Unregulated Weapons and Their Effect on Society and Future Regulation

BY SHARESA Y. ALEXANDER AND NIKKI G. MAPLES, MEMBERS OF THE ROBERT CALVERT INN OF COURT

Did you know you could receive a $4,000 fine and up to a year in jail just for carrying a keychain, but nothing for carrying a crossbow or a machete? During its March pupilage team presentation, the Robert Calvert Inn of Court grappled with this and other dichotomies related to regulated versus unregulated weapons.

There are a multitude of weapons and other items that could likely cause serious injury, bodily harm, or even death, but are not regulated by federal or state law. And, when it comes to the potential to cause such harm, many regulated weapons seem to pale in comparison to some of the ones that are not regulated.

For example, for self-defense, a cat-shaped keychain with sharply pointed ears, often carried by women for protection, is considered a “knuckle” under Texas Penal Code Chapter 46. A person is subject to a Class A misdemeanor just for carrying the keychain. However, a crossbow, which is capable of shooting an arrow at over 270 miles per hour and often used for hunting, may be carried anywhere with no restrictions.

Similarly, knives with blades shorter than 5 ½ inches may be carried anywhere, and those over 5 ½ inches may be carried in locations that are not restricted under Chapter 6 of the Texas Penal Code. So, a person may carry a 20-inch machete without recourse, as long as it is not carried in a restricted location.

On a more serious note, on October 1, 2017, a bump stock, which transforms a semi-automatic weapon into an automatic weapon, was used to kill 58 people and injure 851 more during a shooting in Las Vegas. This fatal event sparked a change in legislation, and on March 26, 2019, new rules regulating bump stocks took effect.

Surprisingly, other weapons, such as homemade guns and explosives, air guns, and other potentially dangerous weapons, remain unregulated.

HOMEMADE GUNS

The most common homemade guns are created by gun kits and 3D printers. Generally, gun kits are purchased online by ordinary consumers. Gun-kit vendors evade licensing requirements because the kits are advertised as the sale of parts, without a receiver—thus, not meeting the definition of a firearm under 18 U.S.C. 921(a)(3). Like the gun kits, 3D-printed guns also evade federal regulation when altered to avoid meeting the definition of a firearm. Also, the U.S. Federal Court recently held that publicly sharing designs or blueprints for making such weapons is considered free speech and does not violate existing laws.

EXPLOSIVES

Homemade combustibles and exploding targets are referred to as “improvised explosive devices” by the Texas Bomb-Making Materials Awareness Program, which defines them as “completed or operational bomb[s] designed to cause serious bodily injury, death or substantial property damage [and] fabricated in an improvised manner using non-military components.” However, as with gun kits, Texas does not consider the legal purchase of these unassembled components to fall within this definition. Nor does Texas consider an exploding target sold in kit form to be an “improvised explosive device.”

AIR GUNS

Air guns also fall within the loophole of unregulated weapons because, under federal law, “no state shall prohibit the sale (except to minors) of traditional BB, paintball or pellet-firing air guns that project the force of air pressure.” 15 U.S.C. 5001(g)(ii). However, air guns have evolved to be far more complex and powerful, and are the preferred weapons for some big-game hunters. Also, such guns may be legally fitted with sound suppressors, (a.k.a. silencers), which are prohibited for use on regulated firearms.

DEADLY WEAPONS

Although there is a lack of regulation for many weapons, some may be regulated indirectly. A person commits a crime if he or she uses a weapon or item in such a way that it would be considered a deadly weapon. In Allen v. State, No. B14-91- 00890-CR, 1992 WL 352984 (Tex. App.—Houston [14th Dist.] Dec. 3, 1992, no pet.) (mem. op.), the Fourteenth Court of Appeals held that there was sufficient evidence for a jury to determine a crossbow used to commit a homicide was a deadly weapon. A deadly weapon can be anything manifestly designed, made, or adapted for inflicting death or serious bodily injury, or anything that in the manner of its use or intended use can cause death or serious bodily injury. So, anything—including the weapons listed above, a slingshot, darts, tomahawk, or just a good ol’ cast-iron skillet —may be considered a deadly weapon, thus subjecting the user to criminal prosecution. AL

Sharesa Y. Alexander is a senior associate with O’Hanlon, Demerath & Castillo, where she serves as general counsel to multiple school districts, businesses, and municipalities.

Nikki G. Maples, of the Law Office of Nikki G. Maples, practices family law with a focus on complex property division of marital estates and custody disputes.