Why Open the Carry Laws in Texas?
My perspective as a woman, a former law enforcement officer and a CHL holder

By Debra Littlejohn Shinder

Back when I became a police officer in the 1980s, Texas gun laws were an odd mix. You could legally carry a loaded shotgun or rifle down the street, but carrying a handgun (even unloaded), club or “illegal knife” (generally, one with a blade over 5 ½ inches) on or about your person constituted the crime of UCW, or Unlawful Carrying of a Weapon [Texas Penal Code section 46.02].  “On or about your person” included the glove compartment of your car.

 While people in some states could get permits to carry a handgun, there was no such provision in Texas law. We cops joked that our law enforcement commission card was the only handgun permit available – and I knew more than a few people who went through the rigors of the police academy and signed on as reserve officers with an agency solely or primarily because it was the only way they could legally carry their pistols.

 The oppressiveness of the handgun laws was particularly strange because Texas has always had a strong gun culture. Many folks routinely and legally carried their long guns – which are far more lethal than handguns – openly in racks mounted in their pickup trucks. Individuals (not dealers)  could buy and sell both long guns and handguns without any paperwork and you could own as many as you wanted (unless you were a felon), without any type of registration.

 The UCW law itself contained many broad and vague exceptions. It didn’t apply if you were on your own property or “property under your control” (i.e., your place of business). It didn’t apply if you were engaged in “lawful sporting activity” (such as hunting or target shooting). It didn’t apply if you were “traveling” (a term that wasn’t defined in the law).

 All these were, however, only “defenses to prosecution.” You could still be arrested in those circumstances – but that didn’t mean you would be. Police officers, prosecutors and the courts exercised a lot of discretion in how they interpreted the law. That resulted in the law being enforced unevenly; the same act that would get you arrested and convicted in one jurisdiction might be ignored by law enforcement or thrown out by the court in another.

 And aside from the official exceptions, police departments and individual officers had their own policies when it came to UCW enforcement. I knew lots of male cops who would admit that they gave their wives or grown daughters a handgun to carry when the women were out alone late at night or in a dangerous part of town. They relied on the “professional courtesy” of fellow officers to protect their ladies from prosecution.

 But it wasn’t just about special treatment for family members, either. I knew plenty of officers who would overlook it if they happened to run across an otherwise law abiding female with a handgun in her purse or glove compartment. Those same cops would be much more likely to arrest a man – especially a young man – in the same circumstances. Unfair/unequal application of the law? Of course it was. But those cops recognized that generally women, due to smaller size and less physical strength, are especially vulnerable to criminal attack and that a weapon could level the playing field a little.

 Meanwhile, there was a growing call from citizens for the right to carry a handgun for personal protection and the people passed a referendum petitioning the state to give them that right. Ironically, it was our female governor, Ann Richards, who blocked their efforts. Ann was something of an odd duck. A motorcycle-riding grandma, she was photographed hunting with her shotgun – but true to the Democratic party line, she vetoed the concealed handgun bill passed by the Texas legislature. Further, she vowed that no concealed carry legislation would ever pass while she was governor – thus ensuring that she didn’t stay governor for long.

 Shortly after George W. Bush defeated her in the mid 90s (in part because of this very issue), we got our concealed carry law. That single act is probably the number one reason that many of us Texans will always have a soft spot in our hearts for G.W., regardless of his current lack of popularity as president and despite our disagreements with some of his administration’s policies.

 That original law was highly imperfect, but it was progress. It created a large number of “no carry” zones – including such places as churches, hospitals and any place a governmental body was meeting. Those provisions were later relaxed so that those in charge (the pastor or church board, hospital administration and the local government officials themselves) could make the decision as to whether to allow those with concealed handgun licenses to carry in those locations. Unless a sign to that effect is posted, it’s now legal.

 However, the law still prohibits CHL holders from carrying in schools, polling places, courts, racetracks, and businesses that derive more than 50% of their revenues from the sale of alcoholic beverages for on-premises consumption, among others [Texas Penal Code sections 46.03 and 46.035].

