Friday, July 18, 2014

TX: First and Second Amendment Win in Arlington

The first and second amendments of the Bill of Rights are essential for supporting each other.   The first amendment is essential to support the second, while the second amendment provides the means to protect the first.   It is clear that the open carry of firearms is itself a strong political message.   Openly carrying a gun is protected political speech.

In Texas, open carry activists have been pushing hard to have the right to open carry modern handguns restored.   It was lost during reconstruction when the carpet bagger government rewrote the state constitution.   Open carry activists have participated in hundreds, perhaps as many as a thousand open carry walks or demonstrations throughout the state, educating the public and being smeared in a media campaign by the Bloomberg machine designed to blunt their success.

Local elites sometimes oppose open carry, even in Texas.   In Arlington, the local government started to enforce an ordinance that forbid demonstrators from handing out literature to people in vehicles on the public streets.  

The ordinance dated from 1994, and had not been enforced before the open carry movement.

Kory Watkins and Open Carry Tarrant County filed suit against the City of Arlington for violation of their first amendment rights and filed for a preliminary Injunction and Temporary Restraining Order on May 28th, 2014.  The City of Arlington argued against the injunction and restraining order.

On July 14, 2014, the United States District Court found for Kory Watkins and Open Carry Tarrant County.   The City of Arlington will have to cease enforcement of the ordinance while the lawsuit is in progress.   In order to reach this finding, the judge found that it was likely that Watkins and Open Carry Tarrant County would prevail in their lawsuit.

The decision runs to 26 pages of tightly argued case law.   Here is the summation at the beginning of the decision:


Before the Court are Plaintiffs’ Combined Application for Preliminary Injunction and Temporary Restraining Order and Memorandum in Support (ECF Nos. 5-6), filed May 28, 2014;Defendant’s Response and Brief in Opposition (ECF No. 11), filed June 2, 2014; and Plaintiffs’ Reply (ECF No. 13), filed June 5, 2014. Plaintiffs seek injunctive relief preventing the enforcement of the City of Arlington’s ordinance prohibiting interactions between pedestrians and occupants of vehicles at particular intersections in Arlington, asserting the ordinance unconstitutionally prohibits Plaintiffs’ free speech rights. Having reviewed the motion, the briefing, and the applicable law, the Court finds that Plaintiffs’ motion should be and is hereby  GRANTED.
The decision makes it clear that the City Ordinance violates the first amendment.  I will be surprised if the City does not settle soon.   It would cut their losses.   They have nothing to gain from prolonging this law suit, but then, they are spending other people's money.

Some interesting information came out in this decision.   Kory Watkins testifies that he has been personally involved in about 200 open carry walks and that the only time that anyone has been cited has been in Arlington:

Watkins testified that in the past year he has personally been on over 200 walks and has organized and been a part of “[h]undreds and hundreds” of walks and, to his knowledge, nobody has ever been hurt or cited for impeding traffic.
See id.

at 3-4. He stated that the only time anyone has been cited for something were the two individuals cited for violations of the previous version of Section 15.02.
Id. at 4.
I have known that Texas open carry activists were, well, active.   I did not know the extent of the activity.   Hundreds, perhaps more than a thousand open carry walks and demonstrations all over the state.   No wonder they are having a positive effect.   With that amount of activity, I am not surprised that the Bloomberg media campaign was able to find a photograph to demonize the open carriers.  No one can be perfect 100 percent of the time.

If you wish to educate yourself on the state of first amendment decisions protecting the right to distribute literature on public sidewalks, read the whole decision.     It is well written.   Reading it gives hints as to how broad an interpretation could be given to the second amendment in states such as Louisiana and potentially Missouri and Oklahoma, where constitutional amendments would require that the courts apply strict scrutiny to the right to keep and bear arms.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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