A decade later, in 1845, a convention assembled at Austin to frame a new constitution in anticipation of the admission of the Republic of Texas into the United States. The convention considered several bill of rights proposals recognizing the right to keep and bear arms, and ended by adopting the strongest version proposed for this right. Judge William B. Ochiltree began the debate by proposing “that the free citizens of this state shall have a right to keep and bear arms for their common defense, provided that the Legislature shall have the right to pass laws prohibiting the carrying of deadly weapons secretly.” The following discussion ensued:
Mr. Evans objected that this would give the right to carry bowie knives.
Mr. Hogg inquired whether it would secure the right of taking deadly weapons about the person?
Mr. Ochiltree said he was as much opposed to that as any body. How shall it be remedied? The legislature has the right to say, they shall not be carried secretly. But certainly he was not to be prevented from carrying them if he thought it necessary. If this is not inserted, there is no telling how far the legislature, in their extreme philanthropy may go. They may go the extent of saying, that a man shall not wear them under any circumstances. He might be compelled to allow himself to be assassinated, or his property to be invaded, by being denied the use of necessary weapons. We might be placed in the condition of the people of Ireland, and a large portion of England, who are denied the right of having firearms about their houses. One of the first principles of freedom, is the right to bear arms. It is true, it may have been prostituted to the worst of purposes; but it is too great a right to deny on that account.
Now think about that for a minute, this is the birth of Texas as a State and “the right of the people to keep and bear arms” was central to the debate. Ironically their concern was over CONCEALED weapons and focused largely on knives, like the infamous Bowie knife, rather than firearms. It is also worth noting their recognition and concern that the legislature “in their extreme philanthropy” may well overstep its bounds and disarm the population. This would allow people to be assassinated and or invaded due to being denied the use of “necessary arms” which could be argued to be whatever level of arms necessary to repel such threats. In other words, arms of necessary type and power to meet the potential power to be used against them. Perhaps the most pertinent element of the debates in relation to current gun policy is the recognition that the right to bear arms can be “prostituted to the worst of purposes” such as used in crime, insurrection, etc. However, even with those risks firmly in mind, they still felt that the right of people to keep and bear arms was “too great a right to deny on that account.”
As the debate continued, the constitutions and court decisions of other states came into the discussion as well. The Alabama Supreme Court, in State v. Reid found that prohibiting CONCEALED CARRY did not violate the right to keep and bear arms. However, the Supreme Court of Kentucky decided, in Bliss v. Commonwealth, that the legislature could not pass ANY law upon the subject. If the legislature had the power to proscribe one mode of wearing arms, it had the power to proscribe another, and thus it might finally defeat the “great end and object” of the right to bear arms. The Kentucky argument was put forth by delegate Robert E.B. Baylor, one of the founders of Baylor University. Baylor had been admitted to the Kentucky bar, and served in the Kentucky and Alabama legislatures and the U.S. Congress before coming to Texas, where he became a Justice of the Texas Supreme Court.
“Mr. Baylor fully agreed with the gentleman, that the right to bear arms is essential to freedom. For it is the policy of governments to disarm the people, that they may have the opportunity to oppress them. This great right ought to be guaranteed; but it is subject to great abuse. The gentleman has correctly stated the decision of the Supreme Court of Alabama. But there is a conflict upon this subject. The Supreme Court of Kentucky decided, in a similar case, that the legislature could not pass any law upon the subject. For if it had the right to proscribe one mode of wearing arms, it had the right to proscribe another, and thus it might finally defeat the great end and object. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution, and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear when the constitution was adopted.”
By the end of the debate, which also included a verbatim version of the 2nd amendment of the US Constitution, the final result was article I, section 13 of the Texas Constitution of 1845 which provided: “Every citizen shall have the right to keep and bear arms in the lawful defence of himself and the State.” Period. End of discussion.
