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Thread: Concerns about 2016 SB 48: "Constitutional Carry"

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    Regular Member TFred's Avatar
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    Concerns about 2016 SB 48: "Constitutional Carry"

    I have questions about SB48, the so-called "Constitutional Carry" bill.

    In a nutshell, the bill states that if one "is otherwise qualified" to obtain a Concealed Handgun Permit, minus the demonstration of competency (training, etc.) then one may carry a concealed handgun anywhere that a handgun may be carried openly.

    However, the way the bill/current law works is this:

    It is, and will still be, illegal to carry a concealed handgun in the state of Virginia.

    There is a list of "shall not apply to" which excludes certain people from this law. The most commonly known and used probably being "Any person while in his own place of business."

    SB 48 proposes to add another exclusion to this list:

    "For the sole purpose of carrying a concealed handgun, any person who carries a concealed handgun anywhere he may lawfully carry a handgun openly within the Commonwealth and who is otherwise qualified under this article to obtain a concealed handgun permit."

    While this seems to do the desired job, it leaves me with many questions.

    Since the act of carrying a concealed handgun will still be a crime, how does this affect permitless concealed handgun carriers in the wild, among police officers?

    Courts have ruled that open carry alone is not sufficient for detention to check to see if you are barred from possession, because open carry is the "normal" state, and not against the law. There must be a specific reason to suspect you are outside that "normal" law-abiding state before you can be detained.

    Will that be the case here? If someone happens to notice you are carrying a concealed handgun (and please dispense with the "concealed means concealed" comments, slips happen to the best of us), or perhaps some gun-hater happens to KNOW you are carrying a handgun, and they call the police, is that report enough to detain you? How would the police know "on the side of the road" if you are "otherwise qualified" to obtain a permit, when that process takes a complete background check, including a search and analysis of any prior record? Would anyone carrying concealed be subject to arrest and detention until such a background check could confirm that you are "qualified?" What events would rise to the level of probable cause to initiate such a course of action?

    And perhaps more importantly, how do YOU KNOW for sure that you are "otherwise qualified?" There are so many quirky disqualifiers, with odd expiration times on them, it is quite possible that there could be many people riding that line between qualified and not quite qualified, and no idea which side they fall on. At least with a permit system, if someone discovers that you are no longer qualified, they are supposed to contact you and get the permit back!

    While I very much understand the concept of first steps, it would seem to be not only better, but perhaps even critical to implement a Constitutional Carry law that is really that: Anyone not disqualified to possess, is therefore qualified to carry, in any fashion they so choose. Of course, this would require elimination of vast portions of the current law.

    I would hope that the sponsor and supporting organization(s) did a lot of thinking about this. If anyone has any inside scoop, I'd love to hear it. I just have a very bad feeling about what might happen if a gun-hating judge gets ahold of some unwitting victim as this bill is currently written.

    TFred

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    Quote Originally Posted by TFred View Post
    <snip> I just have a very bad feeling about what might happen if a gun-hating judge gets ahold of some unwitting victim as this bill is currently written.

    TFred
    Methinks you have very good insight....

    Given that all the discussion that a judge could rely upon likely happens behind closed doors in committee meetings that you are not invited to it would allow a judge to do anything.

    Good luck.

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    Moderator / Administrator Grapeshot's Avatar
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    There has been talk about scraping § 18.2-308 and starting all over.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member glockfan's Avatar
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    Can't we SOMEHOW keep Herring from terminating the reciprocity agreements on February 1st?

    Does Herring answer only to McAfull ?

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by Grapeshot View Post
    There has been talk about scraping § 18.2-308 and starting all over.
    Why do we have to start something else?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by TFred View Post
    I have questions about SB48, the so-called "Constitutional Carry" bill.

    In a nutshell, the bill states that if one "is otherwise qualified" to obtain a Concealed Handgun Permit, minus the demonstration of competency (training, etc.) then one may carry a concealed handgun anywhere that a handgun may be carried openly.

    However, the way the bill/current law works is this:

    It is, and will still be, illegal to carry a concealed handgun in the state of Virginia.

    There is a list of "shall not apply to" which excludes certain people from this law. The most commonly known and used probably being "Any person while in his own place of business."

    SB 48 proposes to add another exclusion to this list:

    "For the sole purpose of carrying a concealed handgun, any person who carries a concealed handgun anywhere he may lawfully carry a handgun openly within the Commonwealth and who is otherwise qualified under this article to obtain a concealed handgun permit."

    While this seems to do the desired job, it leaves me with many questions.

    Since the act of carrying a concealed handgun will still be a crime, how does this affect permitