Open carry illegal?

eye95 · Oct 18, 2013

BrianB said:
...Little wrinkle in the CCW exemption for the Federal GFSZ act is that the license/permit must have been issued by the state that the school is in. So if you're in State X, and "carrying on" a permit from State Y, even if State X honors State Y's permit, it's still a felony crime. This of course is idiotic.

Actually, the law says something to the effect, "is licensed by," not, "has a license issued by." One literal meaning of licensed is, "has permission." Since reciprocity confers permission, it could be argued (I don't know how successfully) that having a reciprocal license means one is licensed (given permission) by the reciprocating State.

If someone is ever charged under the law, this argument should be considered.

“Why would we charge anyone with that?” Powell said.

Actually, he "asked."

But, to the point, we are supposed to allow bad law to stick around, counting on the good graces of law enforcement and prosecutors not to arrest or charge us under a bad law??? I know the city of Oberlin, OH thinks this way (for which they are being sued), but when federal law enforcement thinks this way, it is far more dangerous to more people.

JustaShooter · Oct 18, 2013

eye95 said:
Actually, the law says something to the effect, "is licensed by," not, "has a license issued by." One literal meaning of licensed is, "has permission." Since reciprocity confers permission, it could be argued (I don't know how successfully) that having a reciprocal license means one is licensed (given permission) by the reciprocating State.

If someone is ever charged under the law, this argument should be considered.

I believe the next phrase of that section of the law restricts it in a way that renders your argument invalid:

and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

So unless the State that the GFSZ is in "verifies that the individual is qualified under law to receive the license" a reciprocal or recognized license to carry does not provide an exception to the Federal GFSZ. And since no State is going to do this without issuing their own license, it wouldn't provide the needed exception.

That said, it is so remotely unlikely to ever be an issue as to make the entire GFSZ moot except as a possible additional charge on top of the primary offense that an individual is being charged with.

eye95 · Oct 18, 2013

Ohio accomplishes this verification by reciprocating only with States who also have background checks.

JustaShooter · Oct 18, 2013

Interesting argument - I'm not sure that it is a valid one, but would certainly be worth pursuing if it ever came up. However, the BATF disagrees, as stated in this letter: http://www.handgunlaw.us/documents/batf_school_zone.pdf

For purposes of the GFSZA, in order to fall within this limited exception, the permit must be issued by the State itself. Accordingly, your possession of a Virginia concealed weapons permit would not exempt you from the prohibitions of the Gun-Free School Zones Act in States that honor other State permits by legal agreement.

Although Virginia is specifically mentioned the intent is clear and would apply to Ohio or any other State just as readily. I'm not saying that a sharp legal mind couldn't prevail using your argument, but the cards are certainly stacked against it, and I fear that, as is often the case, "you may beat the rap but you won't beat the ride". In the unlikely event that a licensed individual was ever charged with a violation of this act, that is.

MAC702 · Oct 18, 2013

gutshot said:
But they didn't do the verifying.

Does any state do their own verifying, or do they call the FBI, and delegate it anyway? Verification is being done in a manner acceptable to the state, and that is the key I would argue.

eye95 · Oct 18, 2013

Bingo.

Sent from my iPad using Tapatalk.

<o>

JustaShooter · Oct 18, 2013

gutshot said:
Ky. does its own verifying. The Ky. State Police gathers information from the FBI and other sources, then the Ky. State Police uses that information to verify that the applicant meets the requirements of the Ky. concealed carry law. After verifying that the applicant conforms to Ky. law, the Ky. State Police issues a Ky. Concealed Deadly Weapons License. I don't know what happens in other states. It could be they just issue to anybody the FBI tells them is a nice guy.

No, I think you've pretty much got it right, which, combined with the letter from the BATF, is why I think the clause "and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;" renders the argument invalid that any license not issued by the State where the GFSZ is located would provide an exemption regardless of the qualifications the state uses to recognize it.

JustaShooter · Oct 18, 2013

gutshot said:
I think you must have missed the sarcasm in part of my post.

Apparently so. My sarcasm detector is of low quality and often malfunctions.

JustaShooter · Oct 18, 2013

gutshot said:
In any case, your post with the letter from ATF should be persuasive for anyone willing to be persuaded.

Perhaps. Those willing to be persuaded are certainly my intended audience - it would be a waste of time to focus on those not willing to be persuaded, wouldn't it?

eye95 · Oct 18, 2013

The BATFE does not make law. They issue regulations and interpretations based on their understanding of the law. Lawmakers write the laws, and courts interpret them. So, no, the BATFE interpretations of the law are to be considered, but they are not persuasive.

As I have said, IANAL, but I sure as hell will try that argument, among others, should I get jacked up on a GFSZ charge.

JustaShooter · Oct 18, 2013

eye95 said:
The BATFE does not make law. They issue regulations and interpretations based on their understanding of the law. Lawmakers write the laws, and courts interpret them. So, no, the BATFE interpretations of the law are to be considered, but they are not persuasive.

