Can I carry or take my gun into a National Park?
Short Answer: Yes in Texas, but you cannot take it into Federal buildings such as ranger stations, museums, or other buildings on park property. Please read further for details.
National Parks and National Wildlife Refuges:
As many of you may know, the United States Congress passed a law on May 22, 2009, which actually expanded the rights of gun owners and concealed handgun license holders. The law allows the carrying of loaded firearms on federal lands which are managed by the National Parks System or the National Wildlife Refuge System, if carried in compliance with state law. The history of how this law came about is somewhat interesting. The regulation prohibiting the possession of firearms in National Parks and National Wildlife Refuges was promulgated by the Department of the Interior in 1983 and is listed at 36 C.F.R. 2.4. The Bush Administration decided to amend this regulation on December 10 2008, just before leaving office, by adding subsection (h) which states:
Notwithstanding any other provisions in this Chapter,
a person may possess, carry, and transport concealed,
loaded, and operable firearms within a national park
area in accordance with the laws of the state in which
the national park area, or that portion thereof, is
located, except as otherwise prohibited by applicable
Federal law.
This amendment went into effect 30 days later on January 9, 2009. The Department of Interior's authority to make said amendment was immediately challenged by the anti-Second Amendment forces at the Brady Campaign To Prevent Gun Violence. The Brady group asserted that the regulation was unlawfully adopted because (are you ready for this) the Department of Interior had not conducted a proper environmental assessment or environmental impact statement. On March 19, 2009, a sympathetic Federal District Judge issued an injunction prohibiting the implementation or enforcement of subsection (h).
In an act of uncharacteristically swift action in response to the court's ruling barring the carrying of guns, the United States Congress approved a rider to the Credit Card Accountability and Responsibility and Disclosure Act of 2009 entitled "Protecting Americans From Violent Crime". This law had the effect of not only restoring subsection (h), thus allowing for the carrying of guns in national parks, but also prohibiting the Department of the Interior from altering the law in the future with another regulation. The law was passed on May 22, 2009 and went into effect on February 22, 2010. After this date, individuals may now carry assembled and functional firearms in any unit of the National Park System or the National Wildlife Refuge System. This law has now opened almost 175 million acres of Federal land to people carrying concealed weapons if they are in compliance with state law. Of course, all Federal buildings such as ranger stations and museums are still off limits to all firearms including concealed weapons.
Army Corps of Engineers:
Mr. Rainey also had a very good question about land owned or administered by the Army Corps of Engineers ("USACE"). This includes the land surrounding most dams, lakes and other waterways. Unfortunately, the previously discussed law only involves land controlled by the Department of the Interior. Other agencies still have the ability to set their own regulations regarding firearms. In fact, the USACE issued a memo dated February 22, 2010, which stated quite clearly that the new law did not apply to them and that the current regulations regarding firearms on land controlled by the USACE are found in 36 C.F.R. 327. This means that on USACE land, firearms can only be used for hunting where allowed, at authorized shooting ranges, and where the District Commander has given written authorization, and all guns must be unloaded during transport. However, under no circumstances are concealed weapons permitted or concealed handgun licenses recognized. District Commanders do not have authority to alter the rules to recognize CHLs in their districts. So be sure to check with the appropriate USACE district if you plan to do any hunting or target shooting on its land.
National Forests:
On a final note, a person can carry in a National Forest if permitted by state law, but there are some restrictions on use of a firearm in a National Forest, such as you can't shoot across a road or body of water, you can't shoot within 150 yards of a building or campsite and you can't shoot in a cave. You can find a list of all the dos and don'ts in a National Forest in 36 C.F.R. 261.10.
I hope this helps you enjoy all of our public lands safely and securely. Happy New Year!
Sincerely,
Edwin Walker
Attorney\Vice-President
Walker, Rice and Wisdom, P.C.
Printed
By Permission
Texas Law Shield Newsletter
WHEN IS YOUR GUN NOT A FIREARM?
Collecting firearms and performing in historical or educational productions have become very popular in the last few decades. Many people have asked us about the potential criminal liability for possessing and carrying the weapons used in such activities. The current criminal law regarding the possession of weapons (of all kinds including firearms) is found in Chapter 46 of the Texas Penal Code. This chapter lays out what weapons are illegal to possess, illegal to carry, where it is illegal to carry them and where a CHL holder can and cannot carry a handgun.
