From: cramer@optilink.com (Clayton Cramer)
Newsgroups: rec.guns
Subject: Re: Firearms in Texas; an update on responses received
Date: 11 Sep 92 02:50:55 GMT
Organization: Optilink Corporation, Petaluma, CA


[MODERATOR:  This is a long posting, but very much in the spirit of providing
information to the group.  Thanks to Clayton for sharing his research with
us!]

In article <5630@blue.cis.pitt.edu.UUCP>, gswst@gl.pitt.edu (Gary S. Wachs) writes:
# I received a lot of very good responses to my inquiry about Texas rule
# of law regarding firearm possession and use.  Thanks to all those who
# contributed; well over 50 individuals, many of whom included an entire
# transcript of page 109 of ATF P 5300.5, 'State Laws and Published Ordinances -
# Firearms' 19th Edition ("INFORMATION CONCERNING THE CARRYING AND POSSESSION 
# OF WEAPONS").  
# 
# It is clear that there is no legal way for a civilian living in Texas to
# carry a handgun for self-defense.  So much for the 2nd ammendment. My God,
# what led this this?
# 
# Gary

Here I am, answering his question, and shilling for my upcoming
book, from which this is excerpted.  Please ignore the index
entry marks, and other quirks caused by trying to ASCII-fy this:

            Texas

              Texas,  unlike   the  other  states  of  the  Confederacy,

            remained a  frontier society.   The  close of  the Civil War

            appears to  have led  to a  dramatic increase  in violence j

            though from  the sketchy  available evidence,  in quite  the

            opposite direction  feared by  the whites of the deep South.

            The Texas  Constitutional Convention  of 1868-69  compiled a

            report  on  lawlessness  and  violence  from  a  variety  of

            sources; while  there is  reason to suspect the accuracy and

            completeness of  the data,  even a  historian with  a strong

            bias against the report has agreed that violence had reached

            unprecedented levels during this period.

              From the  close of the war to June, 1868, the report found

            1,035 murders  had been  committed: 509  of the victims were

            white, and  409 victims  were freedman.    The  Convention's

            report  may   have  overemphasized   political  and   racial

            motivations for  these murders,  but it is clear that murder

            was a  large and  increasing problem.   The  combination  of




                                        -278-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"


            disenfranchised whites,  newly freed blacks about to get the

            vote, and  a variety  of adjustment  problems as  the former

            slaves and  former  slaveholders  worked  out  new  economic

            relationships, would  seem to  have  been  factors  in  this

            problem.90   The 1860  population of  Texas was  604,000; by

            1870, the  population was  819,000.91    If  we  accept  the

            population during  the period  1865-1868  as  700,000,  this

            would  give   an  annual  murder  rate  of  49  per  100,000

            population j  more than  four times  the highest murder rate

            for the entire United States in the twentieth century.92

              Circumstances leading  to the  1869 state  elections  were

            highly  irregular;  the  military  governor  of  Texas  both

            announced the  results and  appointed  Edmund  J.  Davis  as

            Provisional  Governor.93     Actual  control  of  the  state

            government remained  in the  hands of  General Reynolds, the

            military governor,  until April  16, 1870.94  Governor Davis

            and the  Radical Republican  dominated legislature  passed a

            ____________________
              90 Charles William Ramsdell, Reconstruction in Texas, (New
            York, Columbia University Press: 1910), reprinted
            (Gloucester, MA, Peter Smith: 1964), 219-224.  Ramsdell's
            work, while a scholarly history, by a recognized academic of
            the time, reflects both a strong Texas regional bias, as
            well as an openly negative view of both blacks and
            Republicans.  At least his biases were out in the open j one
            of the saving graces of works of the period.  Also, see
            Foner, 119-123, for evidence that this problem of violence
            directed against freedmen was not confined to Texas.
              91 Historical Statistics of the United States, Colonial
            Times to 1970, (Washington, DC, Government Printing Office:
            1975), 35.
              92 Bureau of Justice Statistics, Report to the Nation on
            Crime and Justice, 2nd ed., (Washington, DC, Government
            Printing Office: 1988), 15.
              93 Ramsdell, 285-286.
              94 Ramsdell, 289, 291-292.



