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Q&A about SB1733 - Open Carry in Oklahoma

hrdware

Regular Member
Joined
Feb 8, 2011
Messages
740
Location
Moore, OK
Yes having a permit does exempt you from the GFSZA but that only to the extent of transport and not the use of, as in actually discharging your firearm for the purpose of self defense unless like you stated when on or in your own private property not part of school grounds. So at this point with the current wording regardless of your lawful possession your still powerless to use said weapon to defend yourself or another without possibility of prosecution.

We can't just look at the FGFSZA by itself, we also have to look at state law.

The permit does exempt you from the possession portion of the FGFSZA (paragraph 2), but only for the purpose of transporting a student to and from school (per state law).

You are correct, that the permit does not exempt you from paragraph 3, discharging your firearm unless you are on private property. I disagree with the bolded part as it does not say it has to be your private property.

What that means now is that if I'm walking down the street and I come up to a school and I am carrying, I really need to cross the street and continue past the school. While the FGFSZA would allow me to continue along the school side, state law would not.
 

Robert318

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Nov 2, 2012
Messages
158
Location
Choctaw, OK
We can't just look at the FGFSZA by itself, we also have to look at state law.

The permit does exempt you from the possession portion of the FGFSZA (paragraph 2), but only for the purpose of transporting a student to and from school (per state law).

You are correct, that the permit does not exempt you from paragraph 3, discharging your firearm unless you are on private property. I disagree with the bolded part as it does not say it has to be your private property.

What that means now is that if I'm walking down the street and I come up to a school and I am carrying, I really need to cross the street and continue past the school. While the FGFSZA would allow me to continue along the school side, state law would not.

Yes that was my mistake it doesnt say your own,
(A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.
(B) Subparagraph (A) does not apply to the discharge of a firearm— (i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity. ;

However the SDA also doesn't afford us the right to carry on someone else's private propery therefore the only private property without consent would be our own and also I'm thinking that (I'm not sure the exact distance) but that so far from the roadway which would include but not limited to any sidewalks is actually public and considered an easement or right of way and not private. Of which is not listed as an exempted place for discharging of your weapon. Though you may not be in violation of the SDA or the GFSZA for transport being that you are walking on public property with a permit, the act of discharging your weapon as worded in a public place would be a violation of the SDA and if within the school zone the GFSZA.
TITLE 21 § 1364
DISCHARGING FIREARM
Every person who willfully discharges any pistol, rifle, shotgun, airgun or other weapon, or throws any other missile in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor. Any person convicted of a violation of the provisions of this section after having been issued a handgun license pursuant to the provisions of the Oklahoma Self-Defense Act shall have the license suspended for a period of six (6) months and shall be subject to an administrative fine of Fifty Dollars ($50.00), upon a hearing and determination by the Oklahoma State Bureau of Investigation that the person is in violation of the provisions of this section.

But of course as with any law or violation thereof would be up to the discression of the authority having jurisdiction as to persure such charges, of which I don't care or can afford to be the test case.

Also I am not a lawyer and my comments are not legal advise but merely my interpretation of law.
 

hrdware

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Feb 8, 2011
Messages
740
Location
Moore, OK
However the SDA also doesn't afford us the right to carry on someone else's private propery therefore the only private property without consent would be our own and also I'm thinking that (I'm not sure the exact distance) but that so far from the roadway which would include but not limited to any sidewalks is actually public and considered an easement or right of way and not private. Of which is not listed as an exempted place for discharging of your weapon. Though you may not be in violation of the SDA or the GFSZA for transport being that you are walking on public property with a permit, the act of discharging your weapon as worded in a public place would be a violation of the SDA and if within the school zone the GFSZA.

But of course as with any law or violation thereof would be up to the discression of the authority having jurisdiction as to persure such charges, of which I don't care or can afford to be the test case.

Also I am not a lawyer and my comments are not legal advise but merely my interpretation of law.

