Constitutional Carry

Written by Michael Badnarik

My birthday is August 1st, however my birthday wish will not come true until September 1st, when “Constitutional Carry” is no longer against the law in Texas. I plan to wear my shoulder holster every day after that without fail.

What IS “Constitutional Carry”? It is this crazy idea postulated by the founding fathers that you have a “self-evident” right to defend yourself from bears, people – and especially people in the government. Many Texans are excited that the legislature has “passed a new law”, however the new status in Texas is correctly referred to as “CONSTITUTIONAL Carry”. Logically, anything that came before that was – by definition – UNconstitutional. Let me repeat myself for those with serious learning disabilities. RIGHTS ARE INHERENT!!! They cannot be granted by the Bill of Rights, the Constitution, the Declaration of Independence, or any other piece of paper, no matter how revered that paper may be. Let me paint you a picture. The government is not “helping me to breathe”. The government is finally “taking its foot off of my throat”. [deep sigh]

Here is my prediction for the near future. Television networks are going to broadcast short “human interest” stories about smiling Texans wearing their guns in public. (Note that pulling the gun out of the holster to show the cameras your favorite pistol constitutes “brandishing” a firearm, and is therefore still illegal.) In a few short weeks there will be a number of shootings that will cause the media to question the rationality of everyone carrying a gun. For a group euphemistically labeled “bleeding hearts”, they sure are squeamish at the sight of real blood. There may even be a false flag “mass shooting” that will be used to convince an ignorant and emotional public that we have returned to the “wild, wild, West”. However, in the long run, criminals will be hesitant to initiate violence because it is very likely to be fatal. The overall crime statistics will go down, as they have everywhere people have been allowed to defend themselves with guns. Sorry, liberals. Water will never flow uphill, no matter how much you wish or claim that it will. I am embarrassed that there are twenty states that reinstated Constitutional Carry before Texas did, but I hope there will be many others that will follow in our footsteps.

In the meantime, I am happy to confess that I lost a bet on this topic. I tend to be cynical and jaded, and I insisted that legislators would NEVER allow the public to carry guns without a permit. I have never been happier to be wrong. I bet my friend, Heather, that it would never happen, and I promised to take her to dinner at her favorite restaurant if it did. She has already picked the restaurant, and I have decided to wear my stainless .45, which is prettier and more appropriate for special occasions.

Paraphrasing Davey Crocket, “You can go to hell. I’m staying in Texas.”

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  1. Kent McManigal

    I just wish it was actually as Constitutional as the name suggests. I haven’t seen any exceptions– anywhere in the Second Amendment– to the natural human right to own and to carry firearms. Yet, the Texas legislative criminals sure did see fit to impose a lot of exceptions on who, where, when, etc. you are “allowed” to exercise your right.
    The Second Amendment doesn’t “allow” anything; it forbids government to meddle with guns in any way. The Texas Constitution, on the other hand, is a bit less honorable on the subject.

  2. Bill

    Yeah. It’s very explicitly NOT “constitutional carry” until we get rid of GCA’69, NFA ’34, “transfer fees/taxes” background checks, and all the rest of it. None of this “restoration of rights” hocus pocus.

    WHEN did “felons” (an ever-expanding list of people railroaded in corrupt courts for committing ‘crimes’) “lose their Right” “guaranteed” by the Second Amendment?

    [mjb: The purpose of this post was to inform people that Texas will move in a positive freedom direction Sept. 1st, and that I plan to “exercise the sh*t out of my Second Amendment right. However, there is always one person who wants to expound on the subject with details that nobody will understand, and very few will even care about. However… in the spirit of Freedom of Speech… I will include (at least temporarily) this futile attempt to fix the problem with more words. Just… don’t bother me while I’m reloading.]


    Title 18, United States Code, Section 922(g)(9) (the Lautenberg Amendment) in the fall of 1996. This provision amends the Federal Gun Control Act of 1968 by banning the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence.


    The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The intended effect of this new legislation is to extend the firearms ban to anyone convicted of a “misdemeanor crime of domestic violence.”

    This bill passed with almost unanimous support and represents Congress’s recognition that “anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms.” Congressional Record, p. S11878, September 30, 1996. This new provision affects law enforcement in three interrelated ways. First, it will assist in preventing those individuals who have demonstrated a propensity for domestic violence from obtaining a firearm. Second, it will assist law enforcement by providing a tool for the removal of firearms from certain explosive domestic situations thus decreasing the possibility of deadly violence. Finally, it will serve as a federal prosecution tool in certain situations where alternatives have failed.