                                        -279-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE



            series of  laws  designed  to  deal  with  the  problems  of

            lawlessness: organizing  a state militia;95 creating for the

            first time,  a state  police force  of 250  men,  under  the

            direct  control   of  the   governor;  and  a  law  to  "put

            restrictions on  the indiscriminate  carrying  of  dangerous

            weapons."96   It appears  that the State Police succeeded in

            suppressing the  Klan's violence, "providing freedmen with a

            real  measure   of  protection  in  a  state  notorious  for

            widespread violence."97

              The act  of April  12, 1871  made it illegal to carry arms

            openly.   It was  quickly challenged, and in 1872, the Texas

            Supreme Court  wrote a  single decision  which covered three

            rather different cases: William .i.English v. State (1872);,

            State v. G. W. Carter, and State v. William Daniel, appealed

            from the  district courts  of Marion, Kaufman, and Van Zandt

            counties, respectively.98   All  involved a violation of the

            new law, which prohibited the carrying of .i.pistol;s, Bowie

            knives,  .i.sword-cane;s,   spears,  .i.brass   knuckles;,99

            "unless he  has reasonable  grounds for  fearing an unlawful

            attack on  his person,  and that such ground of attack shall

            be immediate  and pressing,"  with the  usual exemptions for



            ____________________
              95 Ramsdell, 295-296.
              96 Ramsdell, 297-298.
              97 Foner, 440.
              98 English v. State, 35 Tex. 473 (1872).
              99 English v. State, 35 Tex. 473 (1872).  In a later case
            j State v. Duke, 42 Tex. 455 (1875) j the Texas Supreme
            Court quoted the entire law in question, but cites it as the
            act of April 11, 1871, not April 12.



                                        -280-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"


            peace officers,  active members of the militia, and in one's

            own home or business.100

              Each of the cases was somewhat different, and yet a single

            decision was rendered for all:
              
              In  English's   case  the   offensive  weapon   was   a
              .i.pistol;, and it was proved that he was in a state of
              intoxication while  wearing it  about in  the  city  of
              Jefferson.   He proved, in defense, that the pistol was
              not loaded  at the  times it  was seen by the witnesses
              against him;  and further,  that it  was out of repair,
              and he  had taken  it along with him to have it mended,
              as he expected soon to go to a neighboring county after
              his mother, and wished to carry the pistol with him.101
              
              The charge  against Daniels was going "into a religious
              assembly, having  about his  person a  butcher  knife."
              The  state's   witnesses  proved   that  they  saw  the
              defendant in  church on  the occasion  in question, and
              that the  handle of  a butcher  knife was  sticking out
              above the  waistband of  his breeches,  and between the
              skirts of  his frock  coat.   They saw  nothing but the
              handle.  The court below charged that the handle raised
              a presumption of a blade.
              
              No transcript in Carter's case has come to the hands of
              the reporter, nor any brief in his behalf, or in behalf
              of Daniels.102
              

            Of course, this is not surprising; from the form of the case

            names involving  Carter and  Daniel, it  would  appear  that

            Carter and Daniel succeeded in persuading the district court

            judge that  the cases  against them  were without merit, and

            that these  were appeals  by the prosecutor.  In the case of

            Carter,  the  Texas  Supreme  Court  reversed  the  district

            court's decision.



            ____________________
              100 State v. Duke, 42 Tex. 455, 456, 457 (1875).
              101 English v. State, 35 Tex. 473 (1872).
              102 English v. State, 35 Tex. 473, 474 (1872).



                                        -281-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE



              In the  case of Daniel, or Daniels (for the Court referred

            to this  defendant by both names, and the case as both State

            v. Daniel103  and Daniels  v. State), the Court affirmed the

            decision of the district court.104  Was Daniels convicted by

            the district  court, or  released?   The lack  of  brief  on

            behalf of  Daniels suggests  that he was already a free man,

            and had  no reason to appeal the district court's decision j

            a problem  that repeatedly  occurs in  cases  involving  the

            right to  keep and  bear arms.  Not surprisingly, without an

            advocate opposing  such laws,  the court  would be primarily

            influenced by the brief filed by the attorney general.

