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No, Whataburger is not defying Texas open carry laws

No, Whataburger is not defying Texas open carry laws

They’re simply opting out

Beloved fast food chain of the South, Whataburger, recently found itself in national headlines after announcing their decision not to participate in Texas’ newly minted open carry law.

Full disclosure before we move forward, I love Whataburger. Love. Love. Love. In fact, I had a #1 with cheese, no veggies, and mayo for lunch/dinner today.


But love of hot, crispy fries, and breakfast taquitos at midnight aside, Whataburger is being portrayed inaccurately.

Drawing fire from many, even factions on the right, Whataburger was accused of “taking a stand” against a law near and dear to the hearts of many Texans.

Yahoo News reported:

Whataburger takes stand against Texas’ new open carry law

An iconic Texas restaurant chain will not allow the open carrying of guns on its properties, and industry experts say other restaurants will likely take the same stand against a new state law legalizing the practice in many public places.

Whataburger — with some 780 locations in 10 states — has drawn a mix of praise and rebuke since making the announcement this month, including a prediction of boycotts from one of the state’s leading advocates for gun rights.

Boycott? Porquoi?

Preston Atkinson, Whataburger’s President and CEO wrote an open letter addressing the issue. Atkinson wrote:

There’s been a lot of talk the past couple weeks about Whataburger’s open carry policy, and I wanted to reach out to personally explain our position.

Whataburger supports customers’ Second Amendment rights and we respect your group’s position, but we haven’t allowed the open carry of firearms in our restaurants for a long time (although we have not prohibited licensed conceal carry). It’s a business decision we made a long time ago and have stood by, and I think it’s important you know why.

But first, as a representative of Whataburger, I want you to know we proudly serve the gun rights community. I personally enjoy hunting and also have my concealed carry license, as do others at Whataburger.

From a business standpoint, though, we have to think about how open carry impacts our 34,000+ employees and millions of customers. We serve customers from all walks of life at more than 780 locations, 24 hours a day, in 10 states and we’re known for a family friendly atmosphere that customers have come to expect from us. We’re the gathering spot for Little League teams, church groups and high school kids after football games.

We’ve had many customers and employees tell us they’re uncomfortable being around someone with a visible firearm who is not a member of law enforcement, and as a business, we have to listen and value that feedback in the same way we value yours. We have a responsibility to make sure everyone who walks into our restaurants feels comfortable. For that reason, we don’t restrict licensed concealed carry but do ask customers not to open carry in our restaurants.

As a company serving customers with many different viewpoints, we’re sometimes caught in the middle on controversial issues like this one. We hope you and your members, along with our other friends in the gun rights community, understand our position and will continue to visit us. We appreciate your business. Thank you.

As a gun enthusiast and second amendment-lover, this position strikes me as perfectly reasonable. Particularly when the bill enacted in Texas enables private businesses to prohibit open carry at their discretion.

Section 44 reads:

Chapter 30, Penal Code, is amended by adding Section 30.07 to read as follows:
(a) A license holder commits an offense if the license holder:
(1) openly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder openly carrying a handgun was forbidden; or
(B) remaining on the property while openly carrying a handgun was forbidden and failed to depart.
(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
(c) In this section:
(1) “Entry” has the meaning assigned by Section 30.05(b).
(2) “License holder” has the meaning assigned by Section 46.035(f).
(3) “Written communication” means:
(A) a card or other document on which is written language identical to the following: “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly”; or
(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English and Spanish;
(ii) appears in contrasting colors with block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.

As a private business perfectly within their rights to do so, Whataburger decided it most advantageous to continue to allow concealed carry, but not open carry. Doing so is perfectly within the realm of Texas’ new law and is not “bucking” “standing against” “denying” or any other negative descriptor.

If there must be a conversation over Whataburger’s choice then by all means, fire away. But let’s ensure the law at the center of the debate is understood.

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It’s a silly decision–bad guys don’t “open carry,” they just rob you–but maybe they have many silly customers.

Their property, their rules. Others can decide for themselves whether they choose to withhold their business.

