A few weeks ago it was brought up that San Antonio has weapons codes which violate State preemption laws. I am sending the following message to city council. They do not have an email address so I will have to do this the old fashioned way.
I submit the following draft to all of you in order to pick out anything I may have missed. I used links provided by TGT members to gather this information, for which I thank all of you who took the time to provide such. Attached at the bottom of this post is a .doc version which is much easier to read.
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Good morning. It has come to my attention that several San Antonio municipal codes are in direct violation of the Texas constitution which specifically forbids municipalities from enacting weapons laws which are more constrictive than those of the State. Specifically, Chapter 229 of TX Local Government Code (Misc Regulatory Authority of Municiplities) states:
Sec. 229.001. FIREARMS; EXPLOSIVES. (a) A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies.
(b) Subsection (a) does not affect the authority a municipality has under another law to:
(1) require residents or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose;
(2) regulate the discharge of firearms within the limits of the municipality;
(3) regulate the use of property, the location of a business, or uses at a business under the municipality's fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the intent of Subsection (a) or Subdivision (5) of this subsection;
(4) regulate the use of firearms in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety;
(5) regulate the storage or transportation of explosives to protect public health and safety, except that 25 pounds or less of black powder for each private residence and 50 pounds or less of black powder for each retail dealer are not subject to regulation; or
(6) regulate the carrying of a firearm by a person other than a person licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, at a:
(A) public park;
(B) public meeting of a municipality, county, or other governmental body;
(C) political rally, parade, or official political meeting; or
(D) nonfirearms-related school, college, or professional athletic event.
(c) The exception provided by Subsection (b)(6) does not apply if the firearm is in or is carried to or from an area designated for use in a lawful hunting, fishing, or other sporting event and the firearm is of the type commonly used in the activity.
(d) The exception provided by Subsection (b)(4) does not authorize the seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition.
The following municipal codes from the San Antonio TX Code of Ordinances all violate the previous premption law:
Sec. 21-16. - Carrying loaded rifle or shotgun.
It shall be unlawful for any person, other than duly authorized peace officers, to carry a loaded rifle or shotgun on any public street within the city or in a motor vehicle while the same is being operated on any public street within the city.
Sec. 21-17. - Certain knives prohibited generally; exceptions; penalty for violation.
(a) It shall be unlawful for any person to intentionally or knowingly carry on or about his person a knife with a blade less than five and one-half (5½) inches in length, which knife is equipped with a lock mechanism so that upon opening, it becomes a fixed blade knife.
(b) The above prohibition set forth in subsection (a) shall not be applicable to a person carrying such a knife:
(1) In the actual discharge of his duties as a peace officer, a member of the armed forces or national guard, or a guard employed by a penal institution;
(2) On his own premises or premises under his control;
(3) Traveling;
(4) Engaged in lawful hunting, fishing or other lawful sporting activity; or
(5) Using such a knife in connection with a lawful occupation, during such utilization.
Sec. 21-154. - Possession of or access to firearm by person under seventeen years of age.
(a) It shall be unlawful for any person seventeen (17) years of age or older to intentionally, knowingly, recklessly, or with criminal negligence facilitate, suffer, or permit the discharge of a firearm by any person under the age of seventeen (17) by allowing that person to obtain unsupervised access to the firearm.
(b) It shall be unlawful for any person seventeen (17) years of age or older to intentionally, knowingly, recklessly, or with criminal negligence facilitate, suffer, or permit the physical possession of a firearm by any person under the age of seventeen (17) by allowing that person to obtain unsupervised access to the firearm.
(c) It is an affirmative defense to prosecution under subsections (a) and (b) that:
(1) The firearm was possessed or discharged at a firing range or an area designated for target practice and was possessed or discharged under the supervision of any person seventeen (17) years of age or older; or
(2) The access to the firearm was obtained as a result of the commission of a crime; or
(3) The possession or discharge of the firearm was justified under the provisions of Chapter 9 of the Texas Penal Code; or
(4) Reasonable precautions under the attendant circumstances were taken to prevent unsupervised access to the firearm by any person under the age of seventeen (17).
Sec. 21-155. - Possession of knife.
It shall be unlawful for any person under the age of seventeen (17) to possess or carry any knife on a public roadway or public right-of-way; on any other property in which a governmental entity has an interest; or on private property without the permission of the owner or the person in control of the property within the city limits of the City of San Antonio.
Sec. 21-156. - Possession of firearm restricted.
(a) It shall be unlawful for any person under the age of seventeen (17) to carry a firearm on a public roadway or public right-of-way; on any other property in which a governmental entity has an interest; or on private property without the permission of the owner or person in control of the property within the city limits of the City of San Antonio.
(b) It is an affirmative defense to prosecution for a violation of this provision that: The firearm is being carried at a firing range or an area designated for target practice.
(c) Law enforcement officers authorized to enforce this article are hereby authorized to seize any firearms in the possession of any person under the age of seventeen (17) in the city limits of the City of San Antonio where there is probable cause to believe said firearms are being or will be used in the commission of a crime or where they pose a danger to said persons or others. The firearms shall be held by the San Antonio Police Department and released only to an adult who can demonstrate ownership. This provision will serve to prevent those under the age of seventeen from harming themselves or others. Firearms not claimed within ninety (90) days shall be destroyed.
(d) A letter shall be sent by the Department of Community Initiatives to the parent(s) or guardian(s) of any person charged under this section advising of the charge and asking for their cooperation in better supervising the child.
Please advise as to what actions will be taken to remove these unconstitutional laws from the Code of Ordinances as well as their enforcement by all law enforcement operating inside the city limits. Thank you.
