Opinion
NO. PD-0545-23
02-21-2024
The STATE of Texas, Appellant v. Miguel VILLANUEVA, III, Appellee
George Steele, Mark Streiff, for Appellee.
ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW, FROM THE SECOND COURT OF APPEALS, TARRANT COUNTY
George Steele, Mark Streiff, for Appellee.
Petition for discretionary review refused. Newell, J. filed a concurring opinion in which Hervey and McClure, JJ., joined.
Judge Slaughter makes some forceful arguments that charging Appellee with unlawfully carrying a weapon in this case violates Appellee’s right to bear arms as protected by the Texas Constitution. Had Appellee made these arguments in the trial court, and maybe even if the court of appeals had addressed them in its opinion below, I could agree to grant discretionary review to consider them. However, Appellee did not argue to the trial court or the court of appeals that charging him with carrying a weapon in a compartment of his vehicle while allegedly committing the offense of driving while intoxicated was an unconstitutional application of the unlawfully carrying a weapon statute. And while he does make a constitutional challenge to the application of the statute for the first time in his petition for discretionary review, he bases this challenge on the Second Amendment of the federal Constitution and not Article I, Section 23 of the Texas Constitution.
Tex. Const. Art I, Sec. 23 ("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").
Notably, this Court has issued very few opinions interpreting Article I, Section 23, of the Texas Constitution. Since the Texas Constitution of 1876 was adopted, this Court has cited that provision in a mere 15 majority opinions. Thus, there is little binding authority from this Court regarding the scope of the right to keep and bear arms, and the extent to which the Legislature is authorized to regulate it.
Appellee’s argument before the trial court and court of appeals was that the information failed to allege a criminal offense because, under the Firearm Carry Act of 2021, the Legislature had removed DWI from the list of criminal activities for which a person can be charged under Sec. 46.02(a-1) when it amended the statute to add subsection (a-6). Compare Tex. Pen. Code Ann. Sec. 46.02(a-1)(2)(A) ("A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle … that is owned by the person or under the person’s control at any time in which … the person is: (A) engaged in criminal activity, other than a class C misdemeanor that is in violation of a law or ordinance regulating traffic … "), with Tex. Pen. Code Ann. Sec. 46.02(a-6)(2)(B)(i) ("A person commits an offense if the person: (1) carries a handgun while the person is intoxicated; and (2) is not … inside of or directly en route to a motor vehicle … that is owned by the person or under the person’s control …").
That subsection provides,
(a-6) A person commits an offense if the person.
(1) carries a handgun while the person is intoxicated, and
(2) is not.
(A) on the person’s own property or property under the person’s control or on private property with the consent of the owner of the property; or
(B) inside of or directly en route to a motor vehicle or watercraft:
(i) that is owned by the person or under the person’s control ; or
(ii) with the consent of the owner or operator of the vehicle or watercraft.
Tex Penal Code § 46.02(a-6) (emphasis added).
In his petition before this Court, Appellee contends that if subsection (a-1) can be harmonized with (a-6), as the court of appeals concluded, then this interpretation of Sec. 46.02 is unconstitutional as applied to him because it infringes upon his right to bear arms under the Second Amendment. See U.S. Const. amend. II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.").
Cf District of Columbia v. Heller, 554 U.S, 570, 584, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008) (citing multiple founding-era dictionaries to ascertain the original public meaning of the Second Amendment).
Granting discretionary review to address this novel question on our own motion would run afoul of our precedent holding that for a defendant to raise a Texas constitutional claim on appeal, he must raise it and brief it independently of any federal constitutional claims. It would also be inconsistent with our precedent noting that as-applied constitutional challenges are generally not cognizable on review of a pre-trial writ of habeas corpus. And it would be incompatible with our holding that as-applied constitutional challenges must be preserved in a trial court before an appellate court can review them. Most significantly, it would elevate consideration of the constitutionality of a single application of a statute to a systemic requirement on par with preservation issues themselves. Indeed, it would seem to authorize a reviewing court to raise and decide an as-applied constitutional challenge on behalf of one of the parties without being asked to do so. However well-intentioned our desire might be to reach the significant issues raised by the dissent, Appellee has not argued an as-applied challenge at any stage of these proceedings. We cannot make that argument for him in this case without abandoning much of our precedent.
See Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002) (analysis limited to the Fourth Amendment because appellant’s petition did not specify whether her argument was based on the United States Constitution or the Texas Constitution), Heitman v. State, 815 S.W.2d 681, 690 n 23 (Tex. Crim. App. 1991) (briefs asserting rights under Texas Constitution are inadequate if they do not provide argument and authority in support); Arnold v. State, 873 S.W 2d 27, 33 (Tex. Crim App. 1993) (the Court will not address state constitutional argument where claim that protection under the Texas Constitution exceeds or differs from that provided by the Federal Constitution was not raised), Pena v State, 285 S.W.3d 459, 464 (Tex Crim. App. 2009) (defendant failed to preserve error for review where his trial objection was based on federal due process, he did not argue that state constitutional right provided greater protection than federal right, and trial court understood that defendant’s complaint was only as to alleged denial of federal due process).
See also Stephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629, 667 (1989) ("To ‘bear’ arms means to carry or move while holding or wearing readily accessible arms on or about one's person, To ‘wear’ means more narrowly to have attached to one's body or part of it or to one's clothing. Thus, the bearing of arms would include both wearing them as well as carrying them in other manners, such as in the hand, in saddle bags, or on a vehicle seat. Thus, the convention did not give the legislature power to regulate the 'bearing' of arms, but Instead chose a different word so as to allow regulation only of the ‘wearing’ of arms. By allowing regulation of how arms are worn, citizens could be required to carry them openly and not concealed.") (citing Noah Webster, An American Dictionary of the English Language 76 (1828)).
See Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (as-applied challenges are not cognizable pre-trial unless "the rights underlying those claims would be effectively undermined if not vindicated before trial"); Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex. Crim. App. 2017) (pretrial habeas is generally unavailable when resolution of claim may be aided by development of record at trial, unless constitutional right at issue includes right to avoid trial); London v. State, 490 S.W.3d 503, 507-08 (Tex. Crim. App. 2016) (as-applied challenges generally require fully developed record from a trial).
That provision read, in relevant part,
[A]ny person carrying on or about his person, saddle, or in his saddle bags, any pistol, dirk, dagger, slung-shot [sic], swordcane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purposes of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the State, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor…. Provided, That this section shall not be so construed as to prohibit any person from keeping or having arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or revenue officers, and other civil officers, from keeping or having arms, while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage….
1871 Tax. Gen Laws § 1.
See Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (as-applied challenges must be raised in the trial court to preserve error); Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the "well-established requirement that appellant must preserve an ‘as applied’ constitutional challenge by raising it at trial."); Tex. R. App. P. 33.1.
See also Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex A&M L. Rev. 95, 96 (2016) ("[T]he Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats—who had fought relentlessly against the Fourteenth Amendment after losing the Civil War—who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.").
Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016) (preservation of error is a systemic requirement that must be reviewed by an appellate court even if not raised by the parties); but see Reynolds 423 S.W.3d at 383; Flores, 245 S.W.3d at 437 n.14.
Of course, none of the foregoing is intended to suggest that the Legislature is powerless to regulate the "bearing" of firearms for unlawful purposes Just as the power of the Legislature to regulate the wearing of arms is limited, the right to keep and bear arms does not encompass the possession of arms for unlawful purposes, such as to further one’s criminal activity. See Tex Const art I, § 23. Thus, pursuant to its police power, the Legislature can regulate firearm-related conduct that is outside the scope of the right to keep and bear arms for lawful self-defense purposes, even when such a regulation goes beyond the "wearing" of arms and touches upon the "bearing" of arms in the general sense of possessing arms. Cf Ex parte Townsend, 64 Tex.Crim 350, 144 S.W. 628, 631 (1911); Williams v State, 146 Tex.Crim. 430, 176 S.W.2d 177 (1943). For example, the unprovoked use of weapons against another is not protected by the Texas Constitution. Thus, the Legislature might prohibit a person from carrying a firearm "on or about" his person during the commission of a forceful robbery because said firearm was not being borne for lawful purposes, but for unlawful ones. However, such a firearm regulation of unprotected conduct is not at issue in this case.
