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Austin American-Statesman Op-Ed, January 15, 2016: Open carry law leaves questions hanging

Executive Director

Note: this op-ed was originally published in the Austin American-Statesman on January 15, 2016.

The implementation of Texas’ new open carry law, House Bill 910, is generating questions from individuals and groups. Policymakers should not be surprised that there are a lot of questions about the new law — but they might discover cause for concern in the lack of clear answers to those questions.

Some questions reflect individual preferences. For example, social media is full of crowd-sourced lists of businesses that do or do not allow openly carried handguns.

But many of the questions regard legal compliance. Although it was designed to affirm individual liberty, HB 910 created new regulations and responsibilities for businesses, churches and other facilities. Under HB 910, these organizations must decide whether to allow openly carried guns in their buildings. If they decide to prohibit openly carried guns, they are required to take certain steps to post a notice at the entry to their buildings.

Some state-regulated facilities are required to prohibit guns in their buildings. In such cases, while an organization may not have the choice to allow guns, they still could have questions about what steps to take to prohibit them.

Questions are often part of the process of implementing new laws — so much so, in fact, that legislation often includes provisions for answering questions after a bill becomes law. Rule-making, stakeholder groups and oversight committees are a few examples of common strategies for creating a forum for questions and answers during legislative implementation.

Legislators create these forums for clarification because they know that even with everyone’s best efforts, it’s almost impossible to write a bill that every person will read and understand exactly the same way. People inevitably will have questions. It’s especially important to create mechanisms for addressing future questions when the legislation — like HB 910 — is intended to affect the entire public.

Many organizations have questions about the mechanics of prohibiting guns. These include questions about posting signs and how to interact with law enforcement.

HB 910 included no provisions for addressing these questions. While the bill includes rule-making authority for the Department of Public Safety to promulgate “an informational form that describes state law regarding the use of deadly force and the places where it is unlawful for the holder of a license issued under this subchapter to carry a handgun,” the bill included no similar direction for DPS or any other agency to provide information to organizations that might wish or be required to prohibit guns from their buildings.

Regardless of the fact that lawmakers made no provision to address the inevitable questions surrounding implementation of open carry, the ramifications of the answers are substantive. Organizations that are required to prohibit guns and don’t understand what steps to take could face penalties. Organizations that intend to prohibit guns but fail to take the correct steps could face backlash from members or customers. Though professional advice from attorneys could help some organizations sort through their options and responsibilities, it comes at some cost.

Lawmakers could have guessed that HB 910 would provoke questions and confusion because stakeholders testified so during the legislative session. The public hearing process is intended to reveal concerns about legislation so the authors can add provisions to address those concerns before the legislation becomes law — but in the case of HB 910, that process failed.

For many Texans, the advent of open carry has sparked a debate about whether handguns are safe. But from a legislative policy perspective, HB 910 itself is unsafe. Through the passage of widely applicable legislation without adequate provision for responsible implementation, lawmakers created a hazardous policy environment. The question Texans should be asking now is will they fix it?

Moorhead is executive director of the Texas Interfaith Center for Public Policy/Texas Impact.

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