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“Constitutional Carry” Explained

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Texas has long been considered a “gun-friendly” state.

But according to the latest Guns and Ammo Magazine rankings, the Lone Star State remains consistently outside the top ten on the pro-gun meter.

Vermont, a deep “blue” Democrat state, and Missouri, New Hampshire, and Florida, “purple” swing states, are ranked higher than Texas on the list. But the list is from 2015, and since then, we’ve seen monumental changes on the gun-rights front as more states passed Constitutional Carry.

But what is Constitutional Carry?



The U.S. Constitution guarantees the right to bear (carry) arms in the Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Texans can legally carry handguns right now, but they must first pay a fee of $140 plus the cost of the class (roughly $75) and obtain a permit from the state. Activists say this “permission slip” has transformed the Second Amendment into a privilege rather than a right, and that licensing should therefore be technically unconstitutional. But knowing they are unlikely to win that battle in the courts, they have taken to legislative action to repeal the permit requirement.

The basic premise of Constitutional Carry is that a person who can legally own (keep) a handgun, should be able to legally carry (bear) that handgun without first obtaining government permission.

There are currently two bills in the Texas House being touted as “Constitutional Carry” legislation. We will get into those in a minute, but first, let’s looks at how gun rights in Texas compare to other states.

Concealed Carry

All 50 states have codified the legal carrying of concealed weapons. Illinois was the last state to pass a concealed carry law – only after required to do so by the U.S. Supreme Court.

Open Carry

There are two types of Open Carry states — those that require a carry permit for concealed and open carry, and those that require a permit only for concealed carry (and no permit is needed for open).

According to OpenCarry.org, there are currently 45 states where the open carry of handguns is legal. The only 5 states that have outlawed open carry are California, Illinois, New York, Florida, and South Carolina.

Of the 45 open carry states, 30 of them require a permit only for the carrying of concealed handguns.

Texas is one of the 15 states in America that requires a permit for concealed and openly carried handguns.

Constitutional Carry

There are now 13 states which have passed Constitutional Carry laws, repealing the permit requirement for open and concealed carry. Those states are:
Vermont (since 1791 and reaffirmed by the state Supreme Court in 1903)
Montana (since 1991, but only outside city limits)
Alaska (since 2003)
Arizona (since 2010)
Wyoming (since 2011, but for residents only)
Arkansas (since 2013, disputed)
Kansas (since 2015)
Maine (since 2015)
West Virginia (since 2016)
Idaho (since 2016)
Mississippi (since 2016)
Missouri (since 2016)
New Hampshire (since February 2017)
Utah passed the legislation in 2013 but it was vetoed by a Republican governor. If the mansion ever changes hands, that state would seem ready to pass the legislation quickly.

Texas

Texas is among the roughly 10 states debating Constitutional Carry in 2017.

The Republican Party of Texas prioritized Constitutional Carry in its 2014 convention. State Representative Jonathan Stickland and State Senator Don Huffines filed companion legislation in the Texas Legislature in 2015. Neither bill received a hearing.

At the time, activist Rachel Malone of Texas Firearms Freedom took a copy of the bill to Gov. Greg Abbott and got his tacit approval in the form of an autograph across the bill text.

Lt. Governor Dan Patrick received thousands of emails and phone calls asking for a hearing in the Senate, but Sen. Joan Huffman refused to give it a hearing in her State Affairs Committee. Patrick declined to use his influence to bring it out onto the Senate floor.

In the House, Speaker Joe Straus sent the bill to Rep. Larry Phillips’ Homeland Security and Public Safety committee. Chairman Phillips refused to schedule a hearing.

This session, Rep. Stickland has refiled Constitutional Carry as HB 375. There is another bill – HB 1911 – filed by Rep. James White which is being touted as Constitutional Carry as well.

Neither bill abolishes the License to Carry system because Texans still need the permit to carry in the 38 states without Constitutional Carry. The bills simply make the license optional.

But there are some differences between the two bills.

HB 375 states that anyone who is legally eligible to own a firearm is legally able to carry one without a permit. This means anyone who can’t purchase a gun currently would still be unable to do so, and would still be unable to carry one.

HB 1911 states that the carry permit is no longer required for those who meet the qualifications to get one. This bill is a bit more restrictive.

Notes: See Texas Penal Code Sections 46.04 and 22.10, and Texas Government Code Section 411.172.

Conservatives who prefer HB 375 argue that non-violent offenses should not cost someone his or her right to self-defense, especially when there hasn’t even been a conviction. They also argue that tying the right to carry to the current licensing criteria is a bad idea because it allows the legislature to come back and tighten those requirements later.

Groups like the National Association for Gun Rights and its affiliate Texas Gun Rights, Open Carry Texas, Lone Star Gun Rights, and Texas Firearms Freedom, and Gun Owners of America are promoting the Stickland bill, HB 375. Groups listed have hosted press conferences this year to bring attention to the bill.

The National Rifle Association and its state affiliate Texas State Rifle Association appear to be lining up to promote White’s HB 1911.

But will either of these bills pass this session? Rumors are swirling around the Capitol that they might at least get a hearing. But Lt. Governor Patrick seems more interested in legislation lowering the licensing fee, rather than eliminating the licensing requirement altogether.

***UPDATE: We have been informed that Rep. White is working on a committee substitute which may address some of the concerns above.



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