9.3 Right to bear arms

The right to bear arms is a cornerstone of American and Texan constitutional rights. Rooted in English common law, this right was enshrined in the Second Amendment and has been subject to ongoing interpretation and debate throughout U.S. history.

Texas takes a strong stance on gun rights, with its constitution providing explicit protection for individual firearm ownership. While both federal and state laws place some restrictions on gun ownership, Texas generally favors broader gun rights and has laws allowing concealed and open carry.

History of right to bear arms

• The right to bear arms has deep roots in English common law and the American colonial experience
• The Second Amendment to the U.S. Constitution, ratified in 1791, enshrined the right to keep and bear arms as a fundamental individual right
• Throughout U.S. history, the interpretation and scope of the Second Amendment have been subject to ongoing debates and legal challenges

Second Amendment protections

• The Second Amendment states, "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"
• The amendment has been interpreted to protect an individual's right to possess firearms for self-defense, hunting, and other lawful purposes
• The U.S. Supreme Court has affirmed that the Second Amendment protects an individual right to keep and bear arms, independent of service in a militia (District of Columbia v. Heller, 2008; McDonald v. City of Chicago, 2010)

Federal vs state interpretations

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• While the Second Amendment applies to the federal government, the Supreme Court has also held that it applies to state and local governments through the Fourteenth Amendment's Due Process Clause (McDonald v. City of Chicago, 2010)
• States have the authority to regulate firearms within their borders, but such regulations must not infringe upon the core protections of the Second Amendment
• The interpretation and application of the Second Amendment may vary between federal and state courts, leading to differing levels of gun rights and regulations across states

Texas constitutional provisions

• The Texas Constitution also protects the right to keep and bear arms, with Article 1, Section 23 stating, "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State"
• This provision affirms the individual right to possess firearms for self-defense and the defense of the state
• The Texas Constitution's protection of gun rights is considered stronger and more explicit than the Second Amendment

Article 1, Section 23

• Article 1, Section 23 of the Texas Constitution provides a clear and unambiguous protection of the right to keep and bear arms
• This section emphasizes the importance of the right to bear arms for both personal defense and the defense of the state
• The provision has been interpreted to limit the state's ability to restrict gun rights, although some regulations are still permissible if they do not infringe upon the core right

Restrictions on right to bear arms

• Despite constitutional protections, both federal and Texas laws place certain restrictions on the right to bear arms
• These restrictions are aimed at promoting public safety and keeping firearms out of the hands of individuals deemed to pose a heightened risk to society
• Restrictions may be based on factors such as criminal history, mental health, and domestic violence convictions

Felony convictions

• Federal law prohibits individuals convicted of a felony from possessing firearms
• Texas law also bars felons from possessing firearms, with some exceptions for individuals who have had their rights restored through a pardon or other legal process
• The rationale behind these restrictions is that individuals who have committed serious crimes have demonstrated a disregard for the law and may be more likely to misuse firearms

Mental health adjudications

• Federal law prohibits individuals who have been adjudicated as mentally defective or committed to a mental institution from possessing firearms
• Texas law also restricts firearm possession for individuals who have been involuntarily committed to a mental health facility or found to be a danger to themselves or others due to mental illness
• These restrictions aim to prevent individuals with severe mental health issues from accessing firearms, as they may pose a risk to themselves or others

Domestic violence convictions

• Federal law prohibits individuals convicted of a misdemeanor crime of domestic violence from possessing firearms
• Texas law also prohibits individuals subject to a protective order related to family violence from possessing firearms for the duration of the order
• These restrictions recognize the heightened risk of gun violence in domestic abuse situations and seek to protect victims by keeping firearms away from abusers

Concealed carry laws in Texas

• Texas allows individuals who meet certain requirements to carry concealed handguns in public
• To carry a concealed handgun, individuals must obtain a License to Carry (LTC) from the Texas Department of Public Safety
• Concealed carry is permitted in most public places, with some exceptions for sensitive locations

Eligibility requirements

• To be eligible for an LTC, applicants must be at least 21 years old (or 18 for military members)
• Applicants must pass a background check and complete a training course covering firearm safety, laws, and proficiency
• Individuals with felony convictions, certain misdemeanor convictions, or a history of mental illness are generally ineligible for an LTC

Prohibited locations

• Even with an LTC, concealed carry is prohibited in certain locations, such as schools, polling places, and secured areas of airports
• Private property owners may also prohibit concealed carry on their premises by providing proper notice (30.06 signs)
• Concealed carry may be restricted in some government buildings and meetings, depending on the specific location and circumstances

Open carry laws in Texas

• Texas allows individuals with an LTC to openly carry handguns in a hip or shoulder holster
• Open carry became legal in Texas on January 1, 2016, following the passage of House Bill 910
• Like concealed carry, open carry is permitted in most public places, with some exceptions