              The Court  quoted Bishop's Criminal Law to the effect that

            the Second  Amendment was  a restriction  not  only  on  the

            federal government,  but on  the states as well, in language

            that sounds  like an echo of Rawle's statements in A View of

            the Constitution.    The  Court  quotes  Bishop's  amazingly

            straightforward admission  that there  was no  authority for

            the narrow  view of  "arms" given  in  .i.Aymette  v.  State

            (1840);:
              
              As to  its interpretation,  if we look to this question
              in the  light of  judicial reason,  without the  aid of
              specific authority,  we shall  be led to the conclusion
              that the  provision protects  only the  right to 'keep'
              such 'arms'  as  are  used  for  purposes  of  war,  in
              distinction from  those which  are employed in quarrels
              and broils,  and fights  between maddened  individuals,
              since such  only are  properly known  by  the  name  of
              'arms,' and  such only  are  adapted  to  promote  'the
              security of a free state.'  In like manner the right to
              'bear' arms  refers merely to the military way of using

            ____________________
              103 English v. State, 35 Tex. 473 (1872).
              104 English v. State, 35 Tex. 473, 481 (1872).



                                        -282-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"

              them, not  to  their  use  in  bravado  and  affray.105
              [emphasis added]
              

              The Court  also quotes  Bishop with respect to the Georgia

            decision .i.Nunn  v. State (1846);, the series of antebellum

            Louisiana decisions,  and  .i.Alabama;'s  .i.Owen  v.  State

            (1858);.   The .i.Texas  Supreme Court; then cited Bishop as

            asserting that  "the  doctrine  generally  approved  by  the

            American authorities"  is the  one taken  in  .i.Aymette  v.

            State  (1840);,   .i.State  v.  Reid  (1840);,  .i.State  v.

            Mitchell (1833);,  and .i.State v. Newsom (1844); j and then

            tells  us   this  doctrine  is  accepted  by  .i.Blackstone,

            William;:
              
              [T]he offense  of riding  or going  around  armed  with
              dangerous or  unusual weapons  is a  crime against  the
              public peace,  by terrifying  the good  people  of  the
              land.106
              

            But of  course, the  decisions taken in Aymette and Reid are

            very different  j  only  concealed  carry  was  held  to  be

            unprotected in Reid, while open carry was clearly protected;

            in Aymette,  the  issue  of  open  carry  was  not  directly

            addressed, though  it was  implied that  open carry  was not

            protected.

              The Court  next addressed  the  issue  of  what  arms  are

            protected:
              
              To refer  the deadly  devices and instruments called in
              the  statute   "deadly  weapons,"   to  the  proper  or
              necessary arms  of a  ".i.well-regulated; militia,"  is
              simply ridiculous.  No kind of travesty, however subtle
              or ingenious,  could so  misconstrue this  provision of
            ____________________
              105 English v. State, 35 Tex. 473, 475 (1872).
              106 English v. State, 35 Tex. 473, 475, 476 (1872).



                                        -283-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE


              the constitution  of the  United States,  as to make it
              cover and  protect that  pernicious vice, from which so
              many murders,  assassinations, and deadly assaults have
              sprung, and which it was doubtless the intention of the
              legislature to punish and prohibit.  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 the
              .i.bayonet;;   of   .i.cavalry;   and   dragoons,   the
              .i.sabre;, holster  .i.pistol;s and .i.carbine;; of the
              .i.artillery;, the  field piece, siege gun, and mortar,
              with side arms.
              
              The terms dirks, .i.dagger;s, .i.slungshot;s, .i.sword-
              cane;s, brass-.i.brass  knuckles; and  bowie knives, do
              not belong  to 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.107
              

            The Court  made a distinction between a .i.bayonet;, a piece

            of military  equipment which every member of the militia was

            required to  own under  the Militia  Act of  1792,108 and  a

            ".i.dagger;" or  "bowie knife".   If  such a distinction was

            valid in  1872, it  has evaporated  today, when .i.bayonet;s

            have become  equivalent to  a nineteenth century Bowie knife

            in size,  and combat  knives are  issued to  soldiers.   But

            those arms  that were  unambiguously military  weapons, were

            completely  protected.     The   discrepancy  between   this

            decision, and  .i.Cockrum v.  State (1859);,  is  a  yawning

            chasm.

