Open Carry becomes Law in Texas. Is it a Good Idea?
On March 17th, the Texas Senate passed Senate Bill 17, sponsored by state Senator Craig Estes (R-Wichita Falls). This "open carry" bill now moves to the Texas House for consideration. The House Committee on Homeland Security & Public Safety held hearings this week on House Bill 910, sponsored by state Representative Larry Phillips, the House companion open carry bill, however it has not received formal action as of yet.
Senate Bill 17 removes the requirement for persons licensed to carry a handgun to keep their handguns concealed and gives them the option of carrying them either wholly or partially visible in a belt or shoulder holster. While Texas is often portrayed as a “gun friendly” state, it was not until 1995 that the 1871 ban on pistols was lifted to allow the concealed carrying of handguns. Texas is one of only six states that specifically ban the open carrying of handguns.
The divisive nature of gun control naturally sparks a heated debate about gun laws. Provided the open carry bill gets passed through the House, what does this legislation mean for the citizens of Texas? Let us take a look at the pros and cons and possible legal implications.
Pros
Reasons for those advocating to allow open carry include greater comfort, easier to access, and offers more choices in firearms. But, the primary reason usually centers on the ability of individuals to defend themselves and others from violent crimes. Supporters of open carry laws contend that having armed law abiding citizens will lead to a decrease in crime because of the belief that if criminals know their potential victims are armed, they may be less likely to commit crimes.
Cons
On the other side of the debate, reasons not to allow open carry include the giving up the moment of surprise, being potentially disarmed and the possibility of being a target for an active shooter. Other concerns include the possible shock of citizens seeing more firearms and the danger of the carrier either using the firearm criminally or irresponsibly handling, carrying, or deploying the firearm. If a recent poll taken by the University of Texas and The Texas Tribune is truly representative of Texas citizens, then only 32 percent of Texans would allow open carry (some with a license and some without).
Legal Effect
Whichever side you fall in the debate, the legal implications must also be considered. For example, how does openly carrying your hand gun in a belt or shoulder holster affect your Fourth Amendment right against unreasonable searches and seizures? Could your openly visible firearm give police reasonable suspicion to stop and search you? In 2013, the Fourth Circuit Court of Appeals found that carrying a firearm in an open carry state does not create reasonable suspicion. In that case, Nathaniel Black was standing with a group of friends in North Carolina (an open carry state). One member of the group was openly carrying a firearm. The group was stopped based on a police officer's belief that the law prevents felons from possessing firearms and the officer could not know whether someone was in lawful possession of a firearm without checking. Additionally, the officer believed that because one of the other men was openly carrying a firearm, there might be another firearm on Nathaniel Black. The court of appeals held that “[b]eing a felon in possession of a firearm is not a default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.”
It is now a waiting game to see whether this latest attempt to remove the 144 year old ban on open carry of handguns will succeed and what potential legal battles will unfold.
***This blog article courtesy of J. Chris Orona. Mr. Orona is a law clerk at Nag and Scalise, and a Third-Year Law Student at Texas A&M University School of Law in Fort Worth, Texas.