However, the Court’s refusal to grant discretionary review in this case should not be mistaken for a rejection of the merits of Appellee’s claims or Judge Slaughter’s arguments. And the effect of this appeal will result in the indictment being reinstated. In the trial court, Appellee is free to incorporate the arguments in Judge Slaughter’s dissent into another motion to quash once the proceedings below resume. Should the issue reach us in that posture, the Court would be able to give it the thoughtful consideration it undoubtedly deserves.
Sheffield v. State, 650 S.W.2d 813, 814 (Tex Crim. App. 1983) ("The Bench and Bar of the State should not assume that the summary refusal of a petition for discretionary review lends any additional authority to the opinion of the Court of Appeals.") (citing Campbell v. State, 647 S.W.2d 660 (Tex. Cr. App. 1983)).
The statute prohibited "[a] person who has been convicted of a felony involving an act of violence or threatened violence to a person or property" from "possess[ing] a firearm away from the premises where he lives." Shepperd v State, 586 S.W.2d 500, 501 n.1 (Tex. Crim. App. [panel op.] 1979).
With these thoughts, I join the Court’s order refusing discretionary review.
DISSENTING OPINION
Slaughter, J., filed a dissenting opinion.
Since the adoption of the Texas Constitution in 1876, the right of Texas’ citizens to keep and bear arms to lawfully defend themselves has been protected through the following provision:
Every citizen shall have the right to keep and bear arms in the lawful defense 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.
Tex Const art I, § 23. As this provision makes clear, while the individual right to keep and bear arms is broad, the Legislature is authorized to infringe upon that right in some limited circumstances. But how far does that authority extend? In the instant case, Appellee was charged with unlawfully carrying a weapon for storing a holstered handgun in a compartment of his vehicle while allegedly committing the offense of driving while intoxicated. See Tex. Penal Code § 46.02(a-1)(2)(A) (providing that a person commits an offense if he "intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle … that is owned by the person or under the person’s control at any time in which the person is engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating[.]"). Though not raised by Appellee in his petition for discretionary review, I would grant review on our own motion to consider whether this penal code provision, as applied here, results in an impermissible infringement upon Appellee’s right to keep and bear arms under the Texas Constitution. I would ultimately hold that it does—both because it prohibits the mere possession of a handgun in a compartment of a vehicle rather than the "wearing" of arms, and because it does not have any direct nexus to the prevention of crime as applied to a person committing DWI. Thus, it exceeds the scope of the Legislature’s authority to "regulate the wearing of arms, with a view to prevent crime." See Tex. Const art. I, § 23. Because the Court does not grant review of this weighty issue of state constitutional law that affects not only Appellee but also numerous similarly situated individuals, I respectfully dissent.1a
I. Factual Background
On June 23, 2022, Officer Wilkinson of the Bedford Police Department was out on patrol when he observed a vehicle stopped on the left-hand side of the access road. After pulling up behind the vehicle, he found Miguel Villanueva III, Appellee, standing outside the vehicle with his feet planted on the ground, leaning into the vehicle through the open driver’s side door. Appellee’s head was resting in between the driver’s seat and the center console, and it appeared that he was asleep or had passed out. Concerned that Appellee might need medical attention, Officer Wilkinson initiated a welfare check.
During the ensuing welfare check, Officer Wilkinson found a holstered handgun in the map pocket of the driver’s side door. After securing the firearm, Officer Wilkinson woke Appellee. Thereafter, Officer Wilkinson observed that Appellee was exhibiting multiple signs of intoxication. Appellee refused to perform standardized field sobriety testing, and Officer Wilkinson arrested him for misdemeanor driving while intoxicated (DWI).