I submit the following draft to all of you in order to pick out anything I may have missed. I used links provided by TGT members to gather this information, for which I thank all of you who took the time to provide such. Attached at the bottom of this post is a .doc version which is much easier to read.
------------------------
Good morning. It has come to my attention that several San Antonio municipal codes are in direct violation of the Texas constitution which specifically forbids municipalities from enacting weapons laws which are more constrictive than those of the State. Specifically, Chapter 229 of TX Local Government Code (Misc Regulatory Authority of Municiplities) states:
Sec. 229.001. FIREARMS; EXPLOSIVES. (a) A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies.
(b) Subsection (a) does not affect the authority a municipality has under another law to:
(1) require residents or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose;
(2) regulate the discharge of firearms within the limits of the municipality;
(3) regulate the use of property, the location of a business, or uses at a business under the municipality's fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the intent of Subsection (a) or Subdivision (5) of this subsection;
(4) regulate the use of firearms in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety;
(5) regulate the storage or transportation of explosives to protect public health and safety, except that 25 pounds or less of black powder for each private residence and 50 pounds or less of black powder for each retail dealer are not subject to regulation; or
(6) regulate the carrying of a firearm by a person other than a person licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, at a:
(A) public park;
(B) public meeting of a municipality, county, or other governmental body;
(C) political rally, parade, or official political meeting; or
(D) nonfirearms-related school, college, or professional athletic event.
(c) The exception provided by Subsection (b)(6) does not apply if the firearm is in or is carried to or from an area designated for use in a lawful hunting, fishing, or other sporting event and the firearm is of the type commonly used in the activity.
(d) The exception provided by Subsection (b)(4) does not authorize the seizure or confiscation of any firearm or ammunition from an individual who is lawfully carrying or possessing the firearm or ammunition.
The following municipal codes from the San Antonio TX Code of Ordinances all violate the previous premption law:
Sec. 21-16. - Carrying loaded rifle or shotgun.
It shall be unlawful for any person, other than duly authorized peace officers, to carry a loaded rifle or shotgun on any public street within the city or in a motor vehicle while the same is being operated on any public street within the city.
Sec. 21-17. - Certain knives prohibited generally; exceptions; penalty for violation.
(a) It shall be unlawful for any person to intentionally or knowingly carry on or about his person a knife with a blade less than five and one-half (5½) inches in length, which knife is equipped with a lock mechanism so that upon opening, it becomes a fixed blade knife.
(b) The above prohibition set forth in subsection (a) shall not be applicable to a person carrying such a knife:
(1) In the actual discharge of his duties as a peace officer, a member of the armed forces or national guard, or a guard employed by a penal institution;
(2) On his own premises or premises under his control;
(3) Traveling;
(4) Engaged in lawful hunting, fishing or other lawful sporting activity; or
(5) Using such a knife in connection with a lawful occupation, during such utilization.
Sec. 21-154. - Possession of or access to firearm by person under seventeen years of age.
(a) It shall be unlawful for any person seventeen (17) years of age or older to intentionally, knowingly, recklessly, or with criminal negligence facilitate, suffer, or permit the discharge of a firearm by any person under the age of seventeen (17) by allowing that person to obtain unsupervised access to the firearm.
(b) It shall be unlawful for any person seventeen (17) years of age or older to intentionally, knowingly, recklessly, or with criminal negligence facilitate, suffer, or permit the physical possession of a firearm by any person under the age of seventeen (17) by allowing that person to obtain unsupervised access to the firearm.
(c) It is an affirmative defense to prosecution under subsections (a) and (b) that:
(1) The firearm was possessed or discharged at a firing range or an area designated for target practice and was possessed or discharged under the supervision of any person seventeen (17) years of age or older; or
(2) The access to the firearm was obtained as a result of the commission of a crime; or
(3) The possession or discharge of the firearm was justified under the provisions of Chapter 9 of the Texas Penal Code; or
(4) Reasonable precautions under the attendant circumstances were taken to prevent unsupervised access to the firearm by any person under the age of seventeen (17).
Sec. 21-155. - Possession of knife.
It shall be unlawful for any person under the age of seventeen (17) to possess or carry any knife on a public roadway or public right-of-way; on any other property in which a governmental entity has an interest; or on private property without the permission of the owner or the person in control of the property within the city limits of the City of San Antonio.
Sec. 21-156. - Possession of firearm restricted.
(a) It shall be unlawful for any person under the age of seventeen (17) to carry a firearm on a public roadway or public right-of-way; on any other property in which a governmental entity has an interest; or on private property without the permission of the owner or person in control of the property within the city limits of the City of San Antonio.
(b) It is an affirmative defense to prosecution for a violation of this provision that: The firearm is being carried at a firing range or an area designated for target practice.
(c) Law enforcement officers authorized to enforce this article are hereby authorized to seize any firearms in the possession of any person under the age of seventeen (17) in the city limits of the City of San Antonio where there is probable cause to believe said firearms are being or will be used in the commission of a crime or where they pose a danger to said persons or others. The firearms shall be held by the San Antonio Police Department and released only to an adult who can demonstrate ownership. This provision will serve to prevent those under the age of seventeen from harming themselves or others. Firearms not claimed within ninety (90) days shall be destroyed.
(d) A letter shall be sent by the Department of Community Initiatives to the parent(s) or guardian(s) of any person charged under this section advising of the charge and asking for their cooperation in better supervising the child.
Please advise as to what actions will be taken to remove these unconstitutional laws from the Code of Ordinances as well as their enforcement by all law enforcement operating inside the city limits. Thank you.
