The law continues to evolve, and your strategy for defending yourself in the face of a legal charge should do the same. Several recent cases involving gun charges could directly improve your ability to effectively defend yourself in the event one is levied against you.
A better understanding of your rights and how the law applies regarding gun charges can help you better protect yourself and your future, and the most important step you can take in the process is reaching out to the skilled legal counsel of an experienced Round Rock criminal defense attorney.
New York State Rifle & Pistol Ass’n, Inc. v. Bruen
New York State Rifle & Pistol Ass’n, Inc. v. Bruen is one of the most significant gun rights cases heard by the Supreme Court in recent years. In their 6-3 decision, the Court determined that judges hearing gun possession cases must consider whether the state’s gun law adheres to the nation’s historical tradition of firearm regulation.
From this, a new legal test was born that allows criminal defense attorneys to challenge both gun laws and gun charges to defend their clients’ rights and support more favorable case resolutions.
The Bruen Test
The so-called Bruen test, which is also called the text, history, and tradition test, replaces the prior 2A test – or the two-part test, and significant legal changes are expected. In the two-part test, courts must first determine if the Second Amendment applies to the restricted gun issue at question in the case at hand.
Once this is established, the second part of the test comes into play, and this asserts that the restriction in question is only allowable if it comports with firearm regulations that were in place historically.
The Bruen test, on the other hand, requires courts to look toward similar or analogous laws when making decisions in gun charge cases. Two Texas cases demonstrate the effects of this shift.
Andrews v. McGraw
In the 2022 case Andrews v. McGraw, a Texas district court struck down the state’s ban on handgun carry for people aged 18 to 20 based on Bruen’s text, history, and tradition test. The upshot is that, historically, there was no such ban.
USA v. Quiroz
In the 2022 case USA v. Quiroz, a federal court in Texas struck down a law that had been in effect for more than 50 years banning those under indictment for certain crimes from purchasing guns. The judge found that there was little evidence that the law aligns with the nation’s historical tradition.
Your Second Amendment Rights
The right to bear arms in this country is well-established and steeped in tradition, and Bruen frames this right even more succinctly. This ruling demonstrates that the landscape of gun laws is changing and highlights the immense impact that having skilled legal representation in your corner can have.
U.S. v. Rahimi: Domestic Violence Restraining Orders
U.S. v. Rahimi is a 5th Circuit Court of Appeals case covering Texas, Mississippi, and Louisiana that overturned existing federal law in these states. The overturned law that’s been in effect for nearly three decades was designed to protect victims of domestic abuse by prohibiting those with domestic violence restraining orders against them from purchasing and possessing guns.
Prior to Bruen, this ban was routinely deemed constitutional, and the current case will be reviewed by the Supreme Court during its 2023-2024 term.
U.S. v. Perez-Gallan is a similar case in which the defendant – who was subject to a restraining order – was carrying a firearm at a Texas border checkpoint, which is in violation of federal law. Upon application of the Bruen test, however, a U.S. district court found the law unconstitutional.
Garland v. Cargill: Bump Stocks
In Garland v. Cargill, the Supreme Court is addressing the question of whether a bump stock – or a device that’s used to convert an ordinary rifle into one that can fire multiple shots with one pull of the trigger – is a machine gun under federal law.
Further, Garland v. Range addresses whether someone who has been convicted of a crime that is punishable by a prison sentence of more than a year can be banned from possessing a firearm.
The outcome of these pending cases and the full implications of those that have already been determined aren’t yet known, but – depending on the circumstances of your case – they could afford you more considerable protections and more comprehensive defense strategies.
When a License Is Required for Weapons Possession in Texas
Texas employs what is known as constitutional carry, which means you generally don’t need a license or permit to purchase or own a firearm except under specific situations. Consider the following relevant points:
There is no state requirement in Texas regarding the purchase of firearms, but any firearms purchased through licensed dealers require federal background checks.
The Texas Department of Public Safety issues concealed carry licenses, but having a concealed carry license is only required under limited circumstances.
Texas requires no permit or license to carry a long gun, such as a rifle or shotgun, in public places – as long as guns aren’t prohibited overall in the space.
Common Gun Charges in Texas
Some of the most common gun charges levied in the State of Texas fall into the following categories:
Illegally possessing or carrying a weapon, which includes the unlawful possession of a weapon, felon in possession of a weapon, and unlawful possession of a weapon in a weapons-free zone
Improperly discharging a gun
Unlawfully selling a weapon
Using a weapon in the commission of a crime, including threat with a deadly weapon, aggravated assault, and assault with a deadly weapon
The related fines and penalties depend on the crime charged and the circumstances involved.