You are correct that the SDA does not tell us where we can carry. It doesn't list Wal-Mart, but I can carry there and that is private property. Unless it is a prohibited place as codified in statute, it is legal to carry until the property owner tells me otherwise (and I believe a sign is sufficient notice of their wishes). Laws are supposed to be designed to tell us what we cannot do, not what we can. The exception is when the law is written that says it is illegal to do X, unless condition Y exists. You cannot carry a concealed firearm unless you have a Handgun License. In the same way, nothing in the law says I cannot carry a firearm onto any private property. I can be asked to leave by the property owner and if I refuse, I can be charged with trespass. Therefore any private property (where you have not been asked to leave) would be OK.

If I remember correctly, all land out to the gutter in the street is private property belonging to the landowner. However, the local government has easement rights, but that does not make the land public. The same goes for sidewalks that cross private property. While they are on private property, it is a violation of the law (at least where I live) for the private property owner to block the sidewalk. Also if something happens to the sidewalk, such as a sinkhole occurs underneath and disrupts one of the sections, many times it is the landowner and not the city that has to pay to get it fixed. After all, it is a problem with your land (under the sidewalk) that caused the problem in the first place.

The section of law quoted, is listed under Crimes Against Public Peace and I think is aimed a quelling celebratory gunfire. Keep in mind that the Oklahoma Law provides for the lawful discharge of a firearm in self defense.
Title 21 said:
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.
B. A person or an owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and
2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
C. The presumption set forth in subsection B of this section does not apply if:
1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, occupied vehicle, or place of business to further an unlawful activity.
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
E. A person who unlawfully and by force enters or attempts to enter the dwelling, residence, occupied vehicle of another person, or a place of business is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term "criminal prosecution" includes charging or prosecuting the defendant.
G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section.
I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
J. As used in this section:
1. "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people;
2. "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; and
3. "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

So a person who uses deadly force and is justified in using such force is immune from criminal prosecution from the use of such force. If you are justified in firing a handgun for defensive purposes than you cannot be charged or prosecuted for criminal acts.

In my opinion, if you were within 1000 ft of a school and discharged your firearm for justifiable defensive purposes you may face charges under the FGFSZA, but not under state law. And I think the FGFSZA would even be a little iffy.

I am not a lawyer, but this is my take on it.
 

Robert318

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Nov 2, 2012
Messages
158
Location
Choctaw, OK
Hrdware,
You make a very reasonable point about private property and the use of force. I must not have been thinking clearly as I had a rough night, very little sleep.

Not sure what I was thinking about the private property part. But as for the public discharge, to the best of my recollection in my safety course that was not explained in that way, then again that was over seven years ago. With that I can see your explaintion and am thinking that should be clarified better in the law therefore requiring less interpretation.

After revisiting the use of force bit, what is your take as to why they titled it against an intruder instead of another person if it also protects us while at any other place we have a right to be? If we have a right to be out say walking our dog in public for example and someone trys to rob us or something that wouldn't make them an intruder of our home, vehicle or business would it other than maybe intruding on my own safety?

Also something that brought confusion to my own interpretation about that section was subsection D.
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Wouldn't that also include businesses in and of itself? Therefore nulifying the need to change the wording to say a place of business if you had a legal right to be there in that place?
 

hrdware

Regular Member
Joined
Feb 8, 2011
Messages
740
Location
Moore, OK
After revisiting the use of force bit, what is your take as to why they titled it against an intruder instead of another person if it also protects us while at any other place we have a right to be? If we have a right to be out say walking our dog in public for example and someone trys to rob us or something that wouldn't make them an intruder of our home, vehicle or business would it other than maybe intruding on my own safety?

Also something that brought confusion to my own interpretation about that section was subsection D.

Wouldn't that also include businesses in and of itself? Therefore nulifying the need to change the wording to say a place of business if you had a legal right to be there in that place?

Remember that when this was first passed, paragraph D did not exist in its current form. The law was simply written as the "Make My Day" law, which protected home owners when using deadly force against an intruder. Hence the title. Over time, more has been added to this section of the statutes, including the current paragraph D and and 2011 the part about being safe in a business.

At another point in time, the "Stand Your Ground" portion of the law was added so that people were not required to run away before they were able to use deadly force.

I think part of the reason the business stuff was added was due to the Jerome Ersland(sp) pharmacy issue. (I'm not getting into the rulings of that case). But lawmakers felt it was necessary to specifically say that people have a right to feel safe where they work. Therefore they added language to specifically protect people who use deadly force against an intruder while at work.

