Anyone who knows me knows that I am into guns and gun rights. Folks who know this know they can ask me questions about it any time they like. But just as with my faith, I am by no means an expert but I know where I can get the answers.
There is so much misunderstanding in regards to guns that I figured I would start a series on what is allowed and not allowed in regards to firearms in the state of Texas. We will begin with facts that are relevant to everyone regardless of whether they are licensed or not.
Who can have one?…Don’t you have to be 21?
This is probably the most common question I get asked. The answer to this is two fold. When people ask this question, they are usually equating whether someone can buy a gun to whether someone can possess a gun. They are two separatesubjects and dependent on the gun.
Buying a firearm
The minimum age required to make a firearm purchase from a dealer that is under license by the U.S. Department of Alcohol, Tobacco, Firearms and Explosives is 18 for a rifle or a shotgun and 21 for a handgun (why is there a difference? You got me! Makes no sense but that is the way it is.) The purchase is prohibited to the afore mention persons if:
- That person is currently under indictment for a crime punishable by more than a year in prison
- That person has been previously convicted of such a crime
- That person is a fugitive
- That person is a user of any controlled substance
- That person has been committed to a mental institution or deemed mentally defective
- That person is an illegal alien
- That person has been dishonorably discharged from the military
- That person has renounced his or her U.S. citizenship
- That person currently has a restraining order against him or her from an intimate partner or child of said partner
- That person has been convicted of a domestic violence misdemeanor
The above is just a short list of what will disqualify you according to the federal government. State law cannot allow for anything that isn’t allowed by federal law for the simple fact that the Federal Firearm Licensed dealer gets his rules that he is required to play by from the federal agency that issued his license.
When you go to purchase a firearm, you have to fill out a BATF form. Once the form is filled out, the FFL dealer makes a phone call or logs onto a website. That call or web inquiry goes to the National Instant Criminal Background Check System (NICS). The dealer will give them your Social Security Number (SSN) and say that you are attempting to purchase a handgun…or shotgun…or rifle. No details as to what particular model of gun or serial number is given to the Federal Bureau of Investigation who facilitates the NICS hotline.
The answer to this inquiry will be one of three: ‘proceed’, ‘denied’ or ‘delayed’. The ‘proceed’ and ‘denied’ are self-explanatory but the ‘delayed’ isn’t…lol. ‘Delayed’ means just wait. They have 48 hours to call the dealer back and say ‘denied’ to the purchase. Otherwise, it is, by default, a ‘proceed’.
Now, this isn’t so we can let criminals have guns. This is to protect your second amendment rights. In this country, you are innocent until proven guilty. If they can’t find a reason to deny you the purchase of a gun, then that right should not be curtailed.
No right should be curtailed without due process. I am a firm believer in this. If a right is to be revoked, it should require a judge AND jury of your peers through due process.
Possessing a firearm
Now that we have covered the basics on the purchase of a firearm, let’s talk about who can have one in their possession.
State law assumes most of the control of this. Basically, everyone can unless you meet one of the disqualification criteria. If you are one of the prohibited persons, you know who you are. If you have no reason to believe you are prohibited, it is safe to say you can possess a firearm.
If there is any question in your mind, Texas Penal code 46.04 Unlawful Possession of a Firearm covers this.
As stated before, you must be 21 to buy a handgun and 18 to buy a rifle or shotgun. But that doesn’t mean you must be that old to possess them.
Let’s use my daughter as an example. She is 20 (I can’t believe she is 20!) She cannot go into a store and buy a handgun…or even the ammunition for that matter (but she can a rifle, shotgun or ammunition for them.) But I can let her possess a handgun. I can give it to her.
State law states that the only prohibition on allowing my kids to possess a firearm is under 17. They are not breaking the law by possessing it…I am breaking the law by allowing them to. So, say I had a 16 year old son and he had one of my guns in his pick-up. He can’t be prosecuted for having it (WHERE he has it is another topic) but I can be prosecuted for letting him run around with it unsupervised.
This by no means suggests that you can’t take your 8 year old son shooting. It means you can’t let him take possession of a gun under his own cognizance. He cannot have unfettered access to them.
This is covered by Texas Penal Code 46.13 Making a Firearm Accessible to a Child.
In a nutshell, if there has never been a time where someone in legal authority (i.e. a judge, parole officer, probation officer, etc.) told you that state law prohibits you from possessing a firearm, you are more than likely good to go.
If you were told by such a person, that you cannot, they would be the ones to tell you you when you can again. We will make the subject of prohibited persons another discussion though.
Y’all stay safe and keep a round in the chamber