Firing a Gun in Public
Firing a gun in public is a Class B misdemeanor in Texas, which carries up to 6 months in jail and fines of up to $2,000. If the gun is fired within the limits of a city or town that has a population of 100,000 or more, the charge is elevated to a Class A misdemeanor, which can earn you up to a year in jail and fines of up to $4,000.
Possessing an Illegal Weapon
It is a Class A misdemeanor to possess certain kinds of weapons, including brass knuckles and switchblade knives. A conviction carries a jail sentence of up to a year and fines of up to $4,000.
Selling a Gun Illegally
Selling or providing a gun to someone who isn’t allowed by law to have one is a Class A misdemeanor that carries up to a year in jail and fines of up to $4,000.
Carrying a Gun Illegally
Illegally carrying a gun is also a Class A misdemeanor, carrying up to a year behind bars and fines of up to $4,000. Even with a license to carry, it is a Class A misdemeanor to carry a weapon in certain places in the state of Texas, including churches, amusement parks, hospitals, buildings where government meetings take place, and sporting events.
A conviction can lead to fines of up to $4,000 and a jail sentence of up to a year.
Carrying a gun to a polling place on election day, to a court, to a school, or to a racetrack – on the other hand – is a third-degree felony that can leave you facing from 2 to 10 years in prison and fines of up to $10,000.
Carrying a Gun in a Business that Sells Alcohol
Carrying a gun at a business that earns more than half its profits from the sale of alcohol, such as a bar, is a third-degree felony, and a conviction can mean a prison sentence of from 2 to 10 years and fines of up to $10,000.
Using a Gun in the Commission of a Violent Crime
When a gun is used in the commission of a violent crime – whether the weapon is fired or not – the charge is elevated to a first-degree felony, which carries a prison sentence of from 5 to 99 years or a life sentence and fines of up to $10,000.
The Legal Basics of Carrying a Gun in Texas
Since Texas adopted constitutional carry in 2021, it is no longer necessary to obtain a license to carry in order to carry a gun legally in the state. Obtaining a license, however, affords some additional privileges.
In Texas, handguns must be holstered, but the requirement that the holster be either a shoulder or belt version no longer applies. If you keep a handgun in your car, it must either be holstered or kept in one of the following secure locations:
A gun case
A closed glove box
A locked center console
The advantages of obtaining a license to carry in Texas include all the following:
There are fewer restrictions regarding where you can carry.
You can quickly demonstrate to law enforcement that you aren’t carrying with illegal or malicious intent.
It alleviates any doubt regarding whether it’s legal for you to carry a handgun or not – constitutional carry includes a range of intricacies.
FAQ
The answers to the following frequently asked questions about gun possession in Texas may help clarify some of your own.
How do recent court rulings affect my case?
If you are facing a gun possession charge, it’s a serious matter, and having skilled legal guidance on your side is always advised. Recent developments in the Supreme Court and in Texas courts have called the constitutionality of current interpretations of gun laws into question, which may expand your defense strategies moving forward.
Aren’t gun laws slow to change?
While laws in general are slow to change, gun laws in Texas and throughout the nation continue to evolve, and we’ve seen considerable movement since Texas implemented constitutional carry in 2021. Now, most people in most situations don’t need a license in order to carry a handgun in the state. Further, recent Supreme Court rulings are tending toward more expansive gun rights.
Can I carry my gun in a business?
Most businesses throughout Texas have the option of allowing guests to carry guns or not, and many ban guns for those who don’t have a license to carry. Businesses that ban guns are required to post signs that let customers know. It is illegal to carry a gun on the premises of a business that obtains at least 51 percent of its profits from the sale of alcohol, such as a bar.
When is carrying a gun always restricted?
There are certain places where it is always against the law to carry a gun in Texas, including:
Court buildings and related offices
Hospitals and related offices
Racetracks and sporting events
Polling places and buildings that handle either early or election voting
Any business that post signs specifically prohibiting guns
Can I carry a gun in my vehicle?
If it’s legal for you to carry a gun, it’s legal for you to carry a gun in your car in Texas – as long as it’s either holstered or securely enclosed in a glove box, case, or locked console. While you’re not required to tell the police you have a gun in your car if you’re stopped, it’s illegal to answer untruthfully if the police ask you whether or not you have a gun in your car.
An Experienced Round Rock Criminal Defense Attorney Is Standing By to Help
Brett Pritchard at The Law Office of Brett H. Pritchard is a formidable Round Rock criminal defense lawyer with keen legal insight regarding the evolution of gun laws in Texas, which can translate to improved case outcomes. For more information about what we can do to help you, please don’t wait to contact or call us at 254-781-4222 and schedule your free consultation today.