              Yet the  Court did  agree that  there  were  circumstances

            under which  the carrying  of deadly  weapons  for  personal

            defense was appropriate, if not constitutionally protected:
              

            ____________________
              107 English v. State, 35 Tex. 473, 476, 477 (1872).
              108 Annals of Congress, 2 Cong., May 8, 1792, 1394.



                                        -284-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"

              The act referred to makes all necessary exceptions, and
              points out  the place, the time and the manner in which
              certain deadly  weapons may  be  carried  as  means  of
              .i.self-defense;, and  these exceptional  cases, in our
              judgment, fully  cover all the wants of society.  There
              is no  abridgement of  the personal rights, such as may
              be regarded  as inherent and inalienable to man, nor do
              we  think   his  political  rights  are  in  the  least
              infringed by any part of this law.109
              

              The Court  then echoed the language of .i.Aymette v. State

            (1840); about the evils of revenge:
              
              It will doubtless work a great improvement in the moral
              and social  condition of men, when every man shall come
              fully to  understand that,  in the great social compact
              under and by which states and communities are bound and
              held together,  each  individual  has  compromised  the
              right to  avenge his  own wrongs,  and must look to the
              state for  redress.   We must not go back to that state
              of  barbarism   in  which  each  claims  the  right  to
              administer the  law in  his own  case; that  law  being
              simply the  domination of  the strong  and the  violent
              over the weak and submissive.
              

            But as  with Aymette,  the  Court  blurred  the  distinction

            between revenge  and .i.self-defense;  j holding that having

            the ability  to defend oneself was equivalent to taking away

            the state's authority to try and punish a criminal.

              The  Court's   feelings  on   personal  liberty  are  also

            explicated:
              
              It is  useless to  talk about  personal  liberty  being
              infringed by  laws such  as that  under  consideration.
              The world  has seen  too  much  licentiousness  cloaked
              under the  name of natural or personal liberty; natural
              and personal  liberty are  exchanged, under  the social
              compact of states, for civil liberty.110
              

              With  respect   to  the   more   narrowly   worded   Texas

            Constitutional provision:
            ____________________
              109 English v. State, 35 Tex. 473, 477 (1872).
              110 English v. State, 35 Tex. 473, 477 (1872).



                                        -285-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE


              
              It is  further claimed  that this is a law in violation
              of the  thirteenth section,  first article,  of our own
              constitution, which  reads thus:  "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."  We understand the
              word "arms,"  when used  in this  connection, as having
              the same  import and  meaning which it has when used in
              the amendment of the federal constitution.111
              

            But where  the Court  held that the Second Amendment did not

            protect  an   individual  right  for  .i.self-defense;,  the

            language of the Texas Constitution was explicitly individual

            ("Every person  shall have the right to keep and bear arms")

            and explicitly  for .i.self-defense; ("in the lawful defense

            of himself").   The argument might be advanced that "defense

            of himself  and the state" implied that such defense must be

            one and  the same,  but even  this avenue  of  argument  was

            closed  because   the  Texas  Constitution's  provision  is,

            "defense of himself or the state."

              Without question,  the .i.Texas  Constitution;al provision

            gave the  Legislature authority  to regulate the keeping and

            bearing of  arms.   But  unlike  many  other  courts,  which

            recognized that  it was  possible to  regulate a  right into

            non-existence,  the   Texas  Supreme  Court  held  that  the

            legislature had regulated it by this law, without taking the

            right away.112

              That the  Court intended  some nineteenth  century "social

            engineering" can  be found  in the closing paragraphs of its

            decision:
            ____________________
              111 English v. State, 35 Tex. 473, 478 (1872).
              112 English v. State, 35 Tex. 473, 478 (1872).



                                        -286-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"

              
              But a  law is  not be to be set aside because it may be
              repugnant to  the wishes,  or distasteful to a class of
              the community,  for it  is generally to that class that
              the law is more especially addressed.  Were such a rule
              to obtain  in civilized  states,  it  would  operate  a
              revocation of  all legislative functions; the mob would
              assume to  declare what  should be law, and what should
              not.   There  could  be  no  reformation  of  evils  in
              society.   Communities and states would degenerate just
              in proportion as their laws were wise and wholesome, or
              foolish and immoral.113
              

            Careful reading  of these sentences leads to some disturbing

            questions: what  "class  of  the  community"  was  this  law

            supposed to  reform?   What "mob"  was the  Court  concerned

            about?  Somehow, the language of this decision makes it hard

            to picture  a small  number of  criminals as  the class  the

            Court felt compelled to restrain and chastise.

