Roddy Stinson: State's new gun-toting law has surprise backer: ACLU

San Antonio Express-News ^ | February 5, 2006 | Roddy Stinson

[Tolerance Sucks Rocks]

The Texas chapter of the American Civil Liberties Union is unhappy about last Thursday's column concerning the state's new gun-toting law.

I know this because of an e-mail exchange I had with chapter spokesman Scott Henson, who chided:

—"Your interpretation of House Bill 823 relies on an analysis by a handful of prosecutors who opposed the law, but not the bill language itself."

—"It's true that some prosecutors are telling police to keep arresting people ... but they are raising a red herring. The law is really not unclear."

—"The lawmakers wanted drivers to be able to have a stowed gun driving to the bank or the grocery store."

And the real shocker:

—"I was closely involved in the legislative process that created the new law."

Somebody check the weather in Hades. Snowflakes must be falling on Beelzebub's head.

Whether this conservative turn is an ACLU aberration or a step in the right-wing direction won't be known for a while. But news of the organization's loose-gun-control stance will surely cause a few spluttering Sunday morning readers to lose their coffee.

Incidentally, if you missed Thursday's column ...

House Bill 823, which was passed by Texas legislators during the 2005 regular session, states that a person "is presumed to be traveling" and is legally permitted to carry a handgun in his car or truck if he is (1) in a private motor vehicle, (2) not engaged in criminal activity, (3) not prohibited by law from possessing a firearm, (4) not a member of a "criminal street gang" and (5) not carrying the handgun "in plain view."

The bill was vigorously opposed by prosecutors and law enforcement officials who believed it would increase the number of guns on the state's streets and highways and do more harm than good.

In the column, I quoted Harris County District Attorney Chuck Rosenthal, who said that in his jurisdiction, "It is still going to be against the law for (unlicensed) persons to carry handguns in autos." And I suggested that Texans should probably think twice before stashing pistols in their glove boxes or under their bucket seats.

That warning prompted the Henson-initiated e-mail exchange.

"The new statute says juries MUST presume a driver is traveling and therefore legally carrying a gun unless the state disproves one of the five elements," the ACLUer insisted. "State Rep. Terry Keel, who authored the bill, says: 'In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed weapon in a motor vehicle.' ...

"The story here isn't that the law was poorly written. The story here is that some prosecutors are so arrogant they think they don't have to follow the law."

Still, Henson cautioned: "I agree that drivers should be wary. Until this is settled (in the courts), they risk arrest."

Toward the end of the e-mail exchange, I wondered about the potential ramifications of the new law and shared my concern with Henson:

"As I understand the intent of the original 'traveling' law, it was written so bona fide travelers could have a weapon (for protection) as they drove down the open road.

"It seems to me that HB 823 turned that intent on its head, allowing an individual to be armed going to the corner grocery store."

Unfazed, Henson responded with his "driving to the bank or grocery store" remark.

And that's pretty much the up-to-date story of the new gun law and the controversy surrounding it.

Henson said the ACLU has filed open records requests with prosecutors across the state to determine which ones are telling officers to continue making arrests, and he believes if state courts don't "slap them down," the House and Senate will spank them during the next legislative session.

Meanwhile, the debate over the new law will continue.

Frankly, I find myself leaning a bit left of the ACLU position.

But maybe I'm missing something.

Lend me a contemplative hand here.

Use the feedback information below to call or e-mail me your take on Texas' new gun-toting law.

---

To contact Roddy Stinson, call (210) 250-3155 or e-mail rstinson@express-news.net. His column appears Sundays, Tuesdays and Thursdays.

[Tolerance Sucks Rocks]

And this, from Dave Kopel's Second Amendment newsletter:

