It’s time to end 46.02

William Connell Cawthon Jr.
8 min readFeb 21, 2019

Texas Penal Code Title 10, Chapter 46, Section 46.02 Unlawful carrying of weapons.

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun or club; and is not:

(a) on the persons own premises or premises under the person’s control; or

(b) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

Texas 46.02 was enacted in 1973 as part of an overhaul of the state’s penal code. It’s the last vestige of a law enacted nearly 148 years ago, during the Reconstruction Era. That law was “An Act to Regulate the Keeping and Bearing of Deadly Weapons Law of April 12, 1871, Ch. 34, Sec. 1, 1871 Texas General Laws 25” and it is most often known as the Act of April 12, 1871.

Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor ….

For 124 years, until 1995, this was the strongest prohibition on carrying a handgun of any state in the United States. There were no exceptions, no permits, no legal way for a private citizens to legally carry a handgun outside of their own home or a place of business that they owned or controlled. (For an excellent analysis of the original act, see Dr. Stephen P. Halbook’s 1989 article from the Baylor Law Review here.)

There was an exception for traveling but it, like beauty, was in the eye of the beholder, in this case, a police officer or sheriff’s deputy and the district attorney. There was no consistent, statewide definition of traveling. Any hopes for a defense depended on a county judge.

Gun control advocates would have loved this law — except for one thing. The law was very selectively enforced.

My grandmother was born in the last decade of the 19th Century. Many years ago, she was showing me some old family photos. Among them was a picture of her with her two older brothers on the way to a social in Luling, Texas. The brothers were escorting my grandmother and the older brother had a big Colt army revolver tucked in his waistband. It wasn’t the classic six-shooter one might expect from a Texas; it was a revolver that her brother brought back from his service in World War I, when there weren’t enough of the newly adopted Colt M1911 semi-automatic pistols and Colt and Smith & Wesson produced revolvers chambered for the .45 ACP cartridge.

I was surprised to see the gun being openly carried and asked my grandmother if there weren’t some problems with her brother carrying a handgun so clearly visible. My grandmother laughed and said that law was only for “Indians and Mexicans” and that her brothers would carry the gun when it seemed like a good idea.

In reality, the Act of April 12, 1871 was a Jim Crow law in practice, if not specifically spelled out in the text.

For most of its existence, the law remained selectively enforced. Some people could carry without fear of arrest; some couldn’t. Depended on who you knew — and who knew you.

The law almost got changed in 1993. In the sweeping nationwide movement toward more permissive concealed carry laws, the Texas legislature was prepared to enact the state’s first concealed carry permit law. Governor Ann Richards stopped the movement dead in its tracks when she said she would veto such a bill. The legislature then proposed a statewide referendum but Governor Richards refused that, too.

Though I sincerely doubt her stand on concealed carry made a big difference, Ann Richards was the last Democrat to be elected governor of Texas.

Her successor, George W. Bush, had indicated he would sign a concealed-carry bill during his campaign. The legislature quickly passed a law and Bush signed it on May 26, 1995.

While Texas now had concealed carry, that didn’t mean it was easy to get. At one time, the Texas Concealed Handgun License was the most expensive permit in the country. Even today, it’s not enough to just have a clean criminal history, an applicant must also be current on child support, property taxes and any business taxes owed the state.

The Department of Public Safety was allowed up to nine months to make a decision on issuance of a permit.

To this day, Texas, which is one of the largest firearms markets in the U.S., has one of the lowest percentages of adults with permits.

In the U.S., 31 states allow the open carry of a handgun without a permit. Texas isn’t among them. In fact, it’s only been since the last session of the legislature that Texans could open carry with a permit.

Since the turn of the 21st Century, a new change has been taking place. Before then, Vermont was the only state in the Union where is was legal to carry a handgun, openly or concealed, without a permit. Vermont’s constitution doesn’t even allow for a permit.

But, since 2003, more states have adopted what is called “Constitutional Carry” or the right of any person legally entitled to possess a firearm to carry a handgun without a permit.

Of course, every change has been accompanied by dire predictions of “blood in the streets.” Doesn’t matter that that has never happened; doesn’t matter that Vermont has had one of the lowest homicide rates in the nation for years or that the four states with the lowest homicide rates in 2017 were all constitutional carry states, the gang’s still out there, peddling their pitches.