Personally, I strongly support open carry as sound public policy, but don’t myself partake. I prefer to look utterly harmless until loud noises are otherwise unavoidable. 🙂

It seems worth noting, however, that civilians who open-carry in holsters have a better safety record with those sidearms than do police officers who do the same.

Just saying. 🙂

–Andrew, @LawSelfDefense

    rinardman in reply to Andrew Branca. | July 15, 2015 at 10:44 pm

    …but maybe they have many silly customers.


    Full disclosure before we move forward, I love Whataburger. Love. Love. Love.


    Pettifogger in reply to Andrew Branca. | July 16, 2015 at 10:47 am

    “Bad guys don’t ‘open carry.'”

    I am a native Texan and a holder of a Texas CHL. I carry almost everywhere I legally can (I do not carry into other people’s homes, seeing that as a breach of etiquette).

    Bad guys certainly do not openly carry in Texas now. I am glad open carry passed in Texas, but I wonder whether the bad guys might start carrying openly, at least the ones who can get a license, when the new law becomes effective (January 1, 2016). I do not know the experience of other states.

I think the real story here is that this is not a new development, no matter how much the MSM and the anti-gun lobby try to portray it as such.

Public, press fall for Moms Demand Action misdirection on Whataburger and guns

“Whataburger supports customers’ Second Amendment rights and we respect your group’s position, but we haven’t allowed the open carry of firearms in our restaurants for a long time (although we have not prohibited licensed conceal carry). It’s a business decision we made a long time ago”

So. This is not even a new thing. Why all the flurry of reports suddenly, making out like it’s a new thing? And like it’s some huge “win” by the anti-gun Left?

It’s more like JournoList 2.0 pushing the latest “Moms Demand Action” propaganda.

Friends from some of the other 45 states that already allow Open Carry, where there are Whataburgers, tell me they Open Carry and it has not been an issue-including Oklahoma, which just approved it.

So is this now going t/b restricted in those states, or just in Texas where the Yankee escapees are afraid of seeing guns carried by citizens exercising their 2A rights?

I for one know there are lots of other burger joints with very good burgers that will allow free exercise of 2A rights, especially in the 9 month Texas summer.

Every business has the right to allow or disallow firearms (open or concealed) if they choose. I just wish they would stop pandering to the ignorant and the hysterical. If we all marginalized them, maybe they’d shut the hell up.

    Bloomberg and that “Moms” group get way too much attention and media space for the relatively small number of people they actually represent. The problem is, while only a minority of real people actually support them, nearly 100% of the media class do. So they get a free megaphone. Meanwhile, the NRA has something like 5 million actual, active, paid-up members, and tens of millions of other supporters — but we’re given the “fringe minority” treatment that rightly should be given to the Bloombergian astroturfers, because the bed-wetting media are freaked out by us.

    Yujin in reply to Sanddog. | July 16, 2015 at 11:53 am

    Every business has the right to bake or not bake gay wedding cakes.

    Oh, wait…

The people getting their panties in a wad about Whataburger need to relax and enjoy a #5. The law doesn’t even take effect until the first of the year.

so no they are not “defying” the law … you must be a lawyer or training to be one with that parsing of what they did …

they knuckled under to a small percentage of chicken shit supposed “customers” … and banned open carry in their stores …

next you’ll be telling us the meaning of is is …

“…proudly serve the gun rights community. I personally enjoy hunting”

Does he think the 2nd Amendment is about hunting?

    “I personally enjoy hunting and also have my concealed carry license, as do others at Whataburger.”

    If you had finished reading the entire sentence…

      tom swift in reply to Amy in FL. | July 16, 2015 at 7:49 am

      Unfortunately, those statements are basically meaningless, as they’re now anti-gun boilerplate.

      Antis often throw in something about how they themselves are gun owners, blah blah, but are nevertheless in favor of “reasonable” gun control laws. This they think is better propaganda than the blatant claim that they’re shrieking gun-prohibition zealots who think that outright confiscation is “reasonable”.

