The basis of Open Carry - The LAW

[rickward]

I agree

But what it does do is make a court battle more likely... making Mississippians even more "gun shy" about carrying opencly even with a concealed permit.

Many people will choose to get a permit for fear of their shirt coming up and being arrested. NEED TO TALK TO OUR LEGISLATORS!!!!

 

[Daylen]

Many people will choose to get a permit for fear of their shirt coming up and being arrested. NEED TO TALK TO OUR LEGISLATORS!!!!

That is an exercise in futility unless we become far more organized and far larger. If you're not a member of NRA, GOA, 2nd A foundation or another large similar organization joining one would be helpful; as it would make the case more compelling for such an organization to spend resources helping local members.

 

[FedFirefighter]

This says you are REQUIRED to completely cover it (not in whole or in part). Not saying I agree, just being the messenger.

Obviously, this guy doesn't like OC, and is in a position of authority. That doesn't make him correct. I was talking about our right to bear arms, guaranteed by our state constitution, and the law that says one cannot conceal in whole or in part without a permit. I have a permit, so... If I'm ignorant to something, please let me know. I will continue to OC around Hattiesburg about 50% of the time, as I do now.

 

[rickward]

Your comment doesn"t make sense to me

Obviously, this guy doesn't like OC, and is in a position of authority. That doesn't make him correct. I was talking about our right to bear arms, guaranteed by our state constitution, and the law that says one cannot conceal in whole or in part without a permit. I have a permit, so... If I'm ignorant to something, please let me know. I will continue to OC around Hattiesburg about 50% of the time, as I do now.

Not sure which guy you are talking about. If it is me, you are dead wrong. I am much in favor of OC. I am just being the messenger delivering this Attorney General Opinion. If the guy you are talking about is Jimmy Dale or Jim Hood, you are talking about the Attorney General and his assistant. I don't know if they have a personal opinion on open carry or not, but they are supposedly giving their opinion of the law. I know everybody has opinions and every thing else, but legal opinions from the Attorney General hold water until struck down by a court. If you say you will continue to carry around Hattiesburg, you must not understand the meaning and weight of this opinion. If you were ignorant about it before, you shouldn't be after reading the opinion. If you continue as you have before, you may very well become our test case needed to have the courts rule on the opinion and the law. Good luck!

 

[rickward]

FED FIREFIGHTER PLEASE READ - If you are ignorant, this is where it is....Sorry.

You need to read paragraph 18 of the Mississippi Code, section 45-9-101 below. It is the statue that allows you a permit:

(18) Nothing in this section shall be construed to require or allow the registration, documentation or providing of serial numbers with regard to any stun gun or firearm. Further, nothing in this section shall be construed to allow the open and unconcealed carrying of any stun gun or a deadly weapon as described in Section 97-37-1, Mississippi Code of 1972.


You also need to read the Mississippi Constitution granting the legislature the right to regulate concealed weapons:

“The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”

The Attorney General is saying you have to carry it completely concealed because the statue that gives you authority to carry it requires that it be concealed and not openly carried. He is also saying the the other section (97-37-1) is the one that defines concealed as "in whole of in part," but that it does not apply to those required to be concealed by the other statutue.

I do not agree with this and it has to be fixed with legislative action and as another responder said, it will take organizations with power to get involved. We can't fix it by ourselves.

 

[wrightme]

@rickward

While it is stated that statute you cite denies that it allows the open carry of weapons, for that to have value, somewhere there needs to be a statute that does make open carry unlawful. Otherwise, it is simply a statute that states that it isn't allowing it. Unless a different statute prevents OC, it isn't against the law to do so.



A statute that states that it does not allow some act is different than a statute that states that it prevents an act. Where is the statute preventing OC?

 

[rickward]

I'll try one more time - this is what our ag says is the reason we can"t carry open

@rickward

While it is stated that statute you cite denies that it allows the open carry of weapons, for that to have value, somewhere there needs to be a statute that does make open carry unlawful. Otherwise, it is simply a statute that states that it isn't allowing it. Unless a different statute prevents OC, it isn't against the law to do so.



A statute that states that it does not allow some act is different than a statute that states that it prevents an act. Where is the statute preventing OC?

"nothing in this section shall be construed to allow the open and unconcealed carrying"

 

[Q-Tip]

Exactly. Nothing in that section allows it, but nothing else in any other section of the law prevents it. Paragraph 18 doesn't disallow anything. So if it's not prevented anywhere else, then it's legal.

 

[wrightme]

"nothing in this section shall be construed to allow the open and unconcealed carrying"

Neither does anything in that section DENY oc.



What statute denies OC? If there is no statute making OC illegal, it is legal to OC.



Statutes don't 'allow' actions, unless those actions are first made illegal by statute.

 

[FedFirefighter]

Not sure which guy you are talking about. If it is me, you are dead wrong. I am much in favor of OC. I am just being the messenger delivering this Attorney General Opinion. If the guy you are talking about is Jimmy Dale or Jim Hood, you are talking about the Attorney General and his assistant. I don't know if they have a personal opinion on open carry or not, but they are supposedly giving their opinion of the law. I know everybody has opinions and every thing else, but legal opinions from the Attorney General hold water until struck down by a court. If you say you will continue to carry around Hattiesburg, you must not understand the meaning and weight of this opinion. If you were ignorant about it before, you shouldn't be after reading the opinion. If you continue as you have before, you may very well become our test case needed to have the courts rule on the opinion and the law. Good luck!

I'm sorry if you mistook my meaning, I was referring to the AG or his asst. I know you are just the messenger and we all appreciate it, no disrespect intended. The last couple of posts sum up my point though. Nothing in this section, blah blah, exactly. State constitution allows bearing arms and they do regulate concealment. They cannot forbid OC, then make you pay for concealing. That would be having to pay a fee or tax for the free exercising of a RIGHT, which has been shot down in court already. I'll try to find that case.

