turbodog
Regular Member
imported post
I've moved my whole post over here as I feel it deserves it's own commentary and it has little to do with the original topic (Walmart) it was posted under...
crewdawg wrote:
Ok, this ordinance happens to be one near and dear to my heart as well as near to where I live.
The ordinance states:
Section 11-4017. Unlawful possession of weapons. (a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile, to carry or use on or about his person or have in his manual possession, either secretly or openly, whether concealed or otherwise, any arms or weapons of any kind, or any shotgun, rifle, pistol, revolver, air-gun, "B-B gun," gas operated gun or spring gun, or any instrument, toy or weapon commonly known as a "peashooter," "slingshot," or "beany," or any bow made for the purpose of throwing or projecting missiles of any kind by any means whatsoever, or any dirk, bowie knife, clasp knife, razor, metallic knuckles, slingshot, billy or any other weapon, whether the instrument is called by any name set forth above or by any other name, other than the ordinary or common penknife or pocket knife.
This was written in 1965 so no one doubts it's validity as applied to concealed carry.
As to open carry, it says: (a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile, to carry or use on or about his person or have in his manual possession, either secretly or openly....any arms or weapons of any kind...pistol, revolver..
No OC either, BUT, is that valid?
Now we happen to have an opinion by the State Attorney General that says, in part:
Office of the Attorney General
State of LOUISIANA
Opinion No. 78-795
June 19, 1978
FIREARMS & FIREWORKS 47-A R.S. 14:95.1, 40:1379.1 Acts 1956, No. 345, s 1,
1958, No. 2 1958, No. 379, ss 1, 3, 1968, No. 647, s 1, 1975, No. 492
The carrying of an exposed handgun is not illegal, except as provided in LSA-
R.S. 14:94.1. Parishes and/or Municipalities may not enact ordinances
regulating the carrying of illegal handguns because the state has pre-empted
the legistlative control and has implicitly authorized the carrying of
unconcealed weapons.
Honorable James H. Brown, Jr.
State Senator
32nd District
Baton Rouge, LOUISIANA 70804
Dear Senator Brown:
Your request for an opinion of the Attorney General has been forwarded to the
undersigned for disposition. Your questions, as I appreciate them, are:
1. Is it legal to carry an exposed handgun?
2. Do Parishes and/or Municipalities have the power to regulate the
carrying of exposed handguns?
LSA-R.S. 14:95 provides as follows:
Information about the particular law omitted by myself in the interest of brevity.
Readers can look it up themselves if they want the whole thing.
So, his answer to the Senator's first question - 1. Is it legal to carry an exposed handgun? - was:
If the weapon is carried in a manner that reveals its identity, its carrier
cannot be presumed to have intended to conceal it and, accordingly, is not in
violation of the statute ...... The appropriate test to be applied in
prosecutions for illegal carrying of weapons is whether, under the facts and
circumstances of the case as disclosed by the evidence, the manner in which
defendant carried the weapon revealed an intent to conceal its identity.'
Therefore, the carrying of an exposed handgun is not illegal, except as
provided in LSA-R.S. 14:95.1.
The answer to his second question - 2. Do Parishes and/or Municipalities have the power to regulate the carrying of exposed handguns?- was:
In answer to your second question it can be analogized that when the State
provides that it is unlawful for a person to carry a concealed weapon, LSA-R.S.
14:95 A (1), unless they hold a bonafide law enforcement commission, R.S.
14:95(F) or possess a concealed handgun permit, R.S. 40:1379.1, it is
equivalent to stating that it is lawful to carry an exposed weapon (firearm).
In City of Shreveport V. Curry and City of Shreveport V. Bukhett, 357 S.2d
1078, (LA. 1978) which held that a city ordinance proscribing frog gigging out
of season was unconstitutional as not being a reasonable exercise of Police
Power and as such a violation of the defendant's right to due process; the
Court stated in dicta that '. . . a municipal ordinance which goes further in
its prohibitions than a state statute is valid so long as it does not forbid
what the state legislature has expressly or implicitly authorized . . .'