              Even more  astonishing is the wishful thinking and elitist

            sentiment expressed in the next paragraph:
              
              The law  under consideration has been attacked upon the
              ground that  it was  contrary  to  public  policy,  and
              deprived the  people of the necessary means of .i.self-
              defense;; that  it was  an innovation  upon the customs
              and habits  of the  people, to  which  they  would  not
              peaceably submit.   We do not think the people of Texas
              are so  bad as  this, and  we do  think that the latter
              half of  the nineteenth  century is  not too  soon  for
              Christian and civilized states to legislate against any
              and every  species of  crime.   Every system  of public
              laws should  be, in  itself, the purest and best system
              of public morality.  We will not say to what extent the
              early customs  and habits  of the  people of this state
              should be  respected and  accommodated, where  they may
              come in  conflict with  the ideas  of  intelligent  and
              well-meaning legislators.   A  portion of our system of
              laws, as well as our public morality, is derived from a
              people the  most peculiar  perhaps of  any other in the
              history and  derivation of  its own  system.  Spain, at
              different periods  of the  world, was dominated over by
              the Carthagenians,  the Romans, the Vandals, the Snovi,
              the Allani,  the Visigoths,  and Arabs; and to this day
            ____________________
              113 English v. State, 35 Tex. 473, 479 (1872).



                                        -287-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE


              there are found in the Spanish codes traces of the laws
              and customs  of each  of these nations blended together
              in a  system by  no means to be compared with the sound
              philosophy and  pure morality of the .i.common law;.114
              [emphasis added]
              

              Are we  to interpret  this  laughable  comparison  of  the

            .i.common law; to Spanish law as indicating that the statute

            was aimed  at the Hispanic population of Texas?  None of the

            defendants have  Hispanic names;  yet this may indicate only

            the  quality   of  justice,   and  possibility  for  appeal,

            available to  Hispanics who  violated this  law.  And, as we

            have also  seen, the .i.common law; did recognize a right to

            both .i.self-defense;, and a right to carry arms.

              Three years  passed, and  in the  intervening period,  the

            Republicans lost  control of  Texas,115  though  not  before

            Democrats and a black militia came close to armed warfare in

            the statehouse.116   The Democrats, once again in control of

            the legislature,  rapidly repealed  many of  Governor Davis'

            measures, including the state police,117 but not the weapons

            restrictions.

              In the  next case,  .i.State v.  Duke (1875);, George Duke

            was indicted  for violation of this act; it was charged that

            Duke did  "unlawfully carry  on his  person one  .i.pistol;,

            known as a six-shooter."  The trial judge in Caldwell County

            set aside  Duke's indictment on the grounds that a violation

            of law  had not  been charged,  because the  carrying  of  a

            ____________________
              114 English v. State, 35 Tex. 473, 479, 480 (1872).
              115 Viault, 17-18.
              116 Ramsdell, 316-317.
              117 Ramsdell, 313.



                                        -288-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"


            .i.pistol;, by  itself, was  not a  violation of the law.118

            The rather  technical nature  of the indictment's inadequacy

            occupied much  of the  Court's decision in this case, and is

            uninteresting from  the standpoint  of the right to keep and

            bear arms.

              However, the  issue of  what constitutes  "protected arms"

            was addressed  by the Texas Supreme Court, as was the extent

            of state  and Federal Constitutional protections.  The Court

            first excluded  the  Second  Amendment  from  consideration,

            because, in  the Court's opinion, the Bill of Rights was not

            a limitation  on state  laws.119  Next, the Court considered

            the Texas constitutional provision:
              
              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.120
              

              While the  Court in  .i.State v.  Duke (1875);  upheld the

            precedent of  .i.English v.  State  (1872);,  that  the  law

            limiting the  carrying of weapons did not conflict with this

            constitutional provision,  they  did  take  issue  with  the

            English decision's definition of "arms":
              
