Texas Democrat Introduces Bill to Remove Ban on "Brass" Knucks

Texas law currently bans a number of weapons. Represenative Joe Moody proposes to remove "brass" knuckles from the list of banned weapons in section 46.05 (a). Here is the list of banned weapons. From texas.gov:

(1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or otherwise not subject to that registration requirement or unless the item is classified as a curio or relic by the United States Department of Justice:

(A) an explosive weapon;
(B) a machine gun; or
(C) a short-barrel firearm;

(2) knuckles;
(3) armor-piercing ammunition;
(4) a chemical dispensing device;
(5) a zip gun;
(6) a tire deflation device; [or]
(7) a firearm silencer, unless the firearm silencer is classified as a curio or relic by the United States

Department of Justice or the actor otherwise possesses,
manufactures, transports, repairs, or sells the firearm silencer in
compliance with federal law; or

Representative Moody proposes to remove (2) knuckles from the list.  He gives, as his reason, gives an example of a young woman who is arrested for a keychain devise that fits the definition. From texasstandard.com:

We recently also lifted the prohibition on switchblades, and so switchblades, brass knuckles… we’re not living in “West Side Story,'” In a couple of instances, someone has a legitimate self-defense tool. A young woman who has a keychain for self-defense, certainly fits the statute of knuckles. And she was arrested for that. That is… certainly antithetical to our rights to self-defense.

Representative Moody is making the claim that such devices are in common use, and are typically used by lawabiding citizens for lawful purposes much more than used illegally by criminals. He is saying they should be removed from the banned list precisely because of that.

Representative Moody is on the correct track. Such items are used for lawful purposes, such as self-defense, much more commonly than they are used by criminals.  That logic applies equally to armor piercing ammunition and to firearm silencers, both of which are much more commonly used by citizens for lawful purposes, than used by criminals for criminal purposes.

Federal Judge Pamela K. Chen, in the Eastern District of New York in the Second Circuit, makes exactly that case as to why nunchakus cannot be banned under the Second Amendment, in the recent decision she wrote.  In her decision, she shows that all bearable arms fall under the Second Amendment.  To ban a weapon, the government must prove it is used by criminals more than by citizens for lawful purposes, or that it is unusual. From the decision:

Defendant cannot simply prove that nunchakus are not in common use in order to rebut the prima facie presumption of Second Amendment protection; Defendant must show that the “typical possession” of nunchakus is for an unlawful purpose. Id. at *3 & n.3. Notably, neither the parties nor the Court has “identified a single case in which a court has found that a bearable arm is outside of the scope of the Second Amendment simply because it is not in ‘common use.’” Id. at *2 (collecting cases).

In the list above, armor piercing ammunition, knuckles, and firearm silencers all meet those tests.

Judge Chen's decision is in the Second Circuit. Texas is in the fifth circuit, so the decision is not binding on Texas.

The logic is binding, and clear.

Representative Moody is on the right track. The bill should be expanded to remove armor piercing ammunition and firearm silencers from the list.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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