Thursday, May 06, 2021

How Texans Lost the Right to Bear Handguns

Image from wikipedia, cropped and scaled by Dean Weingarten

During the debate over HB1927, in the Texas Senate Special Committee on Constitutional Issues, Senator Eddie Lucio (D) made a starting assertion. He stated Texans could not have the right to bear arms restored,  because the right to bear arms has not been infringed. At about 05:01:50, He asked, During the testimony of Andi Turner, Legislative director for the Texas State Rifle Association:

When did we lose them?...

Later he said, about 05:04:30 : 

We never lost the right to bear arms in this state. 

Then he references Matt Dillon and Dodge as an example of where the right did not exist. ("unless they are lying to us on those shows..."). Who would think a fictional western might not be true..?

In the case of Texas, we know precisely when the right to bear arms was taken away. It was on 5 July, 1869, when the Texas Constitution of 1869 was ratified. The right to bear long guns was restored on 15 February, 1876. The right to bear handguns was never restored.

Texas was born in revolution, with many similarities to the American revolution, only 50 years after the American declaration of independence in 1776.  In 1835, Santa Anna and a new Mexican government assumed absolute power and overthrew the existing liberal Constitution. Texans decided to fight to maintain their rights, along with several other Mexican states. As with the United States, the initial skirmish occurred with an attempt to confiscate weapons. Texas was successful in its bid for independence and wrote its first constitution in 1836. 

The Texas Constitution of 1836 had strong right to keep and bear arms protections. It came directly from the recent experience of the necessity of arms for defense of self and the community. From the 1836 declaration of rights:

"Fourteenth. Every citizen shall have the right to bear arms in defence of himself and the Republic. The military shall at all times and in all cases be subordinate to the civil power."

In 1845, Texas joined the United States. Texans approved of a new state constitution. It contained a very strong right to keep and bear arms. From the Texas Constitution of 1845, considered one of the best ever written:

SEC. 13. Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State.

The right to arms was considered to be so strong in Texas, the Texas Supreme Court wrote the right to keep and bear arms for self defense was absolute. From Clayton Cramer, quoting Cockrum v. State, 1859: 

Cockrum v. State (Tex. 1859): upheld a sentence enhancement for manslaughters committed with a Bowie knife, but acknowledged that the Texas Constitution's right to keep and bear arms guaranteed a right to carry such a weapon, and appears to have conceded that the Second Amendment also guaranteed an individual right.  "The object of the clause first cited [the Second Amendment], has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed.  The clause cited in our Bill of Rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen.  The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute....  The right to carry a bowie-knife for lawful defence is secured, and must be admitted."

Texas joined with the Confederacy in 1860.  The Confederacy lost the war. Texas created a new constitution in 1866. The new constitution eliminated slavery and repudiated the Ordinance of Secession. It was created to regain entry to the Union. The Constitution of 1866 kept the right to keep and bear arms. From the Constitution of 1866:

SEC. 13. Every citizen shall have the right to keep and bear arms, in the lawful defence of himself or the State.

The radical Republicans were not satisfied with the Constitution of 1866. They created a new Texas Constitution in 1869.

The 1869 Constitution gutted the right to keep and bear arms, with this adulterated version of a "right", which was not a right at all.

 "Every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the legislature may prescribe."

In the contentious elections of 1872  and 1873, Texans voted out the carpetbagger government.  The governor begged for federal troops to support him, but none were sent.  He escaped the governor's mansion as a spontaneously organized militia of armed citizens threatened to throw him out.

After the end of reconstruction, the Texas legislature approved of a new Constitution, in 1876.  The Democrats in charge appear to have liked the power to disarm former slaves and others out of favor with the local authorities. They did not return to the right to arms of the 1845 and 1866 Constitutions. 

They removed the right to bear "wearable arms" and gave the state the power to regulate them. From the 1876 Constitution:

"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 right to bear all arms had been taken away in 1869. It was only partly restored on 15 February, 1876, with the ratification of the Texas Constitution of 1876. The right to bear "wearable arms" such as pistols and knives, remained lost. Democrats would control Texas for over a century.


©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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BT2PO2 said...

It sounds as if Senator Luci needs to have dozens of copies of this article sent to his official e-mail address. Hopefully he will actually read it and gain some insight.

Anonymous said...

The issue being the right to keep and bear arms is required of every state to be admitted to the union to recognize the federal constitution above their own. The Texas constitution is the only state constitution that reserved the right to secede from the union at any time. The federal constitution is superior to any state constitution, Therefore the second amendment as written in the Bill of rights is superior to any unconstitutional state law. No state has the constitutional authority to amend the bill of rights so there are no valid state gun laws. Any wording other than the 26 words written in the second amendment are infringement by definition. Shall not be infringed must be changed or amended first. The U.S. congress has never had the authority By shall Not be infringed to write laws or acts concerning the second amendment. Government does not control the people the people control the government. That is the reason the constitution exists. Government can not construe any thing to exist that is not physically written. There is no authority for even congress to change the second amendment guarantee. There can be no limit on the right of self defense. Liberals can scream all they want they scream even louder when their unarmed ass is being attacked.

Anonymous said...

he Framers kept it very simple there is no age, gender or race written in the second amendment and no definition of what arms are. Keep and bear any thing you can lift. Nothing about loaned or borrowed. It even does not mention after you are released from jail. Everyone able to walk free has the right to self defense any where at any time..