With all these additions to the statute, the title has never been updated.
 

okiebryan

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Joined
Sep 26, 2011
Messages
447
Location
Director, Oklahoma Open Carry Association
I believe that the difference between in your home, business or occupied vehicle is this: It is lawfully presumed that you are in fear for your life when an intruder breaks into one of these places. This gives you justification to use force, including deadly force, to defend yourself. This means that you do not have to determine whether the burglar or carjacker has a weapon, or what their intentions are.

If you are in public, the standard for deadly force is higher. You can't just shoot someone because they give you the creeps, because they have just as much right to be where they are as you have to be where you are. You actually have to have articulable fear for your live or that you are in grave danger, fear that a reasonable person in your exact circumstances would need to have as well.

I am not a lawyer, this is my personal take on Oklahoma law.
 

Robert318

Regular Member
Joined
Nov 2, 2012
Messages
158
Location
Choctaw, OK
Am I interpreting the law correctly when it talks about allowing minors to possess a weapon? Can I not allow my 17-year-old daughter to practice with a pistol at the gun range while I am there supervising her, but could allow her to fire my rifle or shotgun?

TITLE 21 § 1273 ALLOWING MINORS TO POSSESS FIREARMS
A. It shall be unlawful for any person within this state to sell or give to any child any of the arms or weapons designated in Section 1272 of this title; provided, the provisions of this section shall not prohibit a parent from giving his or her child a rifle or shotgun for participation in hunting animals or fowl, hunter safety classes, target shooting, skeet, trap or other recognized sporting events, except as provided in subsection B of this section.
C. It shall be unlawful for any child to possess any of the arms or weapons designated in Section 1272 of this title, except rifles or shotguns used for participation in hunting animals or fowl, hunter safety classes, target shooting, skeet, trap or other recognized sporting event. Provided, the possession of rifles or shotguns authorized by this section shall not authorize the possession of such weapons by any person who is subject to the provisions of Section 1283 of this title.
E. As used in this section, “child” means a person under eighteen (18) years of age.

And what about allowing her to have access to my weapons be it a pistol, rifle, or shotgun for her personal defense or defense of home or livestock while at home? Note: personal defense of self or of home or property including livestock are not mentioned as exceptions.
 

okiebryan

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Director, Oklahoma Open Carry Association
Am I interpreting the law correctly when it talks about allowing minors to possess a weapon? Can I not allow my 17-year-old daughter to practice with a pistol at the gun range while I am there supervising her, but could allow her to fire my rifle or shotgun?



And what about allowing her to have access to my weapons be it a pistol, rifle, or shotgun for her personal defense or defense of home or livestock while at home? Note: personal defense of self or of home or property including livestock are not mentioned as exceptions.

While I am not a lawyer, I know that MANY people allow their kids to shoot pistols supervised, even in the presence of law enforcement (ie at the range) and never is anything said. I also know that there have been many cases of minors accessing handguns and defending the home from intruders. Again, never any charges filed.

I gifted my daughter a 22LR repeating rifle, and she sometimes target shoots without adult supervision. Of course, she has been well trained. I would not gift her a pistol, but her mom has one and I know that she knows where it is and how to use it effectively in the event of a home invasion.

I understand more about how this law is enforced than I understand the law itself.
 

cbxer55

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Feb 25, 2009
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127
Location
Midwest City, Oklahoma, USA
Wasn't there an event here in Oklahoma recently where a child shot an intruder? I seem to recall reading about that on these here interwebs. I would certainly hope the parents do not get charged for allowing a minor access to a firearm, when that access saved her life. That would just totally piss me off, might go off on a long rant if that happened. ;-)
 
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Keylock

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Nov 24, 2012
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196
Location
OKC
Wasn't there an event here in Oklahoma recently where a child shot an intruder? I seem to recall reading about that on these here interwebs. I would certainly hope the parents do not get charged for allowing a minor access to a firearm, when that access saved her life. That would just totally piss me off, might go off on a long rant if that happened. ;-)

12 year old girl back in October.

