Article I, Section 23 of the Texas Constitution ("Right to Keep and Bear Arms")

Adopted February 15, 1876:

Every citizen shall have the right to keep and bear arms in the lawful defence [sic] 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.

Editor Comments

This section's substance is at least to some degree independent of the differently worded Second Amendment to the federal constitution. Cf. Stephen Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629, 668 (1989) ("Under the 1876 guarantee, the legislature (but not a locality) could regulate how arms were to be worn, i.e., openly or concealed, but could not bar the wearing of weapons per se.").

Note that the second clause of this section, added by the Constitutional Convention of 1875, is a verbatim copy of the second clause of Article I, Section 26 of the Tennessee Constitution. Cf. Andrews v. State, 50 Tenn. 165, 180 (1871) ("The Convention of 1870, knowing that there had been differences of opinion on this question, have conferred on the Legislature in this added clause, the right to regulate the wearing of arms, with a view to prevent crime.").

Attorney Steve Smith

Recent Decisions

  • Wilson v. State, 44 S.W.3d 602, 605 (Tex.App.–Fort Worth 2001, ref'd) ("Wilson's contention that this restriction 'serves no purpose in preventing crime' overlooks the fact that convicted felons are not necessarily outside their homes when they commit crimes. Felons are just as capable of committing crimes with firearms in or around . . . . Furthermore, the legislature could have rationally restricted convicted felons from possessing firearms anywhere for a five-year period to reduce the rate of recidivism. Wilson, therefore, has failed to demonstrate that section 46.04 unreasonably contravenes the right to bear arms guaranteed by the Texas Constitution.")

Historic Decisions

  • Masters v. State, 685 S.W.2d 654, 655 (Tex.Crim.App. 1985) ("We granted discretionary review to consider appellant's contentions that Sec. 46.02 is violative of Art. 1, Sec. 23 of the Texas Constitution and of the Second Amendment to the Constitution of the United States of America. We rejected the first of these contentions in Roy v. State, 552 S.W.2d 827 (Tex.Cr.App. 1977), citing Collins v. State, 501 S.W.2d 876 (Tex.Cr.App. 1973) and Morrison v. State, 339 S.W.2d 529 (Tex.Cr.App. 1960). . . . This power was held in Roy, supra, and its progenitors to authorize regulatory statutes such as Sec. 46.02 and its predecessors, and we continue to so hold.")
  • Jennings v. State, 5 Tex.Ct.App. 298, 300-01 (1878) ("While it has the power to regulate the wearing of arms, it has not the power by legislation to take a citizen's arms away from him. One of his most sacred rights is that of having arms for his own defense and that of the State. This right is one of the surest safeguards of liberty and self-preservation. The act under consideration contains other useful and salutary provisions which have been held not obnoxious to any just constitutional exceptions by a long line of decisions in this State, and which are capable of being executed independent of that part of it which is herein decided to be unconstitutional.")
  • State v. Duke, 42 Tex. 455, 458-59 (1875) ("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 self-defense, as well as such as are proper for . . . . It undertakes to regulate the place where, and the 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 self-defense or in the public service, and the right to have one at the home or place of business.")
  • English v. State, 35 Tex. 473, 478-79 (1871) ("It is furthermore claimed that this is a law in violation of the thirteenth section, first article, of our own constitution . . . . But we do not intend to be understood as admitting for one moment, that the abuses prohibited are in any way protected either under the state or federal constitution. We confess it appears to us little short of ridiculous, that any one should claim the right to carry upon his person any of the mischievous devices inhibited by the statute, into a peaceable public assembly, as, for instance into a church, a lecture room, a ball room, or any other place where ladies and gentlemen are congregated together.")
  • Cockrum v. State, 24 Tex. 394, 401-02 (1859) ("The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. . . . It is one of the 'high powers' delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power.")

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