Those without a CHL are still out of luck in most public places, but the law was recently changed (and then changed again to further clarify it after district attorneys in Harris and Travis County refused to abide by the first change) to allow unlicensed persons to carry handguns in their vehicles or vehicles under their control (such as a rental car) without the burden of proving that they’re “traveling.” [Texas Penal Code section 46.02 (a)(2)].

 When it comes to gun rights, we’ve come a long way since the early 90s – just last year, the legislature passed the “Castle doctrine” statute clarifying and expanding the right to use deadly force in self defense and protecting those who do defend themselves from frivolous lawsuits brought by the criminals they injure – but we still have a way to go. The next battle is shaping up to be over the right to open carry.

 The Texas constitution gives citizens the right to bear arms in self defense in clear language [Article 1, Section 23] but also gives the legislature the power to regulate “the wearing of arms.” And our legislature has exercised that power in writing our gun laws. Currently a concealed handgun license means just that: the weapon must be concealed at all times. Failure to conceal is a criminal offense and can result in revocation of your CHL. Thus license holders spend an inordinate amount of time worrying about “printing” (the outline of the gun showing through clothes) and a good deal of effort and money on special holsters and uncomfortable carry methods to ensure that our weapons don’t show. Likewise, the recently revised law allowing those without CHLs to carry handguns in their vehicles specifies that the gun cannot be in plain view.

 This requirement for absolute concealment means that the carrying of guns remains a “dirty little secret” – after all, we wouldn’t want to alarm the anti-gun folks or give the general population the idea that carrying a weapon can be a safe, normal activity engaged in by upstanding citizens.

 A majority of states in the U.S. allow some sort of open carry. Some states permit citizens (with some exclusions, such as felons and minors) to carry openly without obtaining a license or permit. Others allow open carry with a license or permit, with the degree of difficulty to obtain such license or permit ranging from very easy to almost impossible. Texas is one of only a small handful of states (which includes such notoriously anti-gun states as New York but also relatively gun-friendly states such as Florida) that generally prohibit open carry altogether.

 Not all who carry guns are in favor of open carry, and some are flat-out against it – usually on the premise that carrying openly is a tactically flawed practice that “gives away” the fact that you’re armed to the bad guys and removes your ability to utilize the element of surprise to your advantage. There is some merit to this position as an individual choice – but laws should exist for the purpose of protecting the populace, and there is no evidence that allowing open carry poses any special danger to the general public. In fact, most police officers I know would prefer to have citizens carrying openly rather than concealed, as they feel that everyone is safer when they know where the guns are and who has them.

 There’s also a good chance that if citizens could routinely carry their guns openly, this would serve as a deterrent to criminals – after all, we already know that the vast majority of mass shootings take place in so-called “gun free zones” (I call them “fish-in-a-barrel zones) such as schools or malls where guns are prohibited.  You don’t see many bad guys opening fire in police stations, gun shows, NRA meetings or other places where large groups of law abiding folks are likely to be armed.

 Ideally, the law would permit you to choose whether to carry openly or concealed according to your own personal preferences or the particular circumstances of the day. I have a CHL and if an open carry law is passed in Texas, I will probably continue to carry concealed most of the time. However, in some situations – such as hot Texas summers – when the ability to carry openly would be welcome.

 Open carry should perhaps be even more of an issue for women who carry than for men. Our smaller physical size and the shapes of our bodies can make it more difficult for us to conceal our guns on our bodies without “printing.”

 But for all Texans – whether or not they would carry openly, whether or not they would carry at all -- opening up the Texas carry law would be a good thing, because it means one step toward a loosening of the tight reins of government.  Thomas Jefferson said, “the natural process of things is for liberty to yield and government to gain ground,” and we have certainly seen plenty of evidence of that over the last few decades. He also said, “My reading of history convinces me that most bad government results from too much government.”  By doing away with the laws that prohibit open carry, we would have just a little less government. And that’s the way towards better government.