Story ---> http://www.news9.com/story/19858704/12-year-old-girl-shoots-intruder-during-home-invasion
 

cbxer55

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Feb 25, 2009
Messages
127
Location
Midwest City, Oklahoma, USA
Yup, that is the one I was thinking about. I am happy she did that (though not the situation that required her to do so), and had enough wits about her to do so. That is what gun control is about, hitting what you are aiming for.
 
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hrdware

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Feb 8, 2011
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740
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Moore, OK
Am I interpreting the law correctly when it talks about allowing minors to possess a weapon? Can I not allow my 17-year-old daughter to practice with a pistol at the gun range while I am there supervising her, but could allow her to fire my rifle or shotgun?



And what about allowing her to have access to my weapons be it a pistol, rifle, or shotgun for her personal defense or defense of home or livestock while at home? Note: personal defense of self or of home or property including livestock are not mentioned as exceptions.

I am not a lawyer, but the way I read this statute is that the word "give" implies ownership. At the range, my kids can shoot my firearms, but they don't own them for the time they are shooting them. The law does allow you to give rifles and shotguns to those under 18 for certain purposes.

You are correct in that the law does not mention personal defense as a reason to give a minor a firearm. However if a minor has to use a firearm for self defense purposes in the home, and they use one of your firearms, have you really given it to them, or just made it available to them. Again, I read this as the word "give" implies ownership.

Besides, in a general overall sense, would you want to give a minor a firearm specifically for self defense. Minors who have to deal with all the drama of making it through high school. Please don't come back with the "Well my kid is the exception to the rule" line because most parents will believe their child(ren) is/are the exception, hence why I said in a general overall sense.
 

Frank B

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Nov 9, 2012
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Blanchard
My understanding of the 1000 ft rule for school property is that if you have an SDA license issued in that state then you are exempt. If your icense is from another state, you are not exempt from the 1000 ft rule. What this means is if someone licensed in OK goes to Texas and passes within 1000 ft of school property they just broke the federal law.

Also, the Federal law on Post Offices says you are prohibited from possession of a firearm on the property, not just the building which includes the parking lot.
 

Robert318

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Nov 2, 2012
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158
Location
Choctaw, OK
I am not a lawyer, but the way I read this statute is that the word "give" implies ownership. At the range, my kids can shoot my firearms, but they don't own them for the time they are shooting them. The law does allow you to give rifles and shotguns to those under 18 for certain purposes.

You are correct in that the law does not mention personal defense as a reason to give a minor a firearm. However if a minor has to use a firearm for self defense purposes in the home, and they use one of your firearms, have you really given it to them, or just made it available to them. Again, I read this as the word "give" implies ownership.

Besides, in a general overall sense, would you want to give a minor a firearm specifically for self defense. Minors who have to deal with all the drama of making it through high school. Please don't come back with the "Well my kid is the exception to the rule" line because most parents will believe their child(ren) is/are the exception, hence why I said in a general overall sense.

Ok well this is another good example of poorly written law. To sell something to someone implies ownership to give something to someone does not imply ownership but merely possession. If I give my keys to my truck to my child that does not mean my child owns my vehicle but simply can take possession or use of my vehicle.

And since you bring it up, yes my children are an exception as well as myself. And anyone who has ever met or knows myself or my children will tell you the same thing. Something that really irritates me to the core is when someone puts me in a box with other people because of others' ignorance or lack of responsibility. Too many people rely on the schools to educate their children whenever their job is to educate them only in the subjects that which they are taught aka math science history etc., but not in the subject of being responsible moral people that is the responsibility of the parents. And if parents were held accountable for their children's irresponsibility or bad behavior then maybe they would get it through their thick skulls that that's not other's responsibility but their own. My children were taught not to play with fire, lighters or matches and even firearms or play in the street before they were four years old and yes they understood, (they knew what ouch or ouwey ment) just because their kids doesn't mean they don't have brains.

I'm sorry if I'm blunt but like I said I cant stand being stereotyped. Though people may be similar we are all individuals and the few should not be punished or restricted because of the mistakes of the many but the individual should be taught the error of there ways and or punished accordingly.

