No. 05-03-00363-CR
Opinion issued June 3, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. WX02-00081-J. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice Morris.
In this case, Daniel Perez, Jr. is charged with the offense of unlawfully carrying a firearm, in violation of section 46.02 of the Texas Penal Code. Appellant filed a pretrial application for writ of habeas corpus seeking dismissal of the charge on the grounds that the portion of section 46.02 prohibiting carrying a handgun on or about his person violates the United States Constitution, the Texas Constitution, and articles 1.04 and 1.27 of the Texas Code of Criminal Procedure. The trial court denied appellant the relief he sought, and this appeal followed. In his sole issue presented, appellant asserts the trial court erred in denying the requested relief on the grounds that section 46.02 is unconstitutional. For the reasons that follow, we overrule appellant's point of error and affirm the trial court's order denying appellant the relief he sought.
In his application for writ of habeas corpus, appellant identifies the trial court number of the charged offense as MA02-51240-J. The application further states that the handgun was discovered in a search of appellant's vehicle following his arrest on outstanding warrants.
Section 46.02 states, in pertinent part, that a "person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun." Tex. Pen. Code Ann. § 46.02(a) (Vernon 2003). The offense is a Class A misdemeanor unless the offense is committed on any premises licensed or issued a permit by the state for the sale of alcoholic beverages. See id. § 46.02(b), (c).
State Constitution and Texas Code of Criminal Procedure
Appellant contends that section 46.02 is unconstitutional under Article I, section 23 of the Texas Constitution and contrary to articles 1.04 and 1.27 of the Texas Code of Criminal Procedure. The State responds that appellant did not separately brief his state claims. Appellant's entire argument addresses his United States Constitutional claims. A point of error contending a violation of the Texas Constitution that is not separately briefed setting forth supporting arguments and authorities is inadequately briefed and will not be addressed. See Garcia v. State, 919 S.W.2d 370, 388 (Tex.Crim.App. 1996) (op. on reh'g). Therefore, we will not address appellant's claims that section 46.02 violates the Texas Constitution and the code of criminal procedure. Federal Constitutional Claims
Appellant asserts that section 46.02 violates the Second Amendment as that amendment is applied to the states through the Fourteenth Amendment. Appellant concedes that his request for dismissal of the charge is contrary to existing case law from the United States Supreme Court and the Texas Court of Criminal Appeals. Appellant, however, urges us to re-examine the constitutionality of section 46.02 in light of United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002), and certain statements made by the Honorable John Ashcroft, Attorney General of the United States. The State responds that appellant's concession that existing case law out of the United States Supreme Court is contrary to his position ends the analysis. The State argues that this Court is bound by the Supreme Court's pronouncement on the issue. We agree with the State. In United States v. Cruikshank, 92 U.S. 542, 553 (1876), the Supreme Court held that the Second Amendment is "one of the amendments that has no other effect than to restrict the powers of the National Government." This holding was reaffirmed in Presser v. Illinois, 116 U.S. 252, 265 (1886), in which the Court stated "the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state." In United States v. Miller, 307 U.S. 174 (1939), the Court said that the Second Amendment must be interpreted in view of its "obvious purpose to assure the continuation and render possible the effectiveness" of state militias for which the declaration and guarantee of the Second Amendment was made. Id. at 178. In the absence of showing the possession or use of the gun at issue had "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." Id. Miller has been cited by Texas courts for the holding that the Second Amendment does not grant a right to bear arms unrelated to a well-regulated militia. See, e.g., Moosani v. State, 914 S.W.2d 569, 569 (Tex.Crim.App. 1995) (Clinton, J., in joining opinion of the court); Ex parte Williams, 786 S.W.2d 781, 782 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd); see also Masters v. State, 685 S.W.2d 654, 655 (Tex.Crim.App. 1985) (per curiam) (including Miller in string cite in paragraph addressing appellant's Second Amendment claim). Appellant argues that Cruikshank and Presser should not be regarded as binding precedent because they issued before the Court began "the process of incorporating certain provisions of the first eight amendments into the Due Process Clause of the Fourteenth Amendment." However, appellant cites no post-incorporation authority holding that the Second Amendment is applied to the states through the Fourteenth Amendment, nor have Cruikshank or Presser been overruled. Morever, the Texas Court of Criminal Appeals, citing Cruikshank and Presser, rejected a claim that article 46.02 violated the Second Amendment on the basis that "[t]he Second Amendment simply does not apply to the states or their subdivisions." Masters, 685 S.W.2d at 655. Appellant also urges us to reconsider his Second Amendment claim in light of Emerson. In Emerson, the Fifth Circuit recognized that most of its sister circuits have held the Second Amendment right to bear arms is connected with the maintenance of state militias. Emerson, 270 F.3d at 218-19 (footnoting cases from the First, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits). However, it disagreed that Miller itself supported that position, but said Miller did not resolve the issue of whether there was an individual right. See id. at 226-27. In reviewing the historical context surrounding the adoption of the United States Constitution and the Bill of Rights, the Fifth Circuit concluded that the Second Amendment does protect an individual's right to "privately possess and bear firearms . . . that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller." Id. at 260. The United States Supreme Court has not recently addressed the issue of whether the Second Amendment guarantees an individual right to bear arms. See Printz v. United States, 521 U.S. 898, 938 n. 1 (1997) (Thomas, J., concurring). However, as recently as 1980, the Court cited Miller for the proposition that the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia. See Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980). As an intermediate appellate court, we are bound by the law declared by higher courts. See Sherman v. State, 12 S.W.3d 489, 494 (Tex.App.