The first section of Chapter 46 is very important; it includes the definitions of each type of weapon including: what is a "club", what is a "knife" and most importantly what is a "firearm". A "firearm" is defined as any devise which is designed, made or adapted to expel a projectile through a barrel by using an exploding or burning substance. The statute then specifically excludes from this definition an antique or curio firearm which was manufactured before 1899 or a replica of an antique or curio firearm made before 1899, which does not use rim fire or center fire ammo. The antique exception has been the law since 1973 when the criminal law was rewritten and codified as the current Texas Penal Code. The Texas Legislature has chosen to use the language "manufactured before 1899". However, the Federal legal definition of antique firearm states that it must be a weapon "manufactured in or before 1898". Oh, the wonders of government bureaucracy, which makes the law clearer by saying the same thing two different ways.
Prior to 1999, the law only exempted original, authentic firearms manufactured before 1899. However, in 1999 the Texas Legislature took notice of the fact that historical re-enactments had become extremely popular and added the exemption for replicas of pre-1899 antique or curio firearms. In an effort to conform to Federal Law, the replicas could not use rim fire or center fire ammunition. The statute was specifically tailored to cover historic muzzle loading, black powder, match lock and flint lock type weapons. Interestingly, this same amendment also allowed Bowie knifes and swords to be carried for purposes of historical demonstrations and ceremonies. If a replica is of a pre-1899 weapon that does use rim fire or center fire ammo, such as a replica Colt Single Action Army Model 1873, then it is treated by the law like any other handgun including those relating to carrying by a CHL holder. If your black powder gun is a newly manufactured model such as a Remington Model 700 Muzzleloader, then it will be regulated by all applicable laws relating to the carrying and possession of a firearm because it is not a replica of a pre-1899 gun.
It is very important to remember that the antique and curio language is contained in the statute as an exception to the definition. This means that the person accused of unlawfully carrying a weapon bears the burden to present evidence in court to prove that the gun they were arrested for carrying was an antique or curio manufactured before 1899 or a qualified replica of such a weapon.
As always, we at Walker, Rice & Wisdom, P.C., are at our client/members' service to discuss all firearm related questions and issues.
T. Edwin Walker
Vice-President/Attorney
Walker, Rice & Wisdom, P.C.
© 2011 Texas Association of Concealewd Carry Instructors. All rights reserved.
ARREST: ALWAYS HAVE A PLAN
Dear clients, members and friends.
If you carry a gun, you should have a plan in case you are arrested! I know this sounds alarmist and extreme and many of you may be thinking, "why do I need to do that, I never break the law", "I have never been in trouble with the police" or "I don't need a plan to be arrested; that may be fine for criminals, but it will never happen to me!"
Well, I truly hope this unfortunate event never happens to you, but the fact is, no matter who you are, it can happen to anyone. Once you make the decision to possess and carry a concealed handgun, you are also making the decision that you may have to use it. The collective experience of the lawyers in this program from observing the justice system in action and from the scores of police officers we represent is: if you use your gun, there is a very, very high degree of probability that you will be the person arrested. You may even be arrested by an officer when you have done nothing wrong in the eyes of the law. However, the system will leave it up to the detectives, district attorneys and defense lawyers to sort it all out. This is particularly true if you have to use your gun outside of your home. In just the last two weeks we have had several members use their guns in defense of themselves and/or their property. Every single member has been taken into custody and each one received a free ride downtown. Further, every single one of them had never before been in trouble with the police. We are not alarmists; we simply want you to know the reality that it can happen to you.
While you may be lucky and never have to take this ride, it is a wise policy to make sure you have a plan in place just in case you are arrested. You must understand when you are taken into custody, you are in the legal system with all its flaws and warts, the good and the bad. First, you must understand that the police have up to 48 hours to present you to a magistrate, charge you with an offense and allow you to have a bail (legalese for the fact that the police can hold you for up to 48 hours without charging you with anything). I will leave an in depth analysis of the legal rights of the police to hold you without charging you for another newsletter. For purposes of this newsletter, I am going to assume that you have been arrested and charged with an offense. While for purposes of our program, I am specifically referring to charges resulting from "use of a firearm." For general purposes of having a plan in case of arrest, it can be implemented regardless of the criminal charge.
