By Nathan Barton
Please read the commentary “Carrying Concealed” is NOT a right…” first, to better understand my comments here.
As I said in the earlier article, the entire business of carrying concealed has been controversial for a very long time, and fought over constantly. We looked at Colorado. Now let us go on to Texas. It is a sad history. It is interesting, and seldom reported these days by either side.
For more than a century, Texas’ constitution specifically did not recognize the right to carry a concealed weapon. And the legislature failed to fix some bad laws, and the judicial system, the Nazgul, failed to protect the rights of Texans by failing to act against the legislature, while continuing to send innocent men and women to jail and prison for committing a “crime” that was not. The Texan Supreme Court, in a case called Masters v State, in essence said the same thing as the Ninth has regarding California. It is valuable to understand that, and how Texans were denied their God-given liberty for so many years. This was taught as “the right to keep and bear arms does not construe any right to carry a concealed weapon (to “wear” a weapon that is concealed). (Similar to Colorado.) And that “reasonable regulation” is acceptable.
In 1845, the Republic’s constitution contained this: Article I, section 13: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself and the State. There was a failed attempt to add: “Provided the Legislature shall have power to prevent the carrying of concealed weapons, under such restrictions as may be prescribed.”
This was changed in 1870, when a new constitution was established to allow Texas to be “readmitted” to the Union. The old provision was changed by adding a clause, so that it stated: “Every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the legislature may prescribe.”
(As an aside, even Texan media claims that a bill passed by the Reconstruction-era Carpetbagger (Republican) government in 1866 was a “black code” designed to disarm all blacks, and especially freedmen. It was not: it simply prohibited the carrying of arms on plantations, outside of a person’s home, without the agreement of the landowner. But the reputation and society and culture of Texas is demeaned and it is lumped with the racist black codes of states of the Deep South AND Yankeedom, who DID disarm their black populations (and of course there were still Northern States (loyal to the Union during the War) in 1866 that still ALLOWED slavery.)
Under this “minor” and “common sense” modification to the Constitution’s guarantee of rights, things immediately got out of hand: the road to tyranny was short and travel on it was fast. “An Act Regulating the Right to Keep and Bear Arms,” was approved on August 13, 1870, and made it illegal for one to “have about his person a bowie-knife, dirk or butcher-knife, or fire-arms, whether known as a six-shooter, gun or pistol of any kind” at any church or religious assembly, school, ball room “or other social gathering composed of ladies and gentlemen,” or election precinct. It got worse: on April 12, 1871, another law was passed, entitled “An Act to regulate the keeping and bearing of deadly weapons.”
Section 1 of the act provided in part: “Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor …. Provided, That this section shall not be so construed as to prohibit any person from keeping or having arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or revenue officers, and other civil officers, from keeping or having arms, while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage…”
Wow. Notice, however, that even this law (oh, so much like that of California or Ohio or NYC in modern times), did not prohibit the bearing of ALL arms: rifles, carbines, and shotguns were still allowed to be carried off of one’s own premises. That law, in various forms, remained on the books in Texas until 1995: 125 years!! Even though the Texans changed their constitution just five short years later, in part because of this awful law.
But It is interesting, and important to note, that this law was seldom enforced, at least outside of the larger towns and cities, for at least half a century. At first it was AmerInds and banditos that provided an excuse, and later rustlers and bootleggers (although more than a few people argued that corrupt State Police and sheriff’s deputies and town marshals also posed an “immedate and pressing threat” to law-abiding citizens. And later, the bit about “traveling” helped keep at least some people from being punished. (It is also interesting to note this was passed by a REPUBLICAN legislature and governor.)
As I touched on earlier, a good many abuses, not just concerning arms, caused Texans to again establish a new Constitution, that of 1876. This included: Article 1, Section 23. “RIGHT TO KEEP AND BEAR ARMS. 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.” There WAS an attempt to add “or prohibit” the wearing of arms, but it was defeated in the Convention as being immoral.
Yet despite the intentional weakening (as also attested to by the journals of the constitutional convention) of the power of the legislature, the 1871 law continued to be upheld by the Nazgul both of Texas and of the Federal bench, for 125 years: it was generally considered to be illegal to carry a handgun openly, or ANY arm concealed, and many people were arrested, charged, tried, convicted and punished for doing so. The courts failed to find that the 1871 law was “no law” because it violated both the US and the State constitutions. It was not until 1995 that PART of that law was repealed and concealed carry and open carry (though still immorally and unconstitutionally infringed upon) was allowed to citizens and visitors to Texas.
The moral of this story: the Courts and the Legislature are NOT our friends, and NOT the friend of liberty. And “reasonable regulations” are ALWAYS an attempt, and a precursor, to infringing on our liberties. But also, remember what I wrote in the article on the Ninth and California: If Texas is really abiding by the Federal Constitution, it and its counties and cities and towns have NO legitimate authority to require a permit for concealed carry OR open carry. The Texas Legislature might be able to legally (if not morally) regulate things like the kind of holster or sling or tiedown or dummy cord we are supposed to use – if they can demonstrate this really is to “prevent crime.” But they have no authority to prevent ANY one from bearing arms – and that includes carrying.