              We... do  not adopt the opinion expressed that the word
              "arms," in  the Bill of Rights, refers only to the arms
              of a  militiaman or  soldier.   Similar clauses  in the
              Constitution  of   other  States  have  generally  been
              construed by  the courts  as using  the word  arms in a
              more comprehensive sense.121
            ____________________
              118 State v. Duke, 42 Tex. 455, 456, 459, 460 (1875).
              119 State v. Duke, 42 Tex. 455, 457 (1875).
              120 State v. Duke, 42 Tex. 455, 458 (1875).
              121 State v. Duke, 42 Tex. 455, 458 (1875).  But, as has
            been the case in many of these decisions, there are some
            disturbing errors in the cited cases: Bliss v. Commonwealth
            became Bliss v. Cane in the list of citations that followed.



                                        -289-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE


              
              The arms  which every  person is  secured the  right to
              keep and  bear (in the defense of himself or the State,
              subject to  legislative regulation),  must be such arms
              as are  commonly kept,  according to the customs of the
              people, and  are appropriate  for open and manly use in
              .i.self-defense;, as well as such as are proper for the
              defense of  the State.   If  this does  not include the
              double-barreled shot-gun, the huntsman's .i.rifle;, and
              such pistols  at least  as are  not  adapted  to  being
              carried concealed,  then the  only arms which the great
              mass of  the people  of the  State have,  are not under
              constitutional protection.   But  beyond question,  the
              dragoon or  holster .i.pistol; is part of the arms of a
              soldier in  that branch  of the  service.  (Coldwell v.
              The State,  3 Heiskell,  166,122  and  English  v.  The
              State, 35  Texas, 476).  Regarding, then, some kinds of
              pistols as  within the  meaning of  the word, we are of
              the opinion  that the  Act in  question is nothing more
              than a legitimate and highly proper regulation of their
              use.   We are  not called on to lay down general rules,
              prescribing  how  far  legislative  regulation  may  be
              extended, without  trespassing  on  the  constitutional
              rights of  the citizen.   The question for our decision
              is the  constitutionality of  the Act  under which this
              indictment was  proved.   It undertakes to regulate the
              place where, and circumstances under which a pistol may
              be carried;  and  in  doing  so,  it  appears  to  have
              respected the  right to  carry  a  pistol  openly  when
              needed for  .i.self-defense; or  in the public service,
              and the  right to  have one  at the  home or  place  of
              business.  We hold that the statute under consideration
              is  valid,   and  that  to  carry  a  .i.pistol;  under
              circumstances where  it is forbidden by the statute, is
              a violation of the criminal law of the State.123
              

            And so  the action  of the district judge in overturning the

            indictment was  upheld, but  the statute was again upheld as

            constitutional.124

              Immediately after  the Duke  decision, the  Texas  Supreme

            Court decided  a number of other appeals in conjunction with

            the same law.  Volney Young was indicted in Goliad County of
            ____________________
              122 Coldwell v. The State is incorrect; the location cited
            is Andrews v. State, 3 Heisk. (50 Tenn.) 165, 8 Am. Rep. 8
            (1871).
              123 State v. Duke, 42 Tex. 455, 458, 459 (1875).
              124 State v. Duke, 42 Tex. 455, 462 (1875).



                                        -290-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"


            illegally carrying a .i.handgun;.  At trial, Young attempted

            to prove  that three  weeks before  he was  seen carrying  a

            .i.pistol;:
              
              he was  assaulted by  Ambrose Hawkins,  an adult rough,
              and knocked  down three times with a bludgeon, and that
              upon this occasion said Ambrose Hawkins drew a knife on
              defendant, and  was prevented  from killing  him by the
              timely interference  of bystanders, who pulled him away
              from defendant, and when so taken away the said Hawkins
              exclaimed, 'If I didn't kill you this time, damn you, I
              will do it yet.'125
              

            Mr. Hawkins  had  given  a  rather  clear-cut  statement  of

            criminal intent,  matched with a demonstrated willingness to

            use deadly force, and so Young pressed criminal charges.
              