        Are you so sure that every business owner who welcomes concealed carry, but not open carry, on their premises, is “anti-gun”?

        Maybe they just want to avoid the drama-Queen showboating of the likes of C.J. Grisham and other obnoxious activists for the first few months that open carry goes into effect. Maybe they’re just realists and accepting of the fact that once open carry goes into effect, for the first few months anti-gunners will be stalking their establishment and ringing 911 (plus the media of course) every time they see someone walk in with an AR-15 slung over their shoulder. Maybe they just want to avoid the drama and focus on their core business instead of becoming a political hotspot.

        Unless you have some evidence that the management of Whataburger are “shrieking gun-prohibition zealots who think that outright confiscation is “reasonable””, maybe you should just calm down a little and wait to see how this plays out.

        We still don’t have open carry here in Florida. I’m still going to go into Whataburger tomorrow for my Friday bacon-avocado burger, secure in the knowledge of my safety in that I know they’re cool with concealed carry. Have to leave the Bushmaster in the car for now? Meh.

          tom swift in reply to Amy in FL. | July 16, 2015 at 11:32 am

          Really, you should learn how to read. English presents some difficulties for some people, but you should put some effort into it.

          Maybe they just want to avoid the drama-Queen showboating of the likes of C.J. Grisham and other obnoxious activists for the first few months that open carry goes into effect.

          OF COURSE they do! D’uh!

          Unless you have some evidence that the management of Whataburger are “shrieking gun-prohibition zealots who think that outright confiscation is “reasonable””,

          I said no such thing. As you would realize if you knew how to read.

          If what you wrote wasn’t what you meant to write, you should have written it differently.

        Phillep Harding in reply to tom swift. | July 16, 2015 at 5:04 pm

        Agreed. Can’t count the times someone who is obviously anti gun has claimed to be conservative, a life member in the NRA, gun lover, etc, etc, etc.

        Then he repeats the latest anti firearm blather. Usually word for word.

The question now is, which will occur first: Hillary Clinton being replaced as the democRat candidate, or this dump going out of business?

    For you to dismiss the 750+ Whataburgers in operation as “dumps”, I’m guessing that you’re not a regular Whataburger customer they need to be concerned about losing anyway.

MouseTheLuckyDog | July 16, 2015 at 1:37 am

I think a lot depends on the answer to two questions.

The first is, how will they react to accidental open carry? I mean something like the guy in Florida who wore a tee shirt which showed off some tamache. ( Or was it low hanging pants? ) He just got his CCP and was showing a little of the gun. Result being the cops stopped him.

The second is what is their policy in states where only Open Carry is legal? Allow Open carry or ban guns all together.

    FrankNatoli in reply to MouseTheLuckyDog. | July 16, 2015 at 9:03 am

    When I went through my FL concealed carry class, the instructor was quite emphatic about keeping the weapon concealed, no exceptions, no sorry, no do-overs.

      While you should make every effort to keep your concealed weapon concealed, you’re not going to get arrested for accidental printing or an incidental slip that momentarily reveals your weapon.

      790.10 Improper exhibition of dangerous weapons or firearms.–If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      “If the wind blew open a man’s jacket and exposed a gun and someone reported it the man would not be doing anything illegal.”

      Use some common sense, and you’ll be fine.

        Vancomycin in reply to Amy in FL. | July 16, 2015 at 9:58 am

        Except that the reason, from what I’ve heard from my Texan friends, that the open carry law was passed in Texas was that people *were* being arrested for minor printing.

          Sorry – that was the Florida statute I listed, since Frank & I are both in Florida, and Frank was specifically speaking about his Florida CCL instructor’s warning. I don’t know what all goes on in Texas.

        FrankNatoli in reply to Amy in FL. | July 16, 2015 at 11:09 am

        The example the instructor gave was: you’re wearing a sports coat, you have a pistol in a belt holster, you go to pay a bill at a register, you sweep your coat back to reach your wallet, exposing your pistol. That is a violation.

          No, it’s not. Not here in Florida, and especially not since they clarified the law in 2011.

          The quote I used above, about the sports coat, was from the Public Information Officer of the St. Augustine Police Department. I posed a similar question to my local Sheriff, about someone accidentally getting a glance into the interior side “holster” pocket of my purse where I often carry my weapon, and got a similar answer.

          If you’re not deliberately brandishing your weapon “in a rude, careless, angry, or threatening manner”, if it was clearly an accidental exposure, you’ll be fine.

Doing so is perfectly within the realm of Texas’ new law and is not “bucking” “standing against” “denying” or any other negative descriptor.

Whataburger is “denying.” They’re denying Texas citizens (who have concealed carry permits, authorizing them to carry openly) the exercise of their own personal judgment concerning their method of carrying firearms, personal judgment that the State has already deemed them capable of making (generally speaking) with regard to public places.

Laws like this only contribute to the minefield that armed, law-abiding citizen must navigate in public; laws that serve only one purpose – to punish those citizens when they screw up (in a manner that generally has no effect on public safety). They have no measurable effect on the criminal element.

    Pettifogger in reply to DaveGinOly. | July 16, 2015 at 12:41 pm

    Not so. The law allowing property owners to exclude weapons is a simple manifestation of respect for property rights, something I am strongly in favor of. If you don’t like it that a property owner excludes weapons, take your business elsewhere, something else that I am strongly in favor of.

      DaveGinOly in reply to Pettifogger. | July 16, 2015 at 1:49 pm

      The fact that the law permits it doesn’t change the fact that the business elected to take the option to deny something to their patrons. The law allows businesses to show their true colors for all to see, rather than imposing acceptance of open carry on businesses that gun folk might really not want to patronize, but can’t know it because the law doesn’t permit those businesses to expose themselves as unfriendly to at least some gun rights.

      And no, I don’t think businesses should be allowed to conduct such discrimination. The fact that the state found it necessary to carve out a statutory exemption for them to do so should be an indication that otherwise a business wouldn’t be able to so discriminate. Businesses are not “private,” they are entities whose existence is licensed by the state, and as such they are bound by the rules set by the state. (In contradistinction to the rights of the business owners as private citizens to discriminate in their private lives as they see fit. But as business owners, people are patronizing the business; they are not dealing with the owner in his capacity as a private citizen.) If they are “open” for business, that means exactly that, they are open to the public they are licensed to serve. If you don’t want to serve everyone (legally gun-toting Irish gay Muslims), then don’t ask the state for permission to conduct business. If the state carved out an exception in its business rules that allowed them to keep Muslims in traditional garb out of their establishments (because they frighten the patrons), can you imagine the howl and uproar? But it’s OK to treat gun owners differently, and some gun owners are foolish enough to think the prohibition reasonable and acceptable. If every gun owner and supporter of the 2nd Amendment could make law their personally “reasonable” limits to firearms ownership, there’d be no need for the existence of any anti-gun organizations.

Subotai Bahadur | July 16, 2015 at 2:41 am

One question. Do Whataburger stores in Texas have the signs as described posted at each entrance to the store? If they do, then they are in compliance with the law and can bar open carry. They are also giving due notice to those who wish not to patronize a such a business.

Sounds fair to me. Let the market decide. If they lose a critical amount of business because of their stand, they will either reconsider, or go out of business. If there is no loss of business, then let Whataburger go about its business.

    Do Whataburger stores in Texas have the signs as described posted at each entrance to the store?

    Open carry isn’t even legal in Texas yet, and won’t be till next year.

    We have a lot of premature triumphalism on the part of the Left; and a lot of premature knee-jerk dummy-spitting on the part of the Right. All for something that is simply maintaining the status quo for the time being.

    Bloomberg is bankrolling the whole sudden media beatup. And he’s laughing. This is exactly the reaction — from both sides — he was going for.

      Immolate in reply to Amy in FL. | July 16, 2015 at 2:28 pm

      You don’t, however, have to wait until 1/1/2016 to boycott Whataburger, should you deem that appropriate. Fire at will.

Completely agree. If you truly respect the Constitution and your 2nd Amendment rights, you have to also respect others’ private property rights AND their compliance with the law.

And for pete’s sake, just take the 30 seconds (or less), drop the holster, go IWB, enjoy the damn (awesome) burger and fries, and celebrate your good fortune to live in a state with open carry AND Whataburgers. There are others of us who should be so lucky.

    Milhouse in reply to gulfbreeze. | July 16, 2015 at 8:21 am

    Drop the holster where? Do they provide a secure gun-check service? If not, then they are telling anyone who is carrying without concealment that they don’t want his business.

    DaveGinOly in reply to gulfbreeze. | July 16, 2015 at 2:27 pm

    I’m all for the protection of private property rights. But this is not about “private property rights”; businesses are not “private,” they’re state created/licensed entities. When such an entity is created to serve the public by providing goods and services it can’t discriminate against potential patrons except as authorized by the state, its licensor. When Whataburger bars open carry from its establishments, it is not exercising a right, nor is the state recognizing “property rights” by carving out the exception. The exception is a privilege extended by the state to the business, just as a business’s existence is privilege extended by the state. The owners of Whataburgers have a right to keep anyone they please off the private property they own as private citizens. But their Whataburger joints exist and conduct their business strictly as state-privileged and licensed entities. They are not “private” in the same sense that the word is used in the term “private property rights.” The latter refers to rights of the people, the former refers to what are actually state-granted privileges.

      Shane in reply to DaveGinOly. | July 16, 2015 at 2:59 pm

      If you are all for private property rights then you would understand that busisness’ are private property and not public property. Just because a group of people gets together to open a place to sell things to other people doesn’t mean that they have become part of the government, even if the government insists on granting them this alleged right.

      If you think you are conservative … rethink that position .. you are not.

        Phillep Harding in reply to Shane. | July 16, 2015 at 5:18 pm

        Uhm, maybe “no”.

        There is “private property”, “public property”, and “public area on private property”.

        The best example of the last is a sidewalk leading to the front door of a house.

        A corollary for the last is that a police officer can observe from that sidewalk without needing a search warrant.

        The area where the public eats is such a “public area”, and the kitchen is no such thing.

          Really … the side walk leading up to my house. That is laughable. If I put a fence on exactly the property line then is the sidewalk to my house still public … answer NO. The sidewalk is still mine to dispose of as I please whether I let you use it or not. The lengths that people go through to justify taking other peoples property astounds me.

        Phillep Harding in reply to Shane. | July 17, 2015 at 5:09 pm

        Shane, laws are seldom simple things. Putting a locked gate across the sidewalk to the house usually changes what sort of property the sidewalk to the front door is. An open gate, or a fence that has an opening where a gate would usually go usually makes that sidewalk to the door a place where trespass is allowable, until the trespasser is told to get out. The lawn is not an allowable trespass area, usually. (Local laws and court rulings vary all over the place. You have to look up local laws.)

        Again and again: “Check local laws.”

Richard Aubrey | July 16, 2015 at 7:48 am

As Mouse said, open carry protects the concealed carry guy who inadvertently prints. The cop with the painful sphincter issue who wants to arrest somebody just because won’t have a leg to stand on.
Additionally, there will be fewer hysterics calling 911 with “HE’S GOT A GUN, HE’S GOT A GUN!!”, and leading responding officers to think they’re approaching the Okay Corral.

Whataburger’s statement says essentially nothing. Were Atkinson a government bureaucrat, he’d probably be up for a bonus for writing 300+ words which say nothing at all.

As we can see from the statute helpfully appended above, in order to be in violation, the carrier must be verbally informed by somebody so authorized that he’s not allowed on the property—e.g. someone wearing a hat saying “Whataburger” on it says “you can’t bring that thing in here”; or the establishment has to have bilingual signs saying the same thing posted by the doors. Until either of those happens, there’s little for either pros or antis to get excited about.