    Qualifying Offenses: As enacted the statute defines “misdemeanor crime of domestic violence” (MCDV) as any state or federal misdemeanor that –

    “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
    This definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties. This is true whether or not the statute specifically defines the offense as a domestic violence misdemeanor. For example, a person convicted of misdemeanor assault against his or her spouse would be prohibited from receiving or possessing firearms. It is anticipated that this issue will be subject to litigation. In the event of such litigation, the Terrorism and Violent Crime Section should be notified so that assistance can be provided.

    Date of Previous Conviction: The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law’s effective date, September 30, 1996. See United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1) conviction) and United States v. Waters, 23 F.3d 29 (2d Cir. 1994)(ex post facto based challenge to a 922(g)(4) conviction).

    Limitations on Previous Convictions — 18 U.S.C. § 921(a)(33)(B). To qualify:(1) at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived the right to counsel;(2) if the offense of previous conviction entitled the person to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; and (3) the conviction can not have been expunged or set aside, or be an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. The issue of restoration of civil rights must be carefully researched for each potential defendant. For example, in some states a person automatically loses his/her civil rights upon the execution of a sentence of imprisonment (felony or misdemeanor) only to have the rights restored upon the defendant’s release from prison or sentence. However, in those states, a person who does not serve a sentence of imprisonment may not lose their civil rights and, therefor, this limitation may not be applicable. But, in United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996), the Court held that in at least some instances if one group of felons may possess a firearm because their rights were automatically taken away and then restored then those who do not have their rights taken away may also possess a firearm. The Terrorism and Violent Crime Section can provide assistance in analyzing particular cases.

    There is no law enforcement exception: One of the provisions of this new statute removed the exemption that 18 U.S.C. § 925(a)(1) provided to police and military. Thus, as of the effective date, any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor they are prohibited from possessing any firearm or ammunition at any time. Currently pending before Congress are at least two bills that would substantially modify the impact of the amendment to this section.

    Prosecution Considerations: In determining whether a particular case merits federal prosecution, you should consider the following factors: the date of the previous conviction; under what circumstances the firearm was obtained; whether there are indications of current potential for violence (i.e., recent incidents of domestic violence would be a stronger argument for prosecution than if a number of years had passed since any domestic problems had occurred); alternatives available to federal prosecution (state prosecutions, voluntary removal of the weapons); whether the potential defendant was “on notice” that his/her possession of a firearm was illegal; whether the potential defendant had made any false statements in obtaining the firearm.

    Even if a determination is made that prosecution is not warranted, steps should be taken to assure that the firearm is removed from the possession of the prohibited individual. Depending upon the situation, this might be done by having a local/state/federal law enforcement officer notify the individual of the application of the new law and offer to take temporary custody of the firearm. In other, more volatile situations, it may be necessary to obtain a search and seizure warrant to assure that the firearm is removed immediately.

  3. Joel

    Great article, Michael! This comment comes from a reader in Pennsylvania.

    In PA, “open carry” is legal, no permit or paperwork needed. Law and philosophy aside, the following scenario is typical. If a person should go about their day in public here while wearing arms, it’s a sure thing it will be reported to the police, “someone has a gun”. The cops will answer the call with at least two cars/four cops, ask for ID, ask if the weapon is registered (which is not required, but the cops will gather all the info they can), ask why you are carrying, etc. They will use ID to scan your background for any violation that the government says prohibits you from owning arms. So long as no violations were uncovered, that may be the end of the interrogation. Although weapons are rarely confiscated and charges rarely filed, most armed people in PA simply leave their guns home because they do not want their day interrupted as described above.

    I highly recommend following Michael’s lead on Sept 1st. Demonstrate that those who carry guns are the “good guys”. Exemplify the adage that “An armed society is a polite society.” Be ready to respectfully answer a few questions. Be ready to band together with like minded individuals. Seize this opportunity to advance in the right direction, even if it is not the complete solution you wish for.

    If I ever make that overdue trip to TX, I would be delighted to find a place where it is not at all out of the ordinary for people to be openly armed while about their day.

    [mjb: Well said, Joel. Knowing your rights and being brave enough to exercise them are two radically different things. I have prepared my phone with a “home page” showing my target with 49/50 in the head of the silhouette. (1 in the neck, which almost qualifies.) I fully anticipate someone calling the police. I am fully prepared to explain the difference between rights and privileges… and then I will show them my target and ask them if they really want to use excessive force in this instance. We’ll see what happens, but I intend to stand my ground.]


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