I understand and completely agree - and as BATF enforces those laws, it is their understanding that will hold sway on the side of the road, as it were.

eye95 said:
As I have said, IANAL, but I sure as hell will try that argument, among others, should I get jacked up on a GFSZ charge.

And as I commented earlier, I think you've come up with an interesting argument that would certainly be worth pursuing if circumstances arose that required a defense.

JustaShooter · Oct 18, 2013

gutshot said:
Yes, it would be a waste of time and that was exactly the point I was making. It seems that, once again, you have failed to understand my post.

Not at all surprising, I am after all nothing more than a fallible human being.

notalawyer · Oct 22, 2013

BrianB said:
Perhaps a minor point but NV dropped the FL CHL because our licenses are good for 7 years, not because we only background check every 7 years. Florida background checks permit holders monthly and will revoke the permit if you are found to no longer be eligible. I think NV just didn't like the fact that, revoked or not, you'll have a card in your wallet that says it's good for 7 years (though it would fail a verification if one were done).

No they do not.

notalawyer · Oct 22, 2013

BrianB said:
It is a stupid law that I never give a second thought to when on my home turf.

That said, allegedly, once upon a time, someone who isn't me was driving about at 1am in another state, while on vacation, carrying concealed, in a state with CCW reciprocity for their permit, trying to get back to their hotel, and made a wrong turn that put that person onto a college campus that was so big that the campus roads looked like regular public roads. At that time, that person was intensely conscious of the GFSZ act, and the unknown potential of state law issues as well, especially when a campus police cruiser was behind them for a bit as they attempted to get off said campus.

Little wrinkle in the CCW exemption for the Federal GFSZ act is that the license/permit must have been issued by the state that the school is in. So if you're in State X, and "carrying on" a permit from State Y, even if State X honors State Y's permit, it's still a felony crime. This of course is idiotic.

No sure why this individual was concerned at all. The law does not apply to colleges/universities:

18 USC 921

(25) The term “school zone” means—
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

(26) The term “school” means a school which provides elementary or secondary education, as determined under State law.

BrianB · Oct 22, 2013

notalawyer said:
No sure why this individual was concerned at all. The law does not apply to colleges/universities

An excellent point! That someone doesn't usually think much about the GFSZ law so didn't know right off and at that point in time wasn't going to stop to read United States Codes, nor figure out if they were violating state law, etc. - someone just wanted to get the heck off that campus.

BrianB · Oct 22, 2013

notalawyer said:
No they do not.

Perhaps my use of the term "background check" was less than great. Perhaps it would have been better to say "Florida does periodic matches of its permit holders to look for people who may have been naughty and become disqualified". I don't remember where I originally read that they do that, but did find this from an old United States GAO report that at least alludes to it. If I had a reason to really care I'd call FL DOACS and ask them what periodic matching they do, but whatever it is, I'm sure it doesn't rise to the level of re-running your fingerprints and therefore may not be properly called "doing a background check".

In two other states—Florida and Utah—state criminal records and other potentially disqualifying records are matched against the names of active permit holders on a periodic basis. Florida, for example,
conducts periodic matches of permit holders against a variety of state databases and records, including criminal histories (weekly), protection orders and repeat violent offenders (daily), corrections records (monthly), and motor vehicle records (monthly).

Freedom1Man · Oct 23, 2013

7om5hipp said:
Firearm possessors licensed by the state or locality to possess the gun, whose law requires that before the person obtains a license, state or local law enforcement verify that the person is qualified to receive the license.

I checked the law and that was one of the exemptions to the law. From what I have gathered and what others have told me, this means that if you have a CC permit it means you are exempt from the law. As for if that is true, I don't know.

I do know that I carry openly when I go to pick up my daughter from school, I stand on the sidewalk and make sure to remain off school grounds. The school staff have seen it and ignored it, parents have ignored it, and the police drive by and don't bother me about it. There was only one time, the first time I OC'ed to the school, someone called it in and the police showed up about 40 minutes later. (Amazing response time for a call about a man with a gun at a school.) They just wanted to make sure that I remained on the sidewalk and did not step on school property, they never asked for ID and never told me that I could not carry there.

AZ no license required for CC or OC unless that changed again.

sudden valley gunner · Oct 23, 2013

Freedom1Man said:
AZ no license required for CC or OC unless that changed again.

For CC don't they require a driver's license or a form of ID?

4sooth · Oct 23, 2013

See U.S. v Lopez--this will explain the overturning of the Federal "Gun Free Zone' and why.

Fallschirjmäger · Oct 23, 2013

Freedom1Man said:
AZ no license required for CC or OC unless that changed again.

sudden valley gunner said:
For CC don't they require a driver's license or a form of ID?

It's been a few years since I lived in Aridzona... but I'm unaware of any statute mandating that someone must carry identification at any time, or even have a license to do anything other than for a licensed activity.

Open carry illegal?

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