In addition to the misdemeanor DWI, the State also charged Appellee with a Class A misdemeanor for unlawfully carrying a handgun during the commission of a crime, pursuant to Penal Code Section 46.02(a-l)(2)(A). Tracking the statutory elements, the State’s information alleged, in relevant part:
THAT MIGUEL VILLANUEVA III … DID INTENTIONALLY, KNOWINGLY, OR RECKLESSLY CARRY ON OR ABOUT HIS OR HER PERSON A HANDGUN AND THE DEFENDANT WAS IN A MOTOR VEHICLE … UNDER THE DEFENDANT’S CONTROL AND WAS ENGAGED IN CRIMINAL ACTIVI
TY, OTHER THAN A CLASS C MISDEMEANOR THAT IS A VIOLATION OF A LAW OR ORDINANCE REGULATING TRAFFIC OR BOATING.
Appellee moved to quash the information charging him with unlawfully carrying a handgun. In his motion, Appellee argued that the information failed to allege a valid criminal offense because Penal Code Section 46.02(a-1)(2)(A) had been impliedly repealed, as applied to his conduct. Specifically, Appellee observed that in 2021, the Legislature amended Penal Code Section 46.02 by adding subsection (a-6), which expressly allows an intoxicated person to possess a handgun while inside of or en route to his vehicle. See Tex Penal Code § 46.02(a-6).2a Appellee asserted that subsection (a-6) was the provision that more specifically applied to his circumstances, such that it barred his prosecution under the more general provision in subsection (a-1) that prohibits handgun possession by a person in a vehicle while engaged in "criminal activity," The trial court agreed and quashed the information. However, the State appealed, and the Second Court of Appeals reversed the trial court’s ruling. The court reasoned that the two relevant provisions in Penal Code Section 46.02 could be harmonized because subsection (a-6) did not expressly authorize a person to operate his vehicle while intoxicated, which remains criminal activity for purposes of subsection (a-1). State v. Villanueva, 672 S.W.3d 189, 194 (Tex. App.—Fort Worth 2023) (concluding that Penal Code Section 46.02(a-6) "does not address the situation where the accused is operating a motor vehicle as opposed to merely being inside of the vehicle;" thus, "if [an] intoxicated person, with the requisite mens rea for unlawful possession of the firearm, operates that vehicle while in possession of a handgun," he may properly be prosecuted under subsection (a-1)).
In the instant petition for discretionary review, Appellee re-asserts the arguments made in the courts below. In making those arguments, he also contends that, if the court of appeals’ interpretation of Penal Code Section 46.02 is correct, then the statute is unconstitutional as applied because it infringes upon his right to bear arms under the Second Amendment of the United States Constitution. See Appellee’s Petition for Discretionary Review, at 6-7 (citing N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), and quoting that decision for the proposition that, if a law or regulation touches upon Second Amendment rights, then " ‘the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation’ "). However, Appellee’s petition for discretionary review does not raise any similar claim under Article I, Section 23, of the Texas Constitution.
II. Discussion
At the outset, I agree with the court of appeals that the precise argument raised by Appellee lacks merit. Under a strict interpretation of the pertinent statutory provisions in Penal Code Section 46.02(a-1) and (a-6), those provisions can be logically harmonized as applied to these circumstances. Thus, there is no justification for this Court to intervene solely on the basis of a pure statutory claim that Appellee was exempt from prosecution under the more specific terms in subsection (a-6).
And yet, in the course of making his statutory argument, Appellee raises a compelling question about whether Penal Code Section 46.02(a-l)(2)(A), as applied, constitutes an infringement on his right to keep and bear arms. Although he raises that argument under the Second Amendment to the United States Constitution, Appellee’s argument is even more persuasive under Article I, Section 23, of the Texas Constitution, which more narrowly limits the Legislature’s authority to regulate the lawful possession of firearms for self-defense purposes. See Tex. Const. art. I, § 23.
For two independent reasons explained more fully below, I would hold that Penal Code Section 46.02(a-1)(2)(A), as applied here, violates the Texas Constitution. First, it prohibits the possession of a handgun "about" a person on his private property (specifically, in a compartment of his personal vehicle), rather than the "wearing of arms" on his person. Second, it does not have any logical nexus to the prevention of crime as applied to a person committing DWI. Thus, it exceeds the scope of the Legislature’s authority to "regulate the wearing of arms, with a view to prevent crime." See Tex Const art I, § 23.