Then along came the Civil War. The Texas code as of 1859 shows that only the misuse of weapons was punishable and Dueling was prohibited. The slave code contained no arms regulations, but the homicide provisions provided that it was permissible to kill a slave only “[w]hen a slave uses weapons calculated to produce death, in any case other than those in which he may lawfully resist with arms.” Antebellum Texas was remarkably unlike most other Southern states, but resembled the Northeastern states, in its lack of infringement of the right to keep and bear arms. No one in Texas, regardless of race, was denied the right to possess or carry arms in any manner. At a time when slaves in most states were legally disarmed, there was no such law in Texas, and whites, Mexicans, and blacks could wear arms. An act passed in 1856 doubled the punishment for assault with intent to murder if a “bowie-knife or dagger” was used, which further illustrates the Texas Founders view that such knives were far more dangerous a threat than were firearms. Cockrum v. State challenged the restrictive knife laws on the grounds that by banning cheap, ordinary weapons such as large knives, the legislature had effectively denied the right to bear arms to persons too poor to afford firearms. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the “high powers” delegated directly to the citizen, and “is excepted out of the general powers of government.” A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power. The Texas Supreme Court did not dispute that the poor had as much a right to bear arms as the rich. However, it held that a homicide committed with a deadly weapon could be punished more harshly to deter abuse of the right to bear arms.
Congress adopted the fourteenth amendment in 1866 and issued its Report of the Joint Committee on Reconstruction. General Rufus Saxon informed the committee that in the South whites were “seizing all fire-arms found in the hands of the freedmen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.'” However, Brigadier General W. E. Strong surveyed the condition of freedmen by visiting portions of Texas with cavalry troops armed with Spencer repeating carbines. He noted that “nearly every man we met with in travelling was armed with a knife, seven-shooter, and double-barreled shot-gun.” New York Times correspondent Benjamin C. Truman, who had just returned from the Texas constitutional convention of 1866 at Austin, found Texas to be the most progressive and tolerant of freedman’s rights of the several southern states he visited. He noted that “[t]he convention passed an ordinance giving the negroes all the civil rights, and it passed by a very large majority.” These civil rights apparently included bearing arms, for unlike other Southern states, Texas did not pass a black code provision disarming freedmen. On November 6, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen. The act declared that “it shall not be lawful for any person or persons to carry fire-arms on the enclosed premises or plantation of any citizen, without the consent of the owner or proprietor,” subject to a fine of one to ten dollars and imprisonment of one to ten days. This meant that sharecroppers who still lived on plantations could keep firearms in their homes but could not carry them outside for any purpose other than civil or military duties. Ironically, Reconstruction would change not only Texas gun rights and gun law, but it would severely change the heretofore racial harmony in Texas as well.
The Reconstruction Convention of 1868 was the end of freedom in Texas in many ways, but especially with regard to what had previous been described as a “absolute right” that “is above the law, and independent of the law-making power.” The elections of 1869 were characterized by massive fraud and force. Gen. Reynolds relinquished military authority to the new governor, E.J. Davis, who assumed extraordinary powers to make arrests, suspend the writ of habeas corpus, and declare martial law. A state police force was organized which promoted “official murder and legalized oppression.” August 13, 1870, “An Act Regulating the Right to Keep and Bear Arms,” was approved and made it illegal for one to “have about his person a bowie-knife, dirk or butcher-knife, or fire-arms, whether known as a six-shooter, gun or pistol of any kind” at any church or religious assembly, school, ball room “or other social gathering composed of ladies and gentlemen,” or election precinct. The act was fairly limited, although its effect on cooks with butcher knives at social gatherings is unclear. The far more draconian statute was passed on April 12, 1871, entitled “An Act to regulate the keeping and bearing of deadly weapons.” For the first time, Texas prohibited the bearing of all arms other than rifles and shotguns at any place off of one’s premises. Today’s statute, with the exception of the Concealed Handgun Law in 1995, derives from the 1871 act passed by the Reconstruction legislature.
Section 1 of the act provided in part: “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 …. Provided, That this section shall not be so construed as to prohibit any person from keeping or having arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or revenue officers, and other civil officers, from keeping or having arms, while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage….”
Now, bear in mind, this was passed under martial law. It essentially set up a police state in Texas which for the most part still exists to this day. The act was one of a series of controversial measures passed by the Reconstruction legislature in 1871, which prompted a taxpayers’ convention in Austin who undertook to investigate general grievances of the people. The Report of the Subcommittee on Violations of [the] Constitution and Laws, chaired by W.M. Walton, was submitted on September 25, 1871 to Senator A.J. Hamilton, Chairman of the General Committee. It complained that the arms act and other acts rendered the majority helpless in the grasp of a military dictatorship. The grievances were reprinted in the minority report of the U.S. Congress’ Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States. The report noted that Governor E.J. Davis placed armed police at all voting places for the Congressional election in October 1871, and observed, “[t]he effect of putting such a military force in possession of the ballot box, with the citizens disarmed, is easily seen….”