Mailboxes, Etc., Refuses to Ship Firearms

Charlie Cutshaw
March 12, 2006

Hi All, As just about everyone knows, I'm a journalist specializing in test and evaluation of firearms. I usually return test guns to their manufacturers via FedEx, which is "gun friendly" and gives a substantial discount to National Shooting Sports Foundation members, which is reason enough to use FedEx as opposed to UPS, which is anti gun. That said, today I went down to the local Mail Boxes Etc to drop off a carbine I was returning to its manufacturer after test. I've been doing this for about two years, but the returns are usually handguns, so it isn't obvious what is in the box. This time, though, the clerk asked if there was a firearm in the box. I replied that there was and she replied that MBE would not accept firearms for shipment. I told her that if FedEx had no problem with firearms, why should MBE? At this point the manager came out and told me that it was MBE policy that they would not process firearms for shipment. I told him that I didn't understand this, given the "gun friendly" policy of FedEx. He said that was MBE policy, to which I responded that I would spread the MBE policy to every one I know in the hope that my many gun loving friends would vote with their feet and avoid using MBE. So here it is, friends. All of you for the most part are firearms aficionados. The remainder are as politically incorrect as I am. Since the right of firearms ownership is guaranteed in the US Constitution, how does MBE justify refusing to ship them? Firearms are just like any other commodity; they are NOT innately evil. Firearms are inanimate objects like ball bats or knives. The evil is in the heart of the person who uses them for evil purposes, not in the objects themselves. As far as I am concerned, there will be sleet storms in Hades before I ever again darken the door of a Mail Boxes Etc facility. I hope that you will join me in boycotting Mail Boxes Etc (MBE) and I hope that you will help me spread the word about this left wing extremist company that categorizes inanimate objects as being innately evil. Best regards, Charlie Cutshaw

[Tolerance Sucks Rocks]

PING!

Ice hockey is now being played in Hell! ACLU Texas is SUPPORTING the new traveling law!

[Paul C. Jesup]

I guess some people even in the ACLU see which way the wind is blowing.

[Buzwardo]

This is confusing as MBE was bought out be UPS and became the UPS store and, as mentioned UPS is not gun friendly. Was this some other mail box store or a UPS store?

[69ConvertibleFirebird]

(2) not engaged in criminal activity,

So, no speeding? No rolling stops?

[Abundy]

It actually makes sense...Texas already has a concealed carry law; the new law creates a presumption of innocence that must be applied to everyone carrying concealed in a vehicle until the State proves that the person is in violation of one of the five criteria.

The ACLU can claim that they do not support the invidividual right interpretation of the Second Amendment but still are actively engaged in protecting individual rights in Texas where a law they don't agree with exists.

Doesn't make sense you say...that's why they are called lawyers - the words "common sense" and "lawyer" don't butt heads in the same sentence very often.

I'm more concerned that prosecutors are instructing police officers to violate state law. That's a cime in most jurisdictions except Chicago (/sarcasm)...who will charge and prosecute the police officer that makes an arrest in violation of the statute and the prosecutor who instructed the officer to do so?

[mylife]

I can tell you that Dallas and Houston are in defiance of the new law

[Oztrich Boy]

If the ACLU supports it, I'm agin it!

[Pilsner]

Nobody is in "defiance" of the change in the law. The Texas Legislature could have created an exception to the unlawfully carrying a handgun law. That would have exempted the conduct(carrying a handgun in your car when you are sober, not a gang member, and not violating any other law except for minor traffic violations) from the unlawfully carrying law. With an exemption any peace officer wanting to properly arrest someone for unlawfully carring a handgun would have probable cause to believe, and show that to show the magistrate he took the arrested person to, that the arrested person's conduct fell outside the exemption to the unlawfully carrying law.

Instead the Texas Legislature, created a presumption that a person engaging in the conduct described above is travelling, and hence exempt from the unlawfully carrying law. A presumtion is an rule of evidencedoes not come into play until the case gets to court. A peace officer can arrest and a magistrate can detain someone without regard to the presumption.

If the Texas Legislature wants to creat an exemption thay will have a chance to do so next month when the Special Session for school finance starts.

I got an open records request abou this a few weeks ago from the ACLU. I was glad to see them take a break from their usual routine of trying to keep terrorists and child molesters on the street.

From the Texas penal code:

§ 2.05. Presumption

When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:

(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and

(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

[Parley Baer]

I have seen this in the past when a local aclu chapter or individual will support a gun rights bill. It has even happened here in Kalifornia fo all places.

[B4Ranch]

repeat for effect

I hope that you will join me in boycotting Mail Boxes Etc (MBE) and I hope that you will help me spread the word about this left wing extremist company that categorizes inanimate objects as being innately evil. Best regards, Charlie Cutshaw

[PAR35]

from Dave Kopel's Second Amendment newsletter

Is that an old article, or does the writer just not keep up with current events? MBE was bought by UPS; if he wants to ship FedEx, he needs to go to Kinkos. In fact, both chains have been renamed (FedEx Kinkos and UPS Stores). So why wouldn't he expect a UPS sub to carry out the policies of the parent company?

[uhhhitsjames]

I still don't trust the ACLU