A. The original public meaning of the phrase authorizing the Legislature to regulate the "wearing of arms" was limited to regulations on the carrying of arms "on" the person, not mere possession "about" a person.
As noted above, the first clause in Article I, Section 23, broadly protects the individual’s right to "keep and bear arms in the lawful defense of himself or the State." Id. The second clause, however, restricts the scope of the Legislature’s authority to infringe upon that right and permits regulations only on the "wearing" of arms. Id. As the analysis below shows, the framers’ choice of "wearing" in the second clause was significant and signaled an intent to effectively eliminate the Legislature’s ability to regulate the mere possession of arms "about" a person (e.g., those stored in his home or vehicle, on his property, or amongst his personal possessions), so long as the firearms were possessed for lawful self-defense purposes. Instead, the clause permitting regulations on the "wearing of arms" was limited to regulations on the manner in which lawful arms may be carried upon the person’s body (i.e., whether they are to be worn openly or concealed, holstered, etc.).
1. The 1876 Definitions of "Bearing" and "Wearing"
In construing the Texas Constitution, we give effect to the original public meaning of the plain text. See Keller v. State, 87 S.W. 669, 675-76 (Tex. Crim. App. 1905) ("Where words, terms, or language of the Constitution are plain and definite, there is no room for construction, for such language is self-construing, and to be taken in its ordinary meaning and acceptance at the time of the adoption of the Constitution."). Dictionary definitions from around the time the Constitution of 1876 was adopted demonstrate that the phrases "to keep and bear" and "to wear" had distinct meanings in this context.
The most common meanings of the word "keep" were "to cause to remain in a given position, as within one’s grasp or control," and "to have in custody; to take care of." Noah Webster et al., A Dictionary of the English Language 407 (William A. Wheeler ed., 1887). The most common meanings of the word "bear" were "to support or sustain;" "to support and remove; to convey;" and "to possess and use, as power." Id. at 58. Thus, the voters who adopted the Texas Constitution of 1876 would have understood the phrase recognizing the right to "keep and bear arms" for lawful self-defense purposes to broadly encompass both the carrying of weapons "on" the person’s body, such as carrying arms in an open hand or holstered on a belt, as well as possession "about" the person’s body, such as transporting arms in a lock box on a stagecoach.3a
In contrast, the phrase "to wear" was far narrower and meant "to carry or bear upon the person, as an article of clothing, decoration, warfare, or the like; to have on." Id. at 813 (emphasis added). Thus, in the previous examples, the person who carried weapons in an open hand, or holstered on a belt, would be said to have "worn" arms, in the sense of having carried them "on" his person. But the same could not be said of the person who carried weapons in a lock box on a stagecoach because, though he possessed arms "about" his person, the arms were not "worn" on his person. This understanding of the contrasting meanings of these phrases was also reflected in the caselaw leading up to that time period. See, e.g., Bliss v. Commonwealth, 12 Ky. 90, 91 (1822) ("… for though the citizens are forbid wearing weapons concealed in the manner descrbed [sic] in the act, they may nevertheless bear arms in any other admissible form."); Nunn v. State, 1 Ga. 243, 243 (1846) ("A law which merely inhibits the wearing of certain weapons in a concealed manner is valid.") (emphasis in original); State v. Reid, 1 Ala. 612, 616-18 (1840) (associating the phrase "wearing of certain weapons" with the manner in which the weapons were carried upon the wearer’s person).4a
2. Historical Analysis of the Right to Keep and Bear Arms in Texas
A historical analysis of the Texas Constitution also supports this narrow view of the Legislature’s power to regulate the "wearing of arms," as compared to the expansive personal right to "keep and bear arms in the lawful defense of [oneself] or the State." Tex. Const. art. I, § 23.
Prior to the adoption of the 1876 Constitution, the Texas Constitution of 1845 provided: "Every citizen shall have the right to keep and bear arms, in the lawful defence of himself or the State." Tex. Const. of 1845, art I, § 13. The plain text of the provision recognized an individual right to keep and bear arms for lawful self-defense purposes, but it did not grant the Legisla- ture the express power to regulate that right. See id.; see also Stephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev 629, 645 (1989) ("[T]he constitutional convention of 1845 established that in Texas, the right to keep and bear arms was considered to be absolute. Bowie knives and Colt pistols could be worn, openly or concealed, without legislative infringement.").