Governor E.J. Davis appointed the members of the Texas Supreme Court, which in English v. State sustained the validity of the prohibition on bearing arms. In the English decision, the court ruled that the 2nd amendment applied to and limit the state as well as restricting the federal government. However, they took the “collective right” approach to the 2nd amendment stating that “the word ‘arms’ in the connection we find it in the constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine; of the artillery, the field piece, siege gun, and mortar, with side arms. The terms dirks, daggers, slingshots, sword-canes, brass-knuckles and bowie knifes, belong to no military vocabulary. Were a soldier on duty found with any of these things about his person, he would be punished for an offense against discipline.” Therefore, the state regulation of ‘arms’ in a non-military/militia setting did not violate the 2nd amendment “militia” protection. The upholding of the statute under the above reasoning is somewhat contradictory, since “the deadly weapons spoken of in the statute are pistols,” which the court recognized as militia arms. Moreover, dirks, daggers, and bowie knives were widely used by Texas soldiers in the wars of 1835-1836 and 1861-1865, and these edged weapons have been routinely used in every American war. So, even under a “militia” protection, the ‘arms’ in question would/should have been protected as well. Also of interest is the courts ruling that such things as “artillery, the field piece, siege gun, and mortar” would be considered “militia arms” protected by the 2nd amendment right to “keep and bear.” Later in US v. Miller, the US Supreme Court would use a similar “infantry arms” description as being all that is protected by the 2nd amendment while ruling against Miller and his “sawed-off shotgun” as not a military weapon. Although such weapons are routinely used in military action. US v. Miller would also ultimately validate the National Firearms Act of 1934 on similarly conflicting and dubious terms as the English v. State case in Texas.
In September of 1875 delegates assembled in Austin to formulate a new constitution. These delegates had participated in previous conventions, one even in the 1845 convention, but NOT ONE MEMBER had taken part in the 1868 Reconstruction convention. Tired of corruption and military rule, “the delegates to the Constitutional Convention of 1875 determined to include in the state’s basic instrument as many safeguards as possible to prevent the recurrence of such widespread and flagrant abuse of power.” The constitution they drafted greatly reduced the powers of the legislature and has been described as “an antigovernment instrument.” According to Seth Shepard McKay’s definitive study, in raising the demand for a convention, “the arguments most used were that the old constitution apparently had permitted the so-called ‘obnoxious acts’ of the Davis administration.” As McKay further notes, “the experiences with the ‘obnoxious acts’ passed by the Twelfth Legislature caused restriction of the power of the legislative branch of government. More than one-half of the fifty-eight sections of the article finally agreed upon dealt with restrictions and limitations of the power of the legislature.”
The Bill of Rights Committee, chaired by W.L. Crawford, reported an arms guarantee which would become Article I, Section 23 of the constitution of 1876: “Every citizen shall have the right to keep and bear arms in the lawful defence 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.” The convention journal reflects the following attempt to amend this provision:
Mr. [W.P.] Ballinger offered the following amendment: Section 23, line 105, next before the word “regulate” insert “prohibit and.”
