Illegal Arrest? Or Dubious Understanding of the Law?…Open Carry

Over the last 36hrs, Open Carry Texas tweeted that three of their members were “illegally arrested” for openly carrying “pre-1899 black powder revolvers” at the Texas Capitol. News of the arrest has quickly gone “viral.” was also there to record it and has posted video on their website and YouTube channel.


There are several video segments on YouTube and other sites in which Open Carry Texas members and even a DPS trooper can be seen reading Chapter 46 (Weapons) of the Texas Penal Code. Specifically, they are reading the definition of a firearm. The text of that section reads as follows:

“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

I hate to be the guy taking unpopular positions but, I honestly think the troopers on the scene made a reasonable call. My father (a retired, 32-year veteran cop), was well known in his department for saying that people often know just enough about their rights to go to jail. Experience has shown me the man knows what he’s talking about. I say that because as I read Chapter 46, the cap-and-ball revolvers may be replicas of pre-1899 firearms but, they are also handguns. Being that it is currently a Class A misdemeanor under Section 46.02 to carry a handgun openly in Texas, an arrest would seem reasonable to most police officers.

It should be noted that none of the people at the scene who were carrying long guns were arrested.  This would seem to indicate DPS troopers clearly recognized that openly carrying a long gun does not, in and of itself, constitute an offense under Texas law. Now having said this, the folks at Open Carry Texas can and should cite the definition of “Firearm” under Section 46.01 in their defense but, I am not a lawyer. There’s a good chance that because of what might be seen as the vaguarities of the law, charges may be dropped…Or not. Time will tell as this story is still in play.


12 thoughts on “Illegal Arrest? Or Dubious Understanding of the Law?…Open Carry

  1. Gary,

    The reasonable people involved in these protests seem to be doing some good. The more unreasonable people set us back with the 2nd Amendment. It is important during the protests to be polite and professional — not to taunt law enforcement or look like kooky “Occupy Wall Street” protestors, but like reasonable people with an honest issue. And there obviously is an honest issue. We do not want to create 2nd Amendment enemies by looking like raging nutters. As I read your words, it is clear that you understand this. Must help others to understand it.

    • Gary, It seems you are your fathers son. You read into what you read what you want to read. Federal law is not trumped by state law or by a persons ‘understanding’ as you seem to think. If it’s legal to carry a pre 1899 cap and ball revolver then it’s legal. The police have less knowledge than the people that wrote the laws and the lawyers that read them.
      It would be best though for persons that want to make a statement to carry a rifle or a shotgun in the open and not a pre-1899 revolver. I do not believe there is any reason not to carry a pre-1899 revolver but to keep peace it would be an even trade off to carry a rifle or shotgun in lieu of one.
      I’m going to assume now that you will also have a problem with a person carrying a rifle or shotgun now? Am I right?

      I believe in the proven statement:
      If you take our guns away, only the criminals will have them.
      If the criminals see our guns on our hip or over our shoulder, they’ll think twice before they act.

      It’s just common sense that even the animal kingdom lives by. You got a single water buffalo and a pride of lions will attack. You have several hundred water buffalo and the pride most likely will not attack or will be defeated. Seen it too many times to know any different.

      Let us be Americans and let us protect ourselves.

      Yes, there are some people that should never put a finger on a weapon. Criminals (past-present-future), mentally ill, and so on. But the rest of us, we should be able to protect ourselves.

      As my daddy once said, “when you need a cop in the next few seconds you can bet he’ll be several minutes away.” Hasn’t changed.


  2. Right here is the perfect blog for anyone who wants to
    understand this topic. You understand so much its almost hard to argue with you
    (not that I actually would want to…HaHa). You certainly
    put a fresh spin on a subject that has been discussed for decades.
    Great stuff, just wonderful!

  3. A black powder revolver is not a handgun.

    A handgun is defined as a firearm

    A firearm is defined as not a blackpoweder cap and ball

    Therefore he was not carrying a handgun

    Therefore the arrest was illegal

  4. There are too many laws, whether for guns or other issues. When nuances in the law must involve law enforcement / judicial judgment, then I guess someone will want to write yet another law. Constitutional carry in Texas could clear up the issue for guns. Let’s quit allowing “the dance” arround this issue.

  5. I don’t understand it. Can’t these “Open carry” activists see that they just look like a bunch of gun nuts and anarchists? And then, by association, ALL gun owners must be gun nuts and anarchists. If ever there was a group in need of PR training, it is the gun manufacturing industry and gun owners. Open Carry Texas, and other groups using similar tactics, are playing into the hands of Obama and his anti-gun friends by scaring people–on the news. There is a time for public protest and a time for keeping a low profile. Now is time for the latter.

  6. Here are some additional thoughts spawned by continued conversation on this. I saw an arrest by a licensed peace officer who apparently believed he was acting in good faith and enforcing the law. That’s a lawful arrest even if the charges are later dropped/dismissed or the accused is ultimately acquitted. For it to be an unlawful arrest would require that someone use authority they didn’t have or otherwise knowingly violating the law. But once the arrest is happened, you’re not going anywhere until you’ve at least talked to a magistrate. I have never heard of anyone getting out of an arrest because their friends made a cop read part of the law on the side of the road/sidewalk. I’d thought this was an arrest under Chapter 46 of the Texas Penal Code. Turns out, they were charged with Disorderly Conduct which is as simple as cussing at an officer in Texas.