During the civil war period, the right to bear arms in Texas remained "absolute." Id. at 649. But in the chaos of Reconstruction that followed the war, Texas enacted its first regulations on the possession of firearms. Id. At the 1868 Constitutional Convention, the delegates adopted the following provision: "Every person shall have the right to keep and bear arms, in the lawful defence of himself or the State, under such regulations as the legislature may prescribe." Tex. Const. of 1869, art. I, § 13 (emphasis added). In contrast to the 1845 Constitution, which contained no language permitting regulation on the citizens’ right to keep and bear arms, the 1869 Constitution gave the Legislature much broader authority to regulate that right. See Halbrook, supra, at 657 (discussing the 1869 Constitution and stating, "The granting of legislative power to regulate the bearing of arms meant that the right was no longer ‘absolute,’ but still its exercise could not be prohibited. The intent was to authorize the legislature to ban carrying concealed weapons, but not to ban the bearing of arms in any fashion.").
The Reconstruction Era was marked by political strife and instability, as well as extreme levels of violent crime. See id.; see also Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. A&M L. Rev. 95, 97–99 (2016). During this period, the Texas Legislature enacted a strict regulation on carrying weapons "on or about" a person in any public place.5a The act was controversial and was viewed as an attempt by the unionists to consolidate their power over ex-confederates. Halbrook, supra, at 658.6a The Texas Supreme Court (then controlled by appointed judges) subsequently upheld the act over a constitutional challenge under the federal and state constitutions. See English v. State, 35 Tex. 473, 477 (1871) (holding, inter alia, that the regulation was constitutional because it made exceptions for "the place, the time and the manner in which certain deadly weapons may be carried as a means of self-defense," and that such exceptions "fully cover all the wants of society").
In 1875, after the end of Reconstruction, delegates assembled to form a new state constitution. The document they drafted was aimed at preventing the perceived widespread abuses of power that had occurred during the preceding decade. Halbrook, supra, at 665 (noting that the 1876 Constitution "greatly reduced the powers of the legislature and has been described as an antigovernment instrument"). The language adopted in Article I, Section 23, which remains in force today, "drastically curtailed" the Legislature’s authority to enact regulations on the possession of firearms. Id. at 666. In comparing the language of the 1876 Constitution with its 1869 predecessor, the new language "asserted the right [to bear arms] in an absolute form without making it contingent on legislative regulation, subject only to the power of the legislature to regulate how arms are worn." Id. at 667. Further, "the new guarantee deleted any legislative power to regulate the keeping of arms. The possession, ownership, transportation, or other forms of ‘keeping’ arms, particularly on one’s premises or while travelling, were intended to be beyond the parameters of legislative control." Id. Rather, the provision was limited to allowing regulations on "how arms were to be worn, i.e., openly or concealed[.]" Id. The provision "was intended to repeal the broad legislative power in the 1869 Constitution and in particular the unpopular 1871 act which prohibited the bearing of arms anywhere but on one’s premises." Id.
3. Penal Code Section 46.02(a-1)(2)(A) is Unconstitutional
Returning to the issue at hand, it is apparent that Penal Code Section 46.02(a-1)(2)(A) constitutes a regulation on the "bearing" of arms, thereby exceeding the scope of the Legislature’s power to regulate the "wearing" of arms as that term was originally understood in 1876.
Section 46.02(a-1)(2)(A) provides, in relevant part:
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:
..
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating.