The arms guarantee in its original form passed along with the rest of the Bill of Rights by a vote of 69 to 9. A linguistic analysis comparing the new language with that of the 1869 Constitution demonstrates that the legislative power was drastically curtailed. Initially, the sentence structure was changed. The 1869 provision asserted the right to keep and bear arms only “under such regulations as the legislature may prescribe.” Keeping and bearing arms was contingent on legislative regulations. “The 1875 Convention changed this to the more specific and limited qualification in the present Section 23, which gives the legislature power to regulate ‘the wearing of arms.'” The new language asserted the right in an absolute form without making it contingent on legislative regulation, subject only to the power of the legislature to regulate how arms are worn. Secondly, the new guarantee deleted any legislative power to regulate the keeping of arms. The possession, ownership, transportation, or other forms of “keeping” arms, particularly on one’s premises or while travelling, were intended to be beyond the parameters of legislative control. Thirdly, the “bearing” of arms could no longer be generally regulated but only the “wearing” of arms could. To “bear” arms means to carry or move while holding or wearing readily accessible arms on or about one’s person. To “wear” means more narrowly to have attached to one’s body or part of it or to one’s clothing. Thus, the bearing of arms would include both wearing them as well as carrying them in other manners, such as in the hand, in saddle bags, or on a vehicle seat. Thus, the convention did not give the legislature power to regulate the “bearing” of arms, but instead chose a different word so as to allow regulation only of the “wearing” of arms. By allowing regulation of how arms are worn, citizens could be required to carry them openly and not concealed. Again, the Texas Founders were more concerned with CONCEALED arms than openly carried arms. Fourthly, the legislature could regulate, but not prohibit, the wearing of arms. The convention’s rejection of a power to prohibit the wearing of arms again affirms that the legislature might prohibit carrying concealed weapons, but could not prohibit carrying them openly. Texans were long since aware of the rule that “a statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them useless for the purpose of defence, would be clearly unconstitutional.” Finally, the power to regulate the wearing of arms was made contingent on the regulation being “with a view to prevent crime.” The wearing of arms could not be regulated for purposes other than to prevent crime. Wearing arms concealed for necessary self-defense, particularly in emergencies, or while hunting during inclement weather could be beyond legislative regulation because the conduct is manifestly not criminal. Moreover, a statute regulating the wearing of arms which demonstrably does not prevent crime could be beyond the legislative power to enact. So, even with the current wording of Art. 1 Sec. 23 of the Texas Constitution, any regulation of the “WEARING” of arms that can NOT be clearly demonstrated to “prevent crime” is beyond the power of the legislature or law enforcement. “We think it will prevent crime” or “we hope it will prevent crime” are wholly insufficient to meet that standard and any regulation currently in existence is subject to challenge on the grounds of whether it can be demonstrated that the regulation on the “wearing” of arms has in fact reduced or prevented crime.
Under the 1876 guarantee, the legislature (but not a locality) could regulate how arms were to be worn, i.e., openly or concealed, but could not bar the wearing of weapons per se. It was intended to repeal the broad legislative power in the 1869 Constitution and in particular the unpopular 1871 act which prohibited the bearing of arms anywhere but on one’s premises. The 1871 act was used to disarm and oppress the people and to set up a police state. The address of the convention to the people promised that the language of the new Bill of Rights protected the citizens’ liberties “by every safeguard known to constitutional law.” The constitution was submitted to a popular vote and ratified in early 1876. Those who thought that the new guarantee would restore the right to bear arms in Texas were in for a rude awakening.
When the Constitution of 1876 became effective, the courts began to render opinions on the 1871 Act which continued to rely on the Duke precedent and failed to mention what effect the new arms guarantee had on the act. In State v. Duke, the Texas Supreme Court, in an opinion by Justice Gould, repudiated the English v. State holding and concluded that the federal second amendment did not limit state action, Duke’s conclusion that the second amendment and other federal Bill of Rights provisions limited the United States but not the individual states was based on the United States Supreme Court’s restrictive views in The Slaughterhouse Cases and similar precedents. Ignoring the intent of the framers of the fourteenth amendment to incorporate the Bill of Rights, the Supreme Court took a narrow view of the privileges and immunities of citizens in its post-Reconstruction opinions. Of course, Duke did not consider whether the second amendment applied to the states through the fourteenth amendment. Duke remains the leading Texas authority on the arms right, even though it construed the no-longer-valid 1869 guarantee recognizing the right to bear arms “under such regulations as the Legislature may prescribe.” One such case, Lewis v. State (1877), contains the following seemingly contradictory sentences: “The statute prohibits all persons, except those exempted from its penalties therein, from carrying a pistol, or the other weapons named, either on or about his person, or saddle, or in his saddle-bags…. The statute is not intended to prevent keeping and bearing arms, but merely to regulate the manner in which they are to be carried and used.” It is unclear how a walker or a horseman could bear a pistol any other way than the prohibited way. Despite such contradictory analysis, the constitutional right to “keep” a pistol, even one carried in violation of the 1871 Act, was recognized as absolute and beyond the legislative power to regulate. Jennings v. State held: “We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. The Legislature has the power by law to regulate the wearing of arms, with a view to prevent crime, but it has not the power to enact a law the violation of which will work a forfeiture of defendant’s arms. While it has the power to regulate the wearing of arms, it has not the power by legislation to take a citizen’s arms away from him. One of his most sacred rights is that of having arms for his own defense and that of the State. This right is one of the surest safeguards of liberty and self-preservation.”
