2016 Texas Gun Laws: Obama Action, Open Carry: Know Your Gun Rights

Prediction:  More Gun Arrests in Texas Over New Gun Laws

In the first week of the new year, not only did the new Texas Open Carry Law become effective, but President Obama announced his latest executive actions for federal government gun control. Talk to people; read the news media; listen to the news releases from various Texas police organizations, and it’s pretty obvious that there’s lots of confusion out there over Gun Rights and Gun Laws in Texas right now.

Confusion Will Lead To Improper Gun Law Arrests on Weapons Charges

And from a criminal defense lawyer’s perspective who handles trials and appeals, one thing that isn’t confusing is this: there will be improper and illegal arrests over guns and weapons this year with issues that will ultimately be decided in the Texas appeals courts. It’s a big Second Amendment issue.

Sadly, some Texans are going to be stopped by police, arrested for their handguns or other guns (rifles, etc.), and then tried and convicted on the weapons charges only to be vindicated many months (even years) later when their case travels its way to the Texas Court of Appeals and maybe even to the Texas Court of Criminal Appeals for legal review. Or through the federal system where it might go so far as to the United States Supreme Court. It’s gonna happen.

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Obama’s January 2016 Gun Control Executive Actions

Yesterday, President Obama tearfully announced that “… a series of commonsense executive actions” are being issued on guns and background checks for the purchase of guns. Executive orders come from the president and instruct those in his branch of government (like everyone working in the Justice Department and the Treasury Department) to take specific actions.

Included in the announcement is the suggestion that “Congress should support the President’s request for resources for 200 new ATF agents and investigators to help enforce our gun laws, as well as a new $500 million investment to address mental health issues.” That’s important because Congress controls the money — Congress has to provide the cash in the federal budget for this stuff.

Also in the announcement: a “call” to “States and local governments” as well as “private-sector leaders” (which means corporations and businesses, etc.) “ to do all they can to keep guns out of the wrong hands and reduce gun violence.”

From the White House Fact Sheet released yesterday, here’s what President Obama has ordered the executive branch to do —

1. Federal License for Gun Dealers and Background Checks When Buying Guns

1. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will issue federal regulations requiring anyone “in the business of selling firearms” to (1) get a Federal Firearms License (FFL); and (2) to conduct background checks on their customers.
2. Also, “ATF is finalizing a rule to ensure that dealers who ship firearms notify law enforcement if their guns are lost or stolen in transit”.
3. The Federal Bureau of Investigation (FBI) will “overhaul” the federal background check system, making it available “24 hours a day, 7 days a week” and “improving notification of local authorities when certain prohibited persons unlawfully attempt to buy a gun”.
4. The Social Security Administration will issue an agency rule requiring information in the background check system to detail any Social Security beneficiaries who are prohibited from possessing a firearm for mental health reasons.
5. The Department of Health and Human Services will issue an agency rule “to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons.”

2. DOJ Spending Money for Enforcing Gun Laws

1. U.S. Attorneys have been instructed to have all federal prosecutors focus on “smart and effective enforcement of our gun laws” and “to renew domestic violence outreach efforts.”
2. Money is being set aside in the FY2017 budget to hire 200 new ATF agents and investigators “to help enforce our gun laws”.
3. ATF will be using its new Internet Investigation Center to track illegal online firearms trafficking.
4. ATF has $4 million “to enhance” the National Integrated Ballistics Information Network.

2016 Gun Control Executive Action: What Does It Mean to Texas Gun Owners?

First things first, here’s what the Governor of Texas, Greg Abbott, had to say yesterday about President Obama’s Gun Control Executive Actions:

“The Bill of Rights was added as a specific safeguard to prevent the federal government from denying Americans those guaranteed rights. Today, the President trampled the purpose and substance of the Bill of Rights by unilaterally imposing Second Amendment restrictions. After failing to pass gun control measures through Congress, the President is yet again resorting to unilateral executive action in place of the democratic process. Despite the President’s latest attempt to undermine our liberty, Texas will take every action to protect the Second Amendment rights of law-abiding citizens.”

Others are in agreement with Governor Abbott that these executive actions are in violation of the U.S. Constitution and will not survive after the courts get a chance to review them. Of course, in order for the appellate courts to have that chance to make a decision on these unilateral gun control measures as being against the Second Amendment, a case will have to be filed with the courts.

Whose case? We don’t know. How long with it take? Dunno that either.

And until these gun control executive actions are struck down as unconstitutional, federal agencies will be enforcing them. So, Texas Gun Owners need to be aware that these federal actions will apply to them until the Second Amendment challenges get sorted out.

Texas Gun Laws In Effect in 2016: What Gun Owners In Texas Need to Know

Owners of guns and firearms in Texas know that they are subject to federal and state regulation.  As of January 2016, here are weapons laws that apply to them:

1. Federal Law: Obama’s January 2016 Executive Actions

A. If a Texan privately sells even one firearm, it can be argued by prosecutors that he is “engaged in the business of dealing in firearms” and must comply with the new federal regulations regarding background checks and licensure.

B. If you are selling guns online, or if you go to local gun shows as a seller of guns, then federal prosecutors will consider you to be “engaged in the business of dealing in firearms” and you’re going to be expected to be ready with a current Federal Firearms License (FFL) and to do background checks on all your buyers.

2. Texas State Law on Guns

Here are some of the state weapons laws that cover lots of folk who own handguns in Texas. For details on all the new gun laws effective on January 1, 2016, go here.

A. Under Texas gun laws, you do not need any kind of permit to buy a handgun or a long arm but you do have to be a certain age. You have to be 18 years old or older to buy a long arm and over the age of 21 years to buy a handgun.

B. There is no Texas law requiring you to register your guns (handguns or long arms).

C. There is no Texas law requiring you to get a license to own a gun.

D. As of January 1, 2016, you can openly carry your handgun in a holster on your belt or shoulder. (Read our earlier post for details). As a general rule, you can also carry a long arm in Texas but it’s limited by “disorderly conduct” laws which means you cannot carry your hunting rifle into the local grocery store, for example.

E. Texas has a “stand your ground” law, or a self-defense law, which means that you are under NO legal duty to retreat (as long as you’re legal in the spot where you’re threatened).

F. Local governments and private businesses can restrict your use of a gun. For instance, the HEB chain of grocery stores and all Whataburgers have signs that forbid open carry of handguns on their property.

G. Open carry laws don’t stop concealed carry laws. You can continue to carry concealed if you choose to do so. The same concealed carry laws are in effect as before (can’t carry concealed into a post office, school, etc.)

H. Texas abides by the “castle doctrine,” which means you can use your gun and deadly force to protect yourself and your loved ones if your home or dwelling is illegally invaded by force.

I. Texans that have been identified as members of a criminal gang organization cannot carry any firearms in Texas. (Texas Penal Code 46.02(2)(c).)

J. You need a concealed carry license in order to open carry your gun. There’s no separate kind of license needed for open carry.

Arrested For Handgun in Dallas or Texas

If you are arrested on a weapons charge or gun law violation in Texas, then you need to investigate whether or not that charge is legally valid and constitutional. Especially these days, when even the police aren’t sure what’s right and wrong under the new gun laws that apply here in Texas.

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For more information on Weapons Charges and Gun Arrests in Texas see our web resources page

or visit our page on Appealing Convictions — and check out  Michael Lowe’s Case Results.