In a February two-fer, South Dakota became the fourteenth constitutional carry state and Oklahoma became the fifteenth.

So what about Texas? If you look at the graphic, Texas is this big blob of red in a sea of green and blue.

A bill, HB 357, the Texas Constitutional Carry Act, was pre-filed last year by Rep. Jonathan Stickland, a Republican from Bedford, Texas, a suburb of Ft. Worth, one of the most conservative areas in what is still a fairly red state.

We’re now eight weeks into this session of the legislature. In Texas, the legislature meets once every two years for a maximum of 148 days.

What’s the status of Stickland’s bill? Officially, it has been referred to the House Homeland Security and Public Safety Committee. According to a knowledgeable source in the state capitol, its future is unclear.

Constitutional carry would seem to be a natural for Texas. Our politicians brag about the state being strong advocates of the Second Amendment.

There are 14 co-sponsors for Stickland’s bill. Most are members of the Freedom Caucus, a group of conservative legislators that also includes Stickland. But there are only six co-sponsors who are not members of the caucus. There are two members of the caucus who haven’t signed on.

There are currently 147 members of the Texas House (there are three vacancies). This means it takes 74 votes to pass a bill and send it to the senate.

There are 83 Republicans. it will take another 59 Republicans to have a majority. It wouldn’t hurt to have the support of Governor Greg Abbott and Lieutenant Governor Dan Patrick.

Texas Republicans tend to be conservative and constitutional carry is generally a conservative issue.

So what’s going on? Why isn’t there more of a push?

We can’t blame Democrats, liberals, socialists or Michael Bloomberg. We did this to ourselves.

Ahead of and during the last legislative session, the antics of a group of gun rights activists and even gun rights groups effectively made constitutional carry poisonous. Parading through restaurants, retail and grocery stores while carrying rifles and shotguns is great for shock value, but not so great public relations.

There were no T-shirts, no banners or anything else to let people even know why these people were doing this. That’s one of the basic rules of any demonstration: don’t leave the public wondering what the heck you’re demonstrating for.

They passed out copies of the U.S. Constitution and talked about the Second Amendment. Sounds swell until one realizes that the Second Amendment has nothing whatsoever to do with the reason they are marching. Apparently, even the group never figured that out.

What they really wanted was the repeal of 46.02, a state law.

They got even more aggressive, holding a demonstration at a meeting of Republican politicians who were inclined to support them.

As if they hadn’t already shot themselves in the foot enough times already, my source said they then proceeded to contact state legislators, badger them and even threaten their political prospects.

I have often wondered if Michael Bloomberg wasn’t funneling money to the group. They were much more effective at killing permitless carry in Texas than any campaign Everytown for Gun Safety could have mounted.

So, here we are again. There’s a deadline of March 8 for any new bills to be filed. So far, Stickland’s is the lone contender.

The Texas legislature has already whittled down the list of prohibited weapons in 46.02 from “pistol, dirk, dagger, sling-shot, sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife, manufactured or sold, for the purpose of offense or defense…” to just handguns and clubs.

That’s right, it’s perfectly legal to carry a real sword in the Lone Star state. Even a Bowie knife, which legislators back in the late 19th Century regarded as more of a threat to public safety than a handgun, is okay.

We have only a short window of opportunity before we have to wait two more years and hope the legislature takes this up again.

This time, let’s be smart. If we can’t get 46.02 repealed outright, let’s politely ask our state representatives to insert just two words in the law.

Section 46.02 Unlawful carrying of weapons.

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly carries on or about his or her person a concealed handgun or a club …

This single change allows Texans to join the citizens of 31 other states in being free to openly carry a handgun without state permission.

It’s all well and good to take a “no compromise” position but that only works if you have something to offer. Understand that an elected representative is in Austin now. It’s idiotic to browbeat or threaten. All they have to do is nothing at all and the whole thing is deader than a doornail.

We have to be persuasive, not combative. We want our legislators to do something for us; for the people of Texas.

Understand that this isn’t about the Second Amendment. It’s doing just fine and isn’t going anywhere. This is all about finally ridding the state of one of the last vestiges of an era we’d like to forget.

(Note: This article has been updated to reflect recent changes.)