From the 1920s through the present, the Supreme Court has held the fourteenth amendment to protect free speech, freedom from unreasonable search and seizure, the right to counsel, freedom from self-incrimination, warnings before confession, speedy trial, compulsory process, jury trial, absence of double jeopardy, and so on. In a case involving a ban on handguns in the home in 1983, the court declined to hear and decide whether the right to keep arms is incorporated in the fourteenth amendment. Following the logic of previous cases, the Supreme Court could apply the second amendment to the states directly through the due process or the privileges and immunities clauses of the fourteenth amendment. It could also adopt a broader “penumbra” theory to guard the right to keep and bear arms from state infringement. Under this theory, un-enumerated rights protected by the ninth amendment could be defined, in part, by reference to the objectives of the other amendments—the first (privacy), the second (security and a free state), the third (protection of home), the fourth (protection of house and person), the fifth (protection of life, liberty, and property), and the tenth (“powers” reserved to the people). The reluctance to incorporate the second amendment into the fourteenth may stem from the uncertainty of whether the right to bear arms is a private, individual right or a collective, militia power. The framers of the second amendment held that it was both of those. Presumably, at some point the Supreme Court will address whether the fourteenth amendment protects a personal right to keep and bear arms.
In closing, looking back over Texas History it is clear that the Republic, and State, of Texas were founded upon the “absolute right” to keep and bear arms. Texas was founded as a free state for ALL men (and women) even before the Civil War. Reconstruction, corrupt martial law and military rule put in place laws and concepts that are both still in practice to this day and completely at odds with Texas values from its inception. Blatantly flawed court decisions based on wholly inadequate research and precedents “validated” blatantly unconstitutional laws and continue to be cited as justification for those unjust laws to this day. Recent legislative proposals in Texas seek to rectify this 140 year old unconstitutional infringement, yet many of the Texas legislators still believe they have the power to regulate the bearing of arms under the auspices of regulating the “wearing of arms.” The time has come, long overdue actually, to educate the people to the abuses they have suffered for over a century and, through the people, influence the legislature to end these abuses once and for all. Texas History, from its founding, has closely mirrored the evolution of the United States as a whole. In this case, Texas needs to lead the United States back to her founding principles, ideals, rights and freedoms. We can start by restoring the original right to arms that was first guaranteed to Texans, that being “Every citizen shall have the right to bear arms in defence of himself and the republic.” Period. End of discussion. We can then petition for a constitutional amendment to once and for all strike and restrict any legislative power to regulate the arms of citizens in any way. Finally, we must challenge Supreme Court precedents at every opportunity with a view to correct the inconsistencies that have wrongfully validated such legislative power in the past. We must take this fight for freedom to the federal level as well. Once we achieve our goals in Texas, we must translate that into federal action, by working to remove and repeal the infringements at that level and pursue court cases that will finally force a 14th amendment review and ruling in regards to the 2nd amendment. Such a victory will set the stage to free the rest of the States from unconstitutional tyranny in regards to the Absolute American Right to keep and bear arms, without restriction. Other states have already accomplished much of this, but due to the size and history of Texas, a victory here will have far reaching and historic effects. Remember The Alamo and what it was once like to be free men and women in Texas!
Jon Britton aka DoubleTap is Chief Operating Officer of CDH, Inc., a regular contributing author and regularly involved in most aspects of their social media. “Writing was never a goal or even vaguely contemplated as a career choice, it just happened, an accidental discovery of a talent and a passion.” A passion that has taken him in many directions from explorations of the zombie subculture and zombie stories to political advocacy. Joining the U.S. Air Force right out of high school, Jon had the opportunity to experience many different parts of the world and different cultures. His post military career path, both white collar and blue collar, allowed him to work alongside both CEOs and average Joes. As a founding member Cold Dead Hands his study of human nature and writing ability found a purpose. His zombie roots provided a variety of issues from prepping to human behavior under crisis to firearms that he applies to his advocacy for gun rights. A ravenous appetite for the study of history combined with his current events political junkie addiction led to him writing an e-book Gun Sense: Past, Present and Future.