The United States Supreme Court, in the landmark case D.C. v. Heller, 554 U.S. 570 (2008), held that the 2nd Amendment is an individual right — not a collective right belonging to the Militia or to the State — that existed prior to the ratification of the Constitution. In other words, the purpose of the 2nd Amendment is to protect a right which preexisted ratification of the Constitution.
In another landmark case, McDonald v. Chicago, 561 U.S. 742, the United State Supreme Court held that, just as other amendments which protect civil rights, such as those relating to religion and speech (1st Amendment), unlawful searches and seizures (4th Amendment), due process of law (5th Amendment), and cruel and unusual punishment (8th Amendment), the 2nd Amendment was “incorporated” and make applicable to the States by the post-civil war era 14th Amendment.
Thus, the United States Supreme Court has ruled that “the people” — United States citizens — have a constitutional right to “keep” and “bear” that is, possess and carry in public, common firearms that are suitable for self-defense, D.C. v. Heller, and that neither the federal nor state governments may infringe these rights. McDonald v. Chicago.
A small minority of states have enacted what are known as “Constitutional Carry” laws, meaning that if a person may lawfully possess firearms, that person may — without a license — lawfully carry a concealed handgun in public.
On the other hand, the vast majority of states, including Texas, now have some sort of licensing scheme which allows residents and, often, non-residents, to obtain a concealed carry license.
Of the states that issue concealed carry licenses, some are classified as “may-issue” states, while others are classified as “must-issue” states. In a “may-issue” state, an applicant for a concealed carry license may be denied a license even though the applicant has met all the objective statutory requirements for a license, such as training, background check, and payment of a fee. In “may-issue” states, applicants must also pass a subjective “good cause” test. “Good cause” is determined by a government official who possesses almost unlimited discretion to deny licenses to otherwise fully-qualified applicants. Unfortunately, in many jurisdictions, the “good cause” test seems to consist of little more than whether the applicant is politically-connected in the jurisdiction where the license is sought.
In “must-issue” states, an applicant for a concealed carry license is statutorily entitled to the license if the applicant meets all the objective criteria for the license. Texas, fortunately, is a must-issue state.
However, just because Texas is a must-issue state, that does not mean that every Texan who may lawfully possess firearms is statutorily eligible for a concealed carry license, which in Texas is known as a License to Carry (LTC) a Handgun.
The most common reason our Texas law firm sees for LTC denials is criminal history. More specifically, it is not uncommon for an LTC applicant to have run afoul of the law at sometime in the past, typically when the applicant was a young adult. Now, after many years of being a responsible member of society, the applicant is still haunted by that youthful indiscretion.
The relevant statute which applies to this issue states that a person is ineligible for an LTC if the person has even been “convicted” of certain crimes — including crimes which do not affect the applicant’s right to lawfully possess firearms. The statute does contain exceptions, but unfortunately, by the time an LTC applicant contacts a lawyer, it is not possible, or at least feasible, for the applicant to take advantage of an exception, because the applicant’s LTC application has already been denied.
Many applicants who are denied an LTC mistakenly believe that they were not “convicted” of a disqualifying offense. Almost invariably, these applicants believe that because they successfully completed deferred adjudication for an LTC disqualifying offense, they were not “convicted” of that offense. Sometimes this belief is correct; often it is not.
The reason for this confusion is that not all Texas deferred adjudications are “created equal.” Different courts use different deferred adjudication forms and, of course, these different forms contain different deferred adjudication clauses. The old saying “words mean things” is especially applicable in this context.
Persons whose LTC applications have been denied by the Texas Department of Public Safety (DPS) have a right to an administrative hearing to appeal the denial. Administrative hearings are held in a Justice Court in the locality where the applicant resides.
In order to successfully appeal the denial of an application for an LTC, the applicant — or the applicant’s attorney — must be able to successfully rebut evidence introduced by the DPS in support of its denial of the application for an LTC. In order to do this, it will typically be necessary to make a legal argument, supported by citations to statutory law and/or judicial decisions, which seeks to persuasively demonstrate to the Court that the DPS wrongfully denied the application for an LTC.
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Lapin Law Group, with its principal office in the Dallas-Forth Worth Metroplex, serves all 254 Texas counties.