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Texas Reexamines Gun Rights

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The Texas legislature is considering several bills to revise its firearm-carry laws. Texas has had a concealed-carry law since 1995 that requires a permit, a background check, classes, and proof of proficiency at the range. The permit must be renewed at some expense every five years.

On its face, it is ridiculous to think that people who form a government to protect their lives, liberty, and property, must ask government officials for permission to keep and bear arms to protect themselves. Who gives authority to whom? Our legislators also seem to have forgotten that no one needs permission to exercise a right, and rights may not be converted to privileges. Nevertheless, rather than encourage wholesale noncompliance, with its inherent difficulties and penalties, it is better to undo the errant legislative acts masquerading as law through the legislative process.

With that in mind, among the bills being considered is one for “Constitutional Carry,” which means recognizing the right of individuals, who are not otherwise prohibited from owning a firearm, to carry open or concealed, without a permit or other requirements, as long as the firearm is legal and carried in a safe, nonthreatening manner. If passed, Texas would be the eighth state to recognize the unimpeded right to keep and bear arms as originally intended by both the U.S. and Texas Constitutions. (The other states are Arizona, Arkansas, Alaska, Vermont, Wyoming, New Mexico, and parts of Montana.)

The Declaration of Rights in the original Constitution of the Republic of Texas (1836), read, in part, “Every citizen shall have the right to bear arms in defence of himself and the Republic.” Simple, clear, and unequivocal. (From here on, this will be referred to as the Right to Carry clause.)

Moreover, the preamble to the Declaration of Rights said, “This Declaration of Rights is declared to be a part of this Constitution, and shall never be violated on any pretence whatever. And in order to guard against the transgression of the high powers which we have delegated, we declare that every thing in this bill of rights contained, and every other right not hereby delegated, is reserved to the People. (This will be referred to as the Supremacy of Rights clause.) In other words, government could exercise only delegated powers, and they did not include anything covered by the Declaration of Rights, among which was the right to bear arms.

In 1845, Texas became the 28th state of the Union. As such, it had to harmonize its constitution with that of the United States. The Bill of Rights now became Article I as it remains today. Section 13 read, “Every citizen shall have the right to keep and bear arms, in the lawful defence of himself or the State.” The words “keep and” were added before “bear arms,” “lawful” was added before “defence,” and the word “State” was substituted for “Republic.” The Supremacy of Rights clause now read, “To guard against transgressions of the high powers herein delegated, we declare that every thing in this ‘bill of rights’ is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or to the following provisions, shall be void.” That was a stronger declaration that government had no authority to alter, abridge, or otherwise change anything within the Bill of Rights, forever.

In 1861, Texas seceded from the Union to join the Confederacy. Its constitution again underwent revision to conform to that of the Confederate States of America. Nevertheless, the Right to Carry and the Supremacy of Rights clauses remained the same, word for word.

In 1866, Texas made some prescribed changes to regain admission to the Union. The changes did not satisfy Congress, so the Constitution of 1866 was not accepted. Still, there had been no attempt to change the Right to Carry and the Supremacy of Rights clauses.

By now, Reconstruction was in full swing in Texas, and the Reconstruction government rewrote the Texas Constitution in 1869. The Right to Carry clause now read, “Every person shall have the right to keep and bear arms, in the lawful defence of himself or the State, under such regulations as the Legislature may prescribe.” Note the change to allow government to restrict the right to keep and bear arms which, until then, had remained inviolate. This change was part of a general centralization and expansion of government power. Still, what had been the Supremacy of Rights clause in previous constitutions was not changed. The reason for the change to the Right to Carry clause was that the Reconstruction government remained extremely unpopular in Texas with widespread resistance. As with all unpopular governments, there was a desire to disarm those who resisted its dictates. The reworded clause allowed the Reconstruction government to arm its supporters while disarming unrepentant Confederates. The fact that this section of the Constitution violated provisions of Supremacy of Rights clause, in all its previous iterations, disturbed not those in power.

With the end of Reconstruction came the Constitution of 1876, this time written by former Confederates who were back in power. The clause guaranteeing the right to keep and bear arms was changed to read, “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power by law to regulate the wearing of arms with a view to prevent crime.” That is how it reads today. Although they had howled when the Reconstruction government had revised the clause to restrict their possession of arms, the new state officials saw wisdom in limiting that right so as to disarm Unionists and Negroes, and thus prevent successful resistance to the undoing of Reconstruction policies. After all, it was very discouraging for Klansmen to find their intended victims armed. Where once those restricted in the right to keep and bear arms under the Reconstruction government had pointed to violations of the Supremacy of Rights clause, they now found it convenient to ignore it as well.

Today, we are burdened with those vestiges of Jim Crow and Reconstruction, a disgraceful remnant of that racist and prejudicial era. Bills of rights have one purpose: to remove certain issues from political debate. Texans should not tolerate restrictions to their right to keep and bear arms any longer. Since too many politicians lack the integrity and courage to undo the abuses of the past without considerable prodding, it is up to the people of Texas to end this travesty by demanding that the legislature repeal those statutes which prevent the unrestricted keeping and bearing of arms and also remove the offending clause from the state constitution by amendment. That would harmonize the right to keep and bear arms section with the Supremacy of Rights clause, now Article I, Section 29, of the Texas Constitution. There is no need for politicians to complicate the issue as they so often do. No new law is necessary; simply repeal and amend. End of story.

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    Benedict LaRosa is a historian and writer with undergraduate and graduate degrees in history from the U.S. Air Force Academy and Duke University, respectively.