It is the opinion of this office that the state statutes aforementioned have
the purpose of establishing a general scheme to control weapons (handguns) and
that a fair reading of those statutes show this would constitute an area in
which the state has pre-empted the legislative control and has implicitly
authorized the carrying of unconcealed weapons.
Therefore, an ordinance enacted by a Parish and/or Municipality requlating
the carrying of exposed handguns would be without effect as being in conflict
with State Law.
We hope this opinion has adequately answered your questions. If we may be of
any further assistance in this or any other matter, please do not hesitate to
call upon us.
With kind regards, I am
Sincerely
William J. Guste, Jr.
Attorney General
This Attorney Generals Opinion is 30 years old and includes nothing about the shall-issue statutes (R.S. 14:95.3) that came into effect long after this opinion was written. Also, an AG opinion has no weight of law behind it. The Tangipahoa DA may give it due consideration, but by that time you've been arrested and arraigned.
To throw a further item in for you to chew on, there is the State's Firearms-free zone law, which states, in part:
C. The provisions of this Section shall not apply to:
(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.
Hmm..now Amite's ordinance says:
(a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile....to carry or use on or about his person or have in his manual possession, either secretly or openly, whether concealed or otherwise, any arms or weapons of any kind.
Now, if the state claims that having a firearm in ones car is a "constitutionally protected activity", how can Amite City have an ordinance that allows the possession of a firearm, only "within his own domicile"?
So, gentle readers, is Amite City's "Unlawful possesion of weapons" ordinance of 1965 in direct contravention of the Louisiana State Constitution? And to rephrase Crewdawgs question, can this be challenged short of arrest and posible trial?
Inquiring minds want to know.
I've moved my whole post over here as I feel it deserves it's own commentary and it has little to do with the original topic (Walmart) it was posted under...
crewdawg wrote:
Excellent question! I don't have an answer that doesn't involve getting arrested, but still an excellent question!This really sucks as I LIVE in Amite! And this is the first I've heard about this law. How would one go about getting this changed and more in line with state law? (Without OCing and being arrested of course)
Ok, this ordinance happens to be one near and dear to my heart as well as near to where I live.
The ordinance states:
Section 11-4017. Unlawful possession of weapons. (a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile, to carry or use on or about his person or have in his manual possession, either secretly or openly, whether concealed or otherwise, any arms or weapons of any kind, or any shotgun, rifle, pistol, revolver, air-gun, "B-B gun," gas operated gun or spring gun, or any instrument, toy or weapon commonly known as a "peashooter," "slingshot," or "beany," or any bow made for the purpose of throwing or projecting missiles of any kind by any means whatsoever, or any dirk, bowie knife, clasp knife, razor, metallic knuckles, slingshot, billy or any other weapon, whether the instrument is called by any name set forth above or by any other name, other than the ordinary or common penknife or pocket knife.
This was written in 1965 so no one doubts it's validity as applied to concealed carry.
As to open carry, it says: (a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile, to carry or use on or about his person or have in his manual possession, either secretly or openly....any arms or weapons of any kind...pistol, revolver..
No OC either, BUT, is that valid?
Now we happen to have an opinion by the State Attorney General that says, in part:
Office of the Attorney General
State of LOUISIANA
Opinion No. 78-795
June 19, 1978
FIREARMS & FIREWORKS 47-A R.S. 14:95.1, 40:1379.1 Acts 1956, No. 345, s 1,
1958, No. 2 1958, No. 379, ss 1, 3, 1968, No. 647, s 1, 1975, No. 492
The carrying of an exposed handgun is not illegal, except as provided in LSA-
R.S. 14:94.1. Parishes and/or Municipalities may not enact ordinances
regulating the carrying of illegal handguns because the state has pre-empted
the legistlative control and has implicitly authorized the carrying of
unconcealed weapons.