Tex. Penal Code § 46.02(a-1)(2)(A) (emphasis added). The plain text of this statute is constitutionally problematic. Specifically, it authorizes the State to obtain a conviction against a person who "bears" a handgun "about" his person without "wearing" it "on" his person. See id. But, as shown by the analysis above, the framers of the 1876 Constitution (and the public who adopted it), intentionally eliminated the Legislature’s authority to regulate the "bearing" of arms, and instead restricted that authority to regulations on the "wearing" of arms—that is, the manner in which arms are worn on one’s person (presumably, in public places). See Halbrook, supra, at 667. Moreover, the term "wearing" plainly excluded activities such as transporting lawfully possessed weapons in one’s private vehicle. Id. Thus, pursuant to its power to regulate the wearing of arms, the Legislature might prescribe whether arms are to be worn openly or concealed; bolstered or unholstered; and on shoulders, on belts, on ankles, or in pockets. However, that power does not extend to regulating the carrying of arms "about" the person in, for example, a lock box, compartment, or purse kept in a vehicle for lawful purposes.
The circumstances of this case highlight the statute’s excessive scope. The State charged Appellee for possessing a bolstered handgun in a compartment of his vehicle while he was allegedly driving while intoxicated. Nothing about Appellee’s conduct suggests he possessed the handgun for any unlawful purpose. Thus, even assuming, arguendo, that Appellee was in fact driving while intoxicated, that fact by itself cannot erase his constitutional right to keep and bear arms for lawful self-defense purposes. So long as Appellee’s conduct fell within the scope of his right to "keep and bear arms in the lawful defense of himself," the Legislature can infringe upon that right only by regulating the "wearing" of arms. See Tex Const art I, § 23. But, Appellee did not "wear" any arms here, instead merely "bearing" the handgun in the general sense of carrying, conveying, transporting, sustaining, or moving the handgun in a vehicle. As the analysis above demonstrates, that type of conduct is beyond the reach of the Legislature’s authority to regulate.7a As such, this regulation does not fall within the scope of the Legislature’s power to "regulate the wearing of arms."
In sum, the original public meaning of Article I, Section 23, could be restated in modern terms as protecting a broad, individual right to keep and bear arms for lawful purposes, subject to such regulations as the Legislature might prescribe on the mode, method, or manner in which those arms are to be borne "on" the person. Because Penal Code Section 46.02(a-1)(2)(A) exceeds the scope of the Legislature’s authority in this regard, it is unconstitutional.
B. The Limiting Principle of Enacting "With a View to Prevent Crime"
Even assuming arguendo that Penal Code Section 46.02(a-1)(2)(A) does not exceed the scope of the Legislature’s power to regulate the "wearing of arms," it nonetheless operates unconstitutionally in this case for a second, independent reason—it does not serve any legitimate crime-prevention purpose. See Tex. Const. art. I, § 23 (providing that "Every citizen shall have the right to keep and bear arms in the lawful defense 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.") (emphasis added). The framers’ addition of the "with a view to prevent crime" clause imposed a secondary limitation on the already-narrow scope of the Legislature’s authority to reg- ulate the wearing of arms. See id.; see also Halbrook, supra, at 667-68 (examining the "with a view to prevent crime" clause and stating, "The wearing of arms could not be regulated for purposes other than to prevent crime. Wearing arms concealed for necessary self-defense, particularly in emergencies, or while hunting during inclement weather could be beyond legislative regulation because the conduct is manifestly not criminal. Moreover, a statute regulating the wearing of arms which demonstrably does not prevent crime could be beyond the legislative power to enact.") (emphasis added).
Given this limitation, the Legislature’s regulations on the wearing of arms must have, at the very least, a direct nexus to the prevention of crime. However, in this case, the State relied on Section 46.02(a-1)(2)(A) to charge Appellee for possessing a firearm because he was driving while intoxicated. There is no well-defined, correlative relationship between prohibiting drunk drivers from possessing firearms and the prevention of crime with those weapons. Thus, Section 46.02(a-1)(2)(A) is unconstitutional as applied.