-Dallas 1999, no pet.); Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Until such time as the Supreme Court revisits the issue of whether the Second Amendment guarantees an individual right to bear arms and whether the Second Amendment applies to states, we are bound by the precedent in Miller and the Texas Court of Criminal Appeals holding that it does neither. Accordingly, we conclude appellant is not entitled to relief on the basis of the Second Amendment. Appellant also argues that section 46.02 constitutes an impingement upon fundamental rights in violation of the Ninth Amendment. Appellant cites no authority for the proposition that the individual right to keep and bear arms is an unenumerated fundamental right, nor have we found any. The United States Supreme Court and the Texas Court of Criminal Appeals have not addressed the issue. However, the cases we have found in which the United States Circuit Courts of Appeals have addressed the issue have held the Ninth Amendment does not provide a separate unenumerated individual right to keep and bear arms. See United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); United States v. Wright, 117 F.3d 1265, 1275 (11th Cir. 1997), vacated in part on other grounds, 133 F.3d 1412 (11th Cir. 1998); San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996); United States v. Broussard, 80 F.3d 1025, 1041 (5th Cir. 1996); Quilici v. Village of Morton Grove, 695 F.2d 261, 271 (7th Cir. 1982); United States v. Warin, 530 F.2d 103, 108 (6th Cir. 1976). We are not bound by the holdings of the federal courts of appeals. Absent any authority to the contrary, however, we see no reason to depart from their holdings that the Ninth Amendment does not provide a separate individual right to bear arms. Accordingly, we conclude appellant is not entitled to relief on his Ninth Amendment claim. Finally, appellant asserts that section 46.02 violates the substantive due process protections of the Fifth Amendment to the Constitution. Appellant argues that because section 46.02 impinges upon his exercise of a fundamental right, we must employ strict scrutiny to determine whether the statute is narrowly tailored to advance a compelling governmental interest. In the context of this argument, appellant argues that section 46.02 is overbroad because it does not take into account the right to bear arms under the Second Amendment. In addition to guaranteeing fair process, the Due Process Clause includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 719 (1997). Because neither the Second Amendment nor the Ninth Amendment provides appellant an individual or fundamental right to bear arms, we do not apply strict scrutiny. Instead, we review the statute under the rational relationship standard of review. See Lens Express, Inc. v. Ewald, 907 S.W.2d 64, 68-69 (Tex.App.-Austin 1995, no writ). The government does not violate a party's substantive due process rights as long as any rational basis exists for the legislation. See Sullivan v. State, 986 S.W.2d 708, 714 (Tex.App.-Dallas 1999, no pet.) (citing Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955)). Handguns have both lawful and unlawful uses. See Ford v. State, 868 S.W.2d 875, 877 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). The state has an interest in preventing crime and ensuring public safety, and, with a view to prevent crime, the legislature has the power by law to regulate the wearing of arms. See Tex. Const. art. I, § 23; Roy v. State, 552 S.W.2d 827, 830 (Tex.Crim.App. 1977), overruled in part on other grounds by Johnson v. State, 650 S.W.2d 414 (Tex.Crim.App. 1983). In fact, appellant concedes the State has a compelling interest in preventing crime. Moreover, the scope of section 46.02 is limited by section 46.15 of the penal code, which provides a number of situations to which section 46.02 does not apply. See Tex. Pen. Code Ann. § 46.15 (Vernon 2003). The provisions of the penal code shall be construed according to the fair import of their terms, to promote justice, and effect the objectives of the code, and unless a different construction is required by the context, section 311.021 applies to construction of the penal code. See id. § 1.05(a), (b). Section 311.021 provides that in enacting a statute, it is presumed the entire statute is intended to be effective. Tex. Gov't Code Ann. § 311.021(2) (Vernon 1998). The reference of one section to another is presumed to have meaning, and a statute that incorporates another statute by reference retains its scope even if the incorporated law expires or is repealed. See Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). Section 46.15 specifically refers to section 46.02. Thus, contrary to appellant's argument, we do read the two statutes together, and conclude that section 46.02 is not overbroad. Finally, because the Second Amendment does not guarantee an individual right to bear arms, section 46.02 is not overbroad in failing to address that amendment. We conclude section 46.02 bears a rational relationship to the State's interest in preventing crime and is not overbroad. Therefore, appellant's Fifth Amendment Due Process claim fails. Having concluded each of appellant's claims fails, we overrule appellant's point of error. We affirm the trial court's order denying appellant the relief sought by his application for writ of habeas corpus.