Eligibility requirements

• The eligibility requirements for open carry are the same as those for concealed carry
• Individuals must have a valid LTC to openly carry a handgun in public
• The handgun must be carried in a belt or shoulder holster, and the individual's LTC must be displayed upon request by law enforcement

Prohibited locations

• Open carry is prohibited in the same locations as concealed carry, such as schools and secured areas of airports
• Private property owners may prohibit open carry on their premises by providing proper notice (30.07 signs)
• Some government buildings and meetings may also restrict open carry, depending on the specific location and circumstances

Campus carry laws in Texas

• In 2015, Texas passed Senate Bill 11, allowing concealed carry of handguns on public college and university campuses
• The law took effect on August 1, 2016, for four-year institutions and August 1, 2017, for community colleges
• Campus carry has been a controversial issue, with supporters arguing for self-defense rights and opponents expressing concerns about safety and academic freedom

Public universities vs private institutions

• The campus carry law applies to public colleges and universities in Texas
• Private institutions have the option to opt-out of campus carry and maintain their own policies regarding firearms on campus
• Most private colleges and universities in Texas have chosen to opt-out and continue prohibiting firearms on their campuses

Opt-out provisions

• Public colleges and universities cannot completely opt-out of campus carry, but they can establish reasonable rules and regulations regarding the carrying of concealed handguns on campus
• These rules may include designating certain areas as gun-free zones, such as laboratories or childcare facilities
• Institutions must consult with students, faculty, and staff when developing campus carry policies and must justify any gun-free zones they establish

Firearm sales and transfers

• Federal and Texas laws regulate the sale and transfer of firearms to ensure that they do not fall into the wrong hands
• Licensed firearms dealers must conduct background checks on prospective buyers to verify their eligibility to possess a firearm
• Some exceptions exist for private sales and transfers, which have led to debates about the "gun show loophole"

Background check requirements

• Licensed firearms dealers must conduct a background check on prospective buyers through the National Instant Criminal Background Check System (NICS)
• The background check verifies that the buyer is not prohibited from possessing a firearm due to factors such as criminal history or mental health adjudications
• In Texas, the background check process is typically completed within minutes, allowing the sale to proceed if the buyer is eligible

Private sale exceptions

• Federal law does not require background checks for private sales or transfers of firearms between individuals
• In Texas, private sellers are not required to conduct background checks on buyers, as long as they do not know or have reason to believe that the buyer is prohibited from possessing a firearm
• This exception has been criticized as a "gun show loophole," as it allows individuals to acquire firearms without undergoing a background check

Preemption of local firearm regulations

• Preemption laws determine whether state or local governments have the authority to regulate firearms
• In Texas, state law generally preempts local ordinances related to firearms, meaning that cities and counties cannot enact gun laws that are stricter than state law
• This preemption has been a point of contention, with some local governments seeking greater authority to address gun violence within their communities

State law vs local ordinances

• Texas has a strong preemption statute that prohibits local governments from regulating the sale, possession, transfer, or ownership of firearms
• Local governments may not enact ordinances that are inconsistent with state law, such as banning certain types of firearms or requiring local background checks
• However, local governments may regulate the discharge of firearms within their jurisdiction and in some cases, the carrying of firearms in certain municipal buildings or parks

Debates over gun control measures

• Gun rights and gun control are contentious issues in Texas and across the United States
• Proponents of gun rights argue that the Second Amendment protects an individual's right to keep and bear arms and that gun ownership is essential for self-defense and deterring crime
• Advocates for gun control maintain that reasonable regulations are necessary to reduce gun violence, prevent mass shootings, and keep firearms away from dangerous individuals

Proponents vs opponents

• Proponents of gun rights, such as the National Rifle Association (NRA) and Texas State Rifle Association (TSRA), oppose most forms of gun control, arguing that they infringe upon constitutional rights and do little to prevent crime
• Gun control advocates, such as Everytown for Gun Safety and Moms Demand Action, support measures like universal background checks, red flag laws, and assault weapons bans, believing they can reduce gun violence without undermining Second Amendment rights
• The debate often centers on balancing individual rights with public safety concerns and interpreting the scope of the Second Amendment in light of modern firearms and societal challenges

Proposed legislation in Texas

• In recent years, Texas has seen various proposals related to gun rights and gun control
• Some bills have sought to expand gun rights, such as allowing constitutional carry (carrying a handgun without a permit) or reducing penalties for inadvertently carrying a firearm in prohibited locations
• Other proposals have aimed to strengthen gun control measures, such as implementing red flag laws, closing the gun show loophole, or requiring safe storage of firearms
• The success of these bills often depends on the political climate and the balance of power between gun rights and gun control advocates in the Texas legislature