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.” Infowars.com 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.

-Gary