              [W]hilst said  case was  pending, and  before the trial
              thereof, defendant  was seen with the .i.pistol; at the
              time laid  in  the  indictment;  and  that  defendant's
              friends  and   relatives,  believing  his  life  to  be
              endangered, counseled  him to  carry arms in defense of
              his person  until the case against said Ambrose Hawkins
              was examined and disposed of;...126
              

            The use  of "defendant"  here seems  to refer both to Young,

            and his  attacker, Hawkins;  it is completely understandable

            that Young might fear for his safety.  But the circumstances

            leading up to Young's carrying of a .i.pistol; were excluded

            by the  trial court,  on the  grounds that  Hawkins was  not

            present when  Young was  seen with  a pistol,  and therefore

            "the danger was not immediate and pressing."127

              Not surprisingly,  Young was  convicted.   On appeal,  the

            Texas Supreme  Court agreed  that the  issue of  whether the

            ____________________
              125 Young v. State, 42 Tex. 462, 463 (1875).
              126 Young v. State, 42 Tex. 462, 463 (1875).
              127 Young v. State, 42 Tex. 462, 463, 464 (1875).



                                        -291-

            FOR THE DEFENSE OF THEMSELVES AND THE STATE



            danger was  "immediate  and  pressing,"  and  therefore,  an

            exemption from  the limitation  on carrying of arms, was not

            strictly a  question of  law, but  "a mixed question of fact

            and law,"  and ordered  a new  trial.  No challenge based on

            the constitutionality of the law appears to have been raised

            by Young, and none was cited by the Court.

              The next  case decided  at this  session was  .i.Smith  v.

            State (1875);.   Ransey  Smith of  Jasper County undertook a

            journey of several days to Newton County.  For that purpose,

            he took  "bedding and  a wallet or saddle-bags in his wagon,

            and went prepared to camp out."  Along the way, he:
              
              drew a  .i.pistol; from his baggage, and snapped two or
              three times  at some  partridges, and then returned the
              pistol to his baggage in the wagon...128
              

              His actions  would seem as innocent an action as one could

            imagine, and  since  the  law  contained  an  exemption  for

            "persons traveling  in the state," an innocent verdict would

            certainly  seem   an  obvious   result.     But  Smith   was

            convicted.129

              On appeal, the Texas Supreme Court held:
              
              Without undertaking  to define  the  rather  indefinite
              expression "persons  traveling in the State," we are of
              the  opinion  that  the  facts  stated  show  that  the
              defendant was  traveling within  the meaning and spirit
              of the  law.  Because the court erred in refusing a new
            ____________________
              128 Smith v. Texas, 42 Tex. 464, 465 (1875).
              129 Smith v. Texas, 42 Tex. 464, 465, 466 (1875).  An
            interesting question that cannot be answered from studying
            the decision is, "Who filed the complaint?"  It would appear
            that Smith was alone out there, except for the partridges,
            and they certainly didn't file the complaint.  Like a few
            other cases we will consider, it bears the earmarks of a
            test case.



                                        -292-

                            "NO NEGRO... SHALL BE ALLOWED TO CARRY FIRE-
                                                                   ARMS"

              trial,  the   judgment  is   reversed  and   the  cause
              remanded.130
              

              No challenge  to the  constitutionality of the law appears

            to have been made by Smith.

              The next case, .i.Williams v. State (1875);, originated in

            Milam County.  John Williams, a peace officer, was convicted

            of carrying  deadly weapons, at a time when he was off-duty.

            The Texas Court acknowledged:
              
              The whole  statute is  loosely framed,  and some of the
              provisions of  the first section would seem to indicate
              an intention  to limit the privilege of a peace officer
              in carrying  the weapon around, to cases when he was in
              actual service.   We  do not think, however, looking at
              the whole  law, and  especially to  the third  section,
              under which  the indictment is found, that it admits of
              such a construction.131
              

              The conviction  was reversed,  and sent  back to the trial

            court to be retried.132


            ____________________
              130 Smith v. Texas, 42 Tex. 464, 466 (1875).
              131 Williams v. State, 42 Tex. 466, 467 (1875).
              132 Williams v. State, 42 Tex. 466, 467 (1875).


-- 
Clayton E. Cramer {uunet,pyramid}!optilink!cramer  My opinions, all mine!
Alcohol prohibition didn't work; drug prohibition doesn't work; gun
prohibition won't work.