 

[wrightme]

I'm sorry if you mistook my meaning, I was referring to the AG or his asst. I know you are just the messenger and we all appreciate it, no disrespect intended. The last couple of posts sum up my point though. Nothing in this section, blah blah, exactly. State constitution allows bearing arms and they do regulate concealment. They cannot forbid OC, then make you pay for concealing. That would be having to pay a fee or tax for the free exercising of a RIGHT, which has been shot down in court already. I'll try to find that case.

Yet FL does exactly that.

 

[bigun220]

I think the AG got it wrong. His opinion doesn't make sense and it just makes the confusing laws worse. The opinion just further points out the need for the legislature to address 97-37-1.

I've tried emailing legislators, but haven't had much success except for a few senators. I think we are going to need the NRA's help with this one guys. They have all the "big" lawyers and funds to handle issues like this. I'm like most on here, I don't have the funds to battle it in court and I sure don't feel like sitting in a jail cell. I say we should contact the NRA about this ridiculous opinion and confusing CCW statute.

 

[Daylen]

I think the AG got it wrong. His opinion doesn't make sense and it just makes the confusing laws worse. The opinion just further points out the need for the legislature to address 97-37-1.

I've tried emailing legislators, but haven't had much success except for a few senators. I think we are going to need the NRA's help with this one guys. They have all the "big" lawyers and funds to handle issues like this. I'm like most on here, I don't have the funds to battle it in court and I sure don't feel like sitting in a jail cell. I say we should contact the NRA about this ridiculous opinion and confusing CCW statute.

Are you a member? If not, join before contacting them if you even want to be heard.

 

[bigun220]

Are you a member? If not, join before contacting them if you even want to be heard.

I am a member. I will draft up an email tomorrow. Any suggestions would be greatly appreciated.

 

[Daylen]

I am a member. I will draft up an email tomorrow. Any suggestions would be greatly appreciated.

I'd suggest trying to get in touch with the local "grassroots" ILA person. Any and all NRA members need to do likewise. I'm planning to send a letter in soon; first I plan to up my membership to lifetime. Unfortunately the attorney general was just re elected for a 4 year term

 

[rickward]

Ok, carry yours in the open, get arrested and tell the judge that

Exactly. Nothing in that section allows it, but nothing else in any other section of the law prevents it. Paragraph 18 doesn't disallow anything. So if it's not prevented anywhere else, then it's legal.

I hope you are successful. Somebody has to be the test case. I would rather try ammended legislation than tell the Attorney General what is, or is not law, or tell a judge who might rely on the Attorney General opinion.

Best of luck to you.

 

[KYGlockster]

In KY the chance of an arrest is very small. We do have a few incidents of intimidation and harassment, but arrests are very rare. Arizona does have a better climate for OC on private property, but LEO here are generally up to speed.

How so Gutshot? In Arizona "no firearms" signs hold the force of law on private property. In AZ an officer can disarm you without RAS of a crime, and you must inform them if you are carrying a gun. We have better laws all the way around, other than we must obtain a license to carry a firearm or other deadly weapon concealed on our person if: we are outside of our vehicle (we can carry in any factory installed storage compartment or in the open with no license in our vehicles) or off our own property or that of someone we have permission to carry on (this change in law takes effect Tom.). We can openly carry anywhere, and we can carry on private property and pass "no firearm" signs without breaking a law.

 

[Malum Prohibitum]

I see the attached image from your second try, thanks.

If you read over the opinion a few times, you'll notice the SAAG contradicts himself. He says open carry falls under 97-37-1/45-9-101 because it's partially concealed, but then suddenly it's treated as open and not partially concealed, making it supposedly illegal under the terms of the permit. Either a weapon concealed (wholly or partially) or it's not!

I noticed also that the SAAG references Chief Justice Lee's dissent in L.M.Jr. v. State - that dissent is the only legal or quasi-legal text that anyone has been able to find regarding "concealed in part". I'll try to look later for the discussions we've had about it, but in short, that dissent is pretty much useless since concealment "in part" wasn't a factor in the case at all.

In short, that AG opinion has no logical reasoning to back it up, and the English language itself is proof against the opinion. While I'm not a lawyer, I strongly suspect that it would get torn to shreds if it was brought up against an OCer in court.

Ok, but since the opinion is out there, and it is persuasive authority for any court (and police officers will follow it in the absence of any other guidance), is it responsible for the maps on this forum to show Mississippi as GREEN?

http://www.kingfish1935.blogspot.com/2012/06/ag-concealed-mean-concealed.html

This could lead to a false sense of confidence to visitors who view the map.

 

[bigun220]

Ok, but since the opinion is out there, and it is persuasive authority for any court (and police officers will follow it in the absence of any other guidance), is it responsible for the maps on this forum to show Mississippi as GREEN?

http://www.kingfish1935.blogspot.com/2012/06/ag-concealed-mean-concealed.html

This could lead to a false sense of confidence to visitors who view the map.

I'm pretty sure the maps reflect what the laws of each state are, not AG opinions.

 

[4sooth]

I don't have the cites at hand--but the U.S. Supreme Court has said that when a right is recognized--the citizen must have some way of FREELY exercising that right. Since Mississippi's constitution recognizes the right and chooses to regulate the concealed aspect then the "free" option would be open carry. Louisiana had this issue of "what is concealed" for many years until State v Fluker defined what concealed is in Louisiana. "If an object can be identified for what it is, then it is not concealed." Any challenge to a restriction should be based on the Supreme Courts recognition of having some free way of exercising any recognized right.