1. Regulations on Classes of Persons
In interpreting the "with a view to prevent crime" clause, this Court has held that the Legislature is authorized to prohibit certain classes of persons from possessing firearms because of their predisposition for committing crimes with those weapons. See, e.g., Shepperd v. State, 586 S.W.2d 500, 503-04 (Tex. Crim. App. [panel op.] 1979). In Shepperd, the defendant was arrested for possessing a firearm after having been convicted of a violent, felonious robbery. Id. at 501. The State charged him with being a violent felon in the unlawful possession of a firearm, and he was convicted. Id. On appeal, he argued that the penal statute under which he was convicted violated Article I, Section 23, of the Texas Constitution.8a Id. at 502. In affirming the conviction, this Court observed that "[f]elons who have committed crimes of violence or threatened violence are more likely … to commit dangerous crimes" than other classes of people in the population. Id. The Court went on to note that "it is not without support in reason to conclude that a person whose crime was a violent felony is an undesirable person to possess firearms." Id. at 503. As a result of this well-defined, correlative relationship between the regulation and the prevention of crime, this Court effectively reasoned that it was rational (and, therefore, permissible) for the Legislature to prohibit violent felons from possessing firearms beyond their own homes. See id. at 504.
2. Section 46.02(a-1)(2)(A), as applied, bears no rational nexus to the prevention of crime.
While this Court has upheld firearm regulations upon a finding that the Legislature rationally determined there was a nexus between the regulation and the prevention of crime, even that minimal standard cannot be satisfied here. The Legislature cannot impose a firearm regulation when the subject of the regulation bears no logical relationship, or bears only a tenuous relationship, to the prevention of crime.
In this case, nothing suggests that drunk drivers are predisposed to committing violent crime involving weapons in the same manner that violent felons are. In addition, nothing suggests that Appellee intended to use the firearm while driving while intoxicated, and the firearm played no part in Appellee’s decision to drive while intoxicated. In other words, the presence of the firearm was wholly unrelated to the commission of the crime—it was just there. Under these circumstances, Section 46.02(a-1)(2)(A) has, at best, a tenuous, or incidental, relationship to the prevention of crime, and is, therefore, unconstitutional as applied in this case.
It might be argued that drunk drivers are more likely to be involved in road rage incidents involving the use of weapons and that prohibiting drunk drivers from possessing firearms is, therefore, related to, and correlated with, the prevention of crime. However, such reasoning conflicts with the Legislature’s apparent recognition, in Penal Code Section 46.02(a-6), that intoxicated individuals may still lawfully possess firearms in a private vehicle. See Tex. Penal Code § 46.02(a-6). It would defy logic to hold that intoxicated individuals who commit DWI are inherently more likely to engage in gun violence as compared to intoxicated individuals who are not driving but are still in a vehicle. Moreover, if a drunk driver were to brandish a firearm, discharge a firearm, or allow the presence of a firearm to in some way influence his decision to engage in criminal conduct, then I would agree that the statute could be constitutionally applied to those circumstances. But where the "criminal activity" alleged under Penal Code Section 46.02(a-1)(2)(A) is inherently non-violent and there is no suggestion that a firearm could play any role in that criminal activity, as is the case with DWI, I would hold that the statute lacks the crime-prevention purpose required by the Texas Constitution. Thus, on this alternative basis, I would find an as-applied constitutional violation under these circumstances.
Consider, for example, the cocaine dealer who carries a firearm to protect himself during drug deals. It would be reasonable to believe that the presence of the firearm contributed to the commission of the drug deal. Indeed, but-for the firearm, the drug dealer would be less likely to put himself in such a dangerous situation. In this scenario, the presence of the firearm bears a well defined, correlative relationship with the commission of separate criminal conduct. Therefore, the Legislature would be within Its right to regu late the wearing of arms in such situations.
III. Conclusion
As shown by the foregoing analysis, Penal Code Section 46.02(a-1)(2)(A) cannot be applied to Appellee’s circumstances in a manner consistent with the dictates of Article I, Section 23, of the Texas Constitution. First, the statute regulates the possession of a firearm "about" the person, thereby exceeding the original public meaning of the Legislature’s express power to "regulate the wearing of arms," and infringing upon the right of the People to "keep and bear arms." Second, even assuming that the statute regulates the "wearing" of arms rather than the "bearing" of arms, it is nevertheless unconstitutional as applied in this case because the manner in which it was applied bears no well-defined, correlative relationship to the prevention of crime. Given the importance of these constitutional issues, on which there is scant authority, I would grant review of these issues on the Court’s own motion to provide much-needed guidance in this area of the law. Because the Court declines to do so, and refuses review, I respectfully dissent.