No. 05-02-01023-CR
AFFIRM and Opinion issued June 17, 2003 Do Not Publish
On Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MA01-60023-N.
Before Justices WHITTINGTON, RICHTER, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Richter.
Baron Eugene Scott appeals his conviction of unlawfully carrying a handgun. Pursuant to a plea bargain agreement, the trial court found appellant guilty, assessed punishment at 180 days in jail, probated for twelve months, and imposed a $100 fine. In two issues, appellant questions whether the trial court erred in denying his motion to dismiss on the grounds that section 46.02 of the Texas Penal Code is unconstitutional generally and as it is applied to him. We affirm.
Background
In August 2001, police stopped and arrested appellant for unlawfully carrying a handgun as he stood outside his apartment. Appellant was subsequently charged by information. In May 2002, appellant filed his motion to dismiss in which he argued section 46.02 of the Texas Penal Code was unconstitutional on its face because it violated the Second Amendment and, alternatively, it was unconstitutional as it applied to him. At the beginning of the hearing, appellant verbally added that the statute also violated the Texas Constitution. The trial court then denied appellant's motion to dismiss, and appellant pleaded no contest pursuant to a plea agreement, conditioned on the right to appeal the constitutional issues set forth in his motion to dismiss. The trial court accepted appellant's plea and assessed punishment. This appeal ensued. In his first issue, appellant recognizes that his request for the granting of his motion to dismiss is contrary to previous opinions issued the United States Supreme Court and the Texas Court of Criminal Appeals. See United States v. Miller, 307 U.S. 174 (1939) (holding Second Amendment challenge to federal gun control law prohibiting transport of sawed-off shotguns in interstate commerce, that "[i]n the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."); Moosani v. State, 914 S.W.2d 569 (Tex.Crim.App. 1995). Nevertheless, he asks this Court to re-examine the constitutionality of section 46.02 of the Texas Penal Code based primarily on U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), which held that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. See Emerson, 270 F.3d at 264 (distinguishing Miller). He argues the Second Amendment, which affords the right to keep and bear arms, is a fundamental right that applies to the states, that individuals can assert, and that the government must adequately show it is a statute precisely tailored to serve a compelling governmental interest (a strict scrutiny analysis). While appellant acknowledges that the State has a compelling interest in preventing crime and regulating handguns by means of enacting civil statutes, he argues the State does not necessarily have a compelling interest in regulating handguns for individuals not previously convicted of a felony. Thus, the State has not shown that section 46.02 is narrowly tailored to attain its objective while protecting a fundamental right. Appellant adds that section 46.02 is unconstitutional on its face in violation of the Second Amendment, because, while the Second Amendment provides the fundamental right of an individual to keep and bear arms, section 46.02 provides that the carrying of a handgun on one's person is a crime. Appellant also argues the Second Amendment is unconstitutionally overbroad. Lastly, appellant contends the application of section 46.02 is unconstitutional as it is applied to him because section 46.15 does not provide appellant with an affirmative defense, as he was found carrying the handgun in the common area of his apartment complex, and section 46.15 only provides an affirmative defense to those persons who are found carrying handguns while on their own premises or on premises under their own control. See Tex. Penal Code Ann. § 46.15(b)(2) (Vernon 2003). In presenting this last contention, appellant incorporates the arguments concerning the Second Amendment. Appellant's arguments depend on the determination (1) that the Second Amendment applies to the states, and if it does, (2) that the Second Amendment provides individuals with a fundamental, individual right, as opposed to providing states the collective right to maintain a militia. He argues that the Second Amendment applies to the states because the United States Supreme Court cases that have held in direct contravention to his argument predated the Court's later decisions to incorporate certain provisions of the first eight Amendments into the Due Process Clause of the Fourteenth Amendment. According to appellant, the natural reading of the Second Amendment's phrase, "right of the people," creates not a state right, but one that individuals can assert. Thus, the Second Amendment is not excepted from incorporation into the Due Process Clause of the Fourteenth Amendment. Notwithstanding appellant's reliance on Emerson, this Court is bound by the decisions of the United States Supreme Court and the Texas Court of Criminal Appeals. In Masters v. State, 685 S.W.2d 654, 655 (Tex.Crim.App. 1985), the court held that the Second Amendment simply does not apply to the states or their subdivisions. In joining the opinion, Judge Clinton added that "so long as the Supreme Court of the United States adheres to its longstanding construction of the Second Amendment, this Court and all other Texas courts are dutybound to follow it and apply that construction." See Masters, 685 S.W.2d at 656. The Second Amendment does not have the preemptive effect of imposing any regulation on keeping, bearing, and wearing arms. See id. (citing Miller). In line with those cases upon which we are dutybound to follow, we conclude the Second Amendment does not apply to the states. This conclusion disposes of appellant's remaining arguments. We affirm the judgment of the trial court.