First of all, this is real life; it is not like television! While CSI can solve a murder in 60 minutes from start to finish with time left over for their sponsors, if you are arrested, you will find yourself waiting, waiting and waiting most of the time. The time it takes just to get processed into the "system" and to appear on a clerk's computer screen at the jail, may take longer than a whole season of CSI episodes. You must understand that you may be cut off from the outside world, including your attorneys, for hours. Because you never know how a situation will develop, or for that matter where you will be arrested, assume that your ability to communicate with the outside world is very limited. The proverbial one phone call may or may not be your reality for a while. Therefore, if you only get that one call, make it count!!!
If you are in jail, what do you need most from the outside world? Leaving aside all of the lawyer issues and other legal issues involved in the defense of your case for one moment, in this humble lawyer's experience, most people want and need: 1) assistance getting out of jail if possible, and 2) help minimizing the immediate effects the arrest may have on the rest of your life. It is for these two needs that you should have a plan of action.
Your Lifeline:
If you are arrested, you will need someone on the outside who can make financial decisions to help you while you are indisposed. This person can be a spouse, friend, family member or anyone that you believe will assist you if you are arrested. It is a good idea to check with this person and make sure that he/she is willing to assist you financially if the wheels come off your wagon and you are arrested. I point out this fundamental fact because in one case our Firm was handling a while back, a husband was arrested and when the gentleman called his wife to help him bail out, she felt that some time behind bars might be good for him. This did not have a positive effect on their marital bliss! So, please check with your lifeline to make sure they will help you and make sure you have their phone number memorized. Don't just program their telephone number into your cell phone; you may not have access to that nice smartphone while you are in custody or it might be dead when they finally let you use it. You must memorize the phone number. If you made your first telephone call in custody to your lawyers (an excellent idea), make sure you give them all of your lifeline's information so they can coordinate with them to help you.
Information and Money:
Next, you must plan on the fact that you will not have access to anything which will help your circumstance while you are in jail. Therefore, make sure you have all the information that you may need in one centralized place so that you can get the necessary information to your lifeline who can help you if you get arrested. Everyone's list of critical information may be different, but I suggest that you may want to include at minimum the following:
1) a list of other people and their contact information who could help you;
2) work contact information, so that you don't lose your job also;
3) MONEY. Make sure that you have the ability to direct your lifeline to money that could possibly be used as your bail bond fees (whether this is cash at home, money in an account, an I.O.U. from a friend, a family member who would loan you the money, etc.). If you are in jail, you will want to be out of jail. So have a plan to make bail before anything ever happens;
4) name and contact information for a bail bonding company, it is better to select one before you need it; and
5) any other information that your circumstances dictate, (i.e. telephone numbers for day care, pet care, doctors, medications, etc.).
This is all very common sense information, but few of us think about these things ever happening to us. Planning to be arrested is right up there with pre-arranged funerals and root canals; they are all on the list of things I don't want to do today. However, if it happens to you, and you have a plan in place, your time in custody may be a lot less stressful.
Above all else, if you are arrested, don't panic, remain calm and don't say anything without your lawyer's advice. You must realize that it could be awhile before your lawyer or your loved ones can find out where you are in "the system", much less gain access to you. Be patient. Unfortunately, if you are perceived by the police and the jailers as "a problem", you could be the victim of being "tuned up" or being "lost in the system". These are two things whose existence is denied by all in the jail system. However, these "attitude adjustments" with people in custody continue to happen with alarming frequency. Jail is not like television; it is much worse! Always remember to be calm, be courteous and be quiet. These things will have an effect on not only how long it takes to get you processed out of jail, but may ultimately have an effect on the outcome of your case. I hope none of you ever need your plan to be arrested, but as always, if you need us, we are here to help.
Michael D. Wisdom
President & Attorney at Law
Walker, Rice and Wisdom, P.C.
1020 Bay Area Blvd. Suite 220
Houston, Texas 77058
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