Boycott pourquoi? Parce if someone happens to be carrying without any means of concealment, and is looking for somewhere to eat, Whataburger is telling him they don’t want his money. So naturally he’ll go spend his money somewhere else.

Unless they provide a gun-check, or little paper aprons to drape over your holster.

I used to live in Texas, I miss Whataburger’s grub. I’ve lived in Minnesota since 2006 and open carry (with a permit) has been the law here since I’ve been here. In that time, I can count on one hand the number of people I’ve seen open carry in public outside of an organized “open carry event.”

Both sides are overreacting. The best purpose of open carry is like noted above, to keep you out of trouble if a strong wind blows your cover garment open or you print. A handful of people will open carry to prove a point, and while I would imagine the percentage will be higher in Texas, it will still be a single digit fraction of the licensed community.

FrankNatoli | July 16, 2015 at 8:56 am

The reasoning of a law abiding open carry fellow as he pauses at a Whataburger: I do not wish to be defenseless inside that establishment. I will instead take my business to the next door Carl’s Jr.

The reasoning of someone intent on killing as many innocent people as quickly as possible as he pauses at a Whataburger: I like this place, looks safe from my perspective.

    We don’t have open carry at all in Florida. We do have over a million concealed carriers. Whataburger makes it clear that we — and our lawful concealed weapons — are welcome. We have never had a mass shooting at a Whataburger.

    Neither, to the best of my knowledge, has Texas, where no-one thus far has been allowed to open carry a handgun in a Whataburger for the past 60 or so years that it’s been in existence. But suddenly, next year, when the rules there stay exactly as they are today, you won’t feel “safe”?

    Casey in reply to FrankNatoli. | July 16, 2015 at 9:24 am

    They haven’t prohibited concealed carry, just open. Mmmmkay? AFAIK you can still wear a concealed weapon and enjoy your burger at the same time.

They better not open a store in Tel Aviv that will deny soldiers, with their Assault weapons, entry. That will truly upset the locals.
On top of it they openly display two magazines taped together for a quick change.
How mundane life becomes.

“Drop the holster where? Do they provide a secure gun-check service?”

Well if Whataburgers mean that much to someone, then the solution must be carrying a (man)purse everywhere one walks on the off chance one needs to swap out holster for IWB when just seeing a Whataburger sign engages salivating burger lust. I’ve never carried a manpurse, but if I had open carry and Whataburger and no car in my neck of the woods, I’d probably be willing to do it.

Which brings up the next point, since my recent trip to Texas I forgot that the vast majority of people in that great republic had forgone driving anywhere, and instead were walking and taking the abundant mass transportation systems. Gone were my memories of my time in Texas in the ’70s when the preferred mode of transport was a 4-wheel drive for off-roading (defined as “this traffic is WAY to slow, and there ain’t a fence between me and that other road, so we’re making a new road”. (Which as a teenager was the most awesome thing ever.) So I can understand the current dilemma you pose. Throngs of open-carrying, pedestrian Texans without cars anymore to stuff an IWB in the glovebox and leave the holsters in when walking to Whataburgers. Oh the humanity.

“…then they are telling anyone who is carrying without concealment that they don’t want his business.”

Exactly. That’s called FREEDOM. Isn’t it great? Kind of uncomfortable, isn’t it? Especially at first…living where people can make choices in their own interest. But just think, someday you’ll be able to tell your grandkids that for one moment in time, before we were all absorbed into the Grand Kollectiv, individuals and businesses could make things called “choices”.

Enjoy them while you can.

Exactly. That’s called FREEDOM. Isn’t it great? Kind of uncomfortable, isn’t it?

huh, You’re right…it’d be great if a business could say “hey, I don’t want to bake your stupid cake.”, oh…wait, they can’t.

I like the idea of businesses being able to set the rules for their business. That said, I’d decline to frequent any business that prohibits open or concealed carry. I don’t care to suffer the company of fools.

That said, I don’t carry either way and in fact don’t own a gun. My wife can be a bit emotional and I don’t want to tempt her to ventilate my hide.