    Now, at issue is the fact the guns in question are excluded as “pre-1899” curios/relics/antiques by 46.01(3) and then clearly defined as a firearm under 46.01(5). I’ve talked this over with several criminal defense attorneys and as one attorney put it, it’s a pretty thin rail to stand on. Here’s the thing, I’ve always been told 46.01(3) is reiteration of a FEDERAL statute for the purposes of commerce or transfers between parties. Furthermore, 46.15 defines the non-applicability of 46.02 (UNLAWFUL CARRYING WEAPONS) and 46.03 (PLACES WEAPONS PROHIBITED). The fact these revolvers are excluded from the definition of a firearm under 46.01(3) is NOT listed as a condition under which 46.02 or 46.03 would non-applicable.

    So here’s the ultimate BS test. If it’s not an offense and not applicable to “pre-1899” revolvers, then it cannot be an offense to walk into into a court house or judge’s office with or without his permission. Why? Because 46.03 is the only place in the Penal Code that would bar you from entering “the premises of any government court or offices utilized by the court” with a firearm. If 46.03 is rendered non-applicable because the 46.01(3) states that a “pre-1899” revolver is not a firearm, then entry with a “pre-1899” revolver shouldn’t be a problem. This would surely be a test case that would go to trial and resolve this issue.


    • Gary,
      There are obvious and common sense situations that one has to accept. Banks, Fed/State/Municipal buildings, schools, and etc really are not the place to carry any firearm no matter how we define it. These places are guarded for our protection.
      That being said, to have on on your hip in a grocery store, feed store, etc should not be a problem unless the proprietor says not weapons of any kind or type including pre 1899 authentic or replicas.
      This is the way common sense people remedy problem situations. Not pressing the limits at some state building. It causes more harm than good. If enough people carry these in appropriate places (fishing, hunting, camping, traveling, getting gas, etc) then no one is going to have a knee jerk reaction (on either side) and all will be at peace in Camelot.

    • Gary there are as many bad cops as there are bad people proportionately. One just has to understand this. Cops come from the general public and are usually wanting to be in a position of authority rather than to serve the public that pays their bills.
      No cop has the right to break the law and claim ‘it was legal when I arrested him, it’s not my fault the charges were dropped.”
      We need laws that allow people to sue for damages if arrested illegally.
      This would make people and cops more aware, think more before taking action that may be illegal in ‘reality’, not in some make believe world someone lives in as you described.

      Leave us alone, let us live peacefully and let us protect our families. The cops cannot be everywhere all of the time.


  7. Well I for one believe any person that is responsible and does not have a past or present history of criminal behavior should be able to carry (concealed or otherwise) a handgun.
    I’m retired and disabled and do so in many states I travel through while RV-ing around the USA.
    That being said, I also have a CHL and respect what I have.
    I must also say that the originator of this article is skewed in his thinking by his father. Not that is a bad thing but if the law is read then it’s legal by the written word that a person can open carry a pre 1899 authentic or replica gun (of any type) and not be arrested.
    I also think it’s stupid for any group to cause a problem as these did by pushing the limits on what they believe is legal.
    Now having said that, I wonder what would happen if I’m on the side of the road repairing a flat and being in the middle of nowhere I choose to strap on my .410 cap and ball and a trooper comes by and sees a guy on the roadside with a legal open carry pistol (not a firearm since it has been excluded) and pulls up and wants to know WTF I’m doing with it on my hip?
    I’d just politely tell him I’m fixing a flat and being in the middle of nowhere felt it safer to be stooped over my flat tire with my ‘legally owned, ‘legally open carried’ gun and hope he was not one of those crooked or macho law enforcement officers that seem to always know enough about this topic to cause a problem for a person not breaking any law.
    I feel for the police officers, they never know who they are walking up to.
    But I also feel for people like me that are law abiding citizens doing nothing wrong and still due to ignorance of many law enforcement officers, get harassed and even arrested.
    Lastly, I wonder if they’d arrest me if I happened upon an officer getting beaten near to death and pulled out my legal cap and ball off my hip and put one in the eye of each of the purps? Think they’d still give me sh*t? What’s the real difference? If any? There isn’t any, it’s still carrying a pre 1899 cap and ball gun according to the law.

  8. Prior 1899 Revolvers Are NOT Handguns In Texas for inside Texas a handgun must be a Firearm in order to be a Handgun THATS The Texas Law, a Great Law. A CHL is NOT a RIGHT but B.S. A CHL is “FEEdom”by way of a certain sum of money not “FREEdom” stupidos. A Privilege is NOT a RIGHT But FEEdom, Not Free, must pay Protection Insurance to Criminal Lawyers at Austin. Wake Up Idiots! “a RIGHT requires NO Permission ( Permit )” Duh ! Renew a Permit License is B.S. Renewal was already Paid For in Full By The sweat and Wounds in WW1 an paid already paid for again RIGHTS Renewed in WW11. You Fools Your RIGHTS to Openly carry and cover it up is already Paid for by Blood Don’t You tricked fools SEE That They have You Pissing on all those men’s Graves which died at Goliad, in WW1, WW11, RIGHTS, RIGHTS, RIGHTS ! Don’t you See You are standing over their Grave pissing and with your other hand raised up high into the air waveing Your Conceal Carry License WEE! look at Me , I’ve Got My RIGHT to Carry Back , Ye Most High Fools ! Ye Most high Deceived Fool. Those Lawyers have Tricked You, The Enemies is the Lawyers , your favorite Lawyer at Austin. “A Right Requires NO Permission”. A Privilege requires Permission from your masters. Are you Makeing ALL those men who died , die for NOTHING ? Are Ye going to keep on with That ? Google CockrunVsTheStateTexAt ‘402’. At ( 402). Look up The Legal word “VOID” now Smoke that in your pipe a few days until it gets into your thick skull. For now Stop Urinateing on those men’s graves period

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