Also if a child is not responsible enough to have a pistol then the same can be said for a rifle or shotgun, a gun is a gun be it short or long and if improperly handled or used can be bad to put it mildly. And again I educated my children and did not hide such harmful things from them as to be detrimental to there safety. And communicated with my children and they knew and know if they have a problem that they needed to talk about it not bottle it up or do something that they might regret.

And your right too many talk the talk but can't walk the walk. Talk is cheap and the proof is in pudding. Case in point many people say or think they can drive because they can get behind the wheel and step on the gas but the proof is in the dents all over the car etc.

Although there are things that need to be added or removed from the sda the existing wording really needs to be fine tuned and contradictions need to be corrected. But anyways thanks for your input.
 
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hrdware

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740
Location
Moore, OK
Ok well this is another good example of poorly written law. To sell something to someone implies ownership to give something to someone does not imply ownership but merely possession. If I give my keys to my truck to my child that does not mean my child owns my vehicle but simply can take possession or use of my vehicle.

And since you bring it up, yes my children are an exception as well as myself. And anyone who has ever met or knows myself or my children will tell you the same thing. Something that really irritates me to the core is when someone puts me in a box with other people because of others' ignorance or lack of responsibility. Too many people rely on the schools to educate their children whenever their job is to educate them only in the subjects that which they are taught aka math science history etc., but not in the subject of being responsible moral people that is the responsibility of the parents. And if parents were held accountable for their children's irresponsibility or bad behavior then maybe they would get it through their thick skulls that that's not other's responsibility but their own. My children were taught not to play with fire, lighters or matches and even firearms or play in the street before they were four years old and yes they understood, (they knew what ouch or ouwey ment) just because their kids doesn't mean they don't have brains.

I'm sorry if I'm blunt but like I said I cant stand being stereotyped. Though people may be similar we are all individuals and the few should not be punished or restricted because of the mistakes of the many but the individual should be.

And your right too many talk the talk but can't walk the walk. Talk is cheap and the proof is in pudding. Case in point many people say or think they can drive because they can get behind the wheel and step on the gas but the proof is in the dents all over the car etc.

Although there are things that need to be added or removed from the sda the existing wording really needs to be fine tuned and contradictions need to be corrected. But anyways thanks for your input.

Your analogy with the keys is flawed. If you give your child your keys, they then own the keys to the truck, although not the truck itself. Again, it is my interpretation that "give" implies ownership. You can allow someone to borrow and use an item and although they are in possession of the item, they do not own the item.

That being said, the counter argument is that someone allows a minor child to borrow a handgun to take to the range and shoot. While ownership was not given to them, I believe the person who allowed them to borrow the handgun could still be prosecuted under this statute. I agree it is poorly worded and needs to be changed. However, this is technically not part of the SDA (1290.1 - 1290.26).

I will also agree that parents should be accountable for the safety of their children and teach them right from wrong. Like you, my kids know not to play with fire, lighters, matches, firearms, and to stay out of the street and to pull over and stop when riding their bikes. Unfortunately, since we can't write laws that apply to a specific person, we can't write laws that exempt specific people (without them being in an exempt group), that means laws have to be written to the lowest common denominator. There are reason hair dryers say "no not use in tub" and Preparation H says "For external use only"

It's not just kids that don't think straight all the time either.

Look at the case in Montana on Thanksgiving where a guy shot 2 intruders in his home. One was still alive, trying to breath, and the guy thought she was laughing at him so he put a gun under her chin and pulled the trigger in a, "good clean finishing shot". http://abcnews.go.com/US/minnesota-...d-shots-needed/story?id=17813093#.ULY8l4a-xrM

Or the guy in Florida who shot into the car next to him in a parking lot after a verbal altercation over the volume of the radio. He "thought" he saw a gun, then waited for his passenger to return to the car, drove a county or two over to get home, then called the cops. http://www.wtsp.com/news/article/28...-of-unarmed-FL-teen-is-no-Trayvon-Martin-case

I know many minors who have been brought up responsibly and many that have not....just as I know many adults that have and many that have not. Like I said the law is written to the least common denominator. I would hate to have a (potentially) good kid have their life messed up due to an accident because their irresponsible adult gave them a firearm simply because there was no law against it.
 
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