphus “Bud” Jones. After watching the video and listening to the audio, it seems that the Andrews Police may believe that receiving 911 calls are sufficient to arrest people for “disorderly conduct”. Then again, as no charges have been filed, they may be becoming educated on the state of the law in Texas.
There is not much open carry case law in Texas. The last decision that sets precedent appears to be a 2008 case in the 5th circuit, Grieve v. State . It is clear that a 911 call is not sufficient, in itself, to show that the display of arms meets the criteria of “calculated to cause alarm”.
Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree.
Requests for information under the Texas Public Information Act (PIA) have been made to obtain the 911 calls that police have reported. Those PIA requests have not yet been answered .
Another open carry march is scheduled for the 15th of February. A permit has been obtained. The marchers will assemble at 2 pm at the courthouse on Main Street. Marchers are asked to carry their long arms slung over their back, with muzzles down, and a chamber flag in place. James Franklin says:
“We have a special interest in keeping Andrews active.”
James also stated that they are in the process of obtaining several more permits for open carry marches in Andrews. He said that the response in Andrews, outside of the arrests of individuals, has been quite positive. He believes that the education process is working, that more and more people are coming to understand that they have a right to openly carry long guns and black powder revolvers under the Texas Constitution and Texas law.
His optimism is supported by the fact that both likely candidates for governor of Texas, Greg Abbot (R) and Wendy Davis (D) have said that they support the restoration of legal open carry of modern sidearms in Texas.
©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch
c2014 by Dean Weingarten: Permission to share is granted when this notice is included. Link to Gun Watch
About Dean Weingarten;
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.