Honorable James H. Brown, Jr.
State Senator
32nd District
Baton Rouge, LOUISIANA 70804
Dear Senator Brown:
Your request for an opinion of the Attorney General has been forwarded to the
undersigned for disposition. Your questions, as I appreciate them, are:
1. Is it legal to carry an exposed handgun?
2. Do Parishes and/or Municipalities have the power to regulate the
carrying of exposed handguns?
LSA-R.S. 14:95 provides as follows:
Information about the particular law omitted by myself in the interest of brevity.
Readers can look it up themselves if they want the whole thing.
So, his answer to the Senator's first question - 1. Is it legal to carry an exposed handgun? - was:
If the weapon is carried in a manner that reveals its identity, its carrier
cannot be presumed to have intended to conceal it and, accordingly, is not in
violation of the statute ...... The appropriate test to be applied in
prosecutions for illegal carrying of weapons is whether, under the facts and
circumstances of the case as disclosed by the evidence, the manner in which
defendant carried the weapon revealed an intent to conceal its identity.'
Therefore, the carrying of an exposed handgun is not illegal, except as
provided in LSA-R.S. 14:95.1.
The answer to his second question - 2. Do Parishes and/or Municipalities have the power to regulate the carrying of exposed handguns?- was:
In answer to your second question it can be analogized that when the State
provides that it is unlawful for a person to carry a concealed weapon, LSA-R.S.
14:95 A (1), unless they hold a bonafide law enforcement commission, R.S.
14:95(F) or possess a concealed handgun permit, R.S. 40:1379.1, it is
equivalent to stating that it is lawful to carry an exposed weapon (firearm).
In City of Shreveport V. Curry and City of Shreveport V. Bukhett, 357 S.2d
1078, (LA. 1978) which held that a city ordinance proscribing frog gigging out
of season was unconstitutional as not being a reasonable exercise of Police
Power and as such a violation of the defendant's right to due process; the
Court stated in dicta that '. . . a municipal ordinance which goes further in
its prohibitions than a state statute is valid so long as it does not forbid
what the state legislature has expressly or implicitly authorized . . .'
It is the opinion of this office that the state statutes aforementioned have
the purpose of establishing a general scheme to control weapons (handguns) and
that a fair reading of those statutes show this would constitute an area in
which the state has pre-empted the legislative control and has implicitly
authorized the carrying of unconcealed weapons.
Therefore, an ordinance enacted by a Parish and/or Municipality requlating
the carrying of exposed handguns would be without effect as being in conflict
with State Law.
We hope this opinion has adequately answered your questions. If we may be of
any further assistance in this or any other matter, please do not hesitate to
call upon us.
With kind regards, I am
Sincerely
William J. Guste, Jr.
Attorney General
This Attorney Generals Opinion is 30 years old and includes nothing about the shall-issue statutes (R.S. 14:95.3) that came into effect long after this opinion was written. Also, an AG opinion has no weight of law behind it. The Tangipahoa DA may give it due consideration, but by that time you've been arrested and arraigned.
To throw a further item in for you to chew on, there is the State's Firearms-free zone law, which states, in part:
C. The provisions of this Section shall not apply to:
(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.
Hmm..now Amite's ordinance says:
(a)Except as hereinafter provided, it shall be unlawful for any person, except within his own domicile....to carry or use on or about his person or have in his manual possession, either secretly or openly, whether concealed or otherwise, any arms or weapons of any kind.
Now, if the state claims that having a firearm in ones car is a "constitutionally protected activity", how can Amite City have an ordinance that allows the possession of a firearm, only "within his own domicile"?
So, gentle readers, is Amite City's "Unlawful possesion of weapons" ordinance of 1965 in direct contravention of the Louisiana State Constitution? And to rephrase Crewdawgs question, can this be challenged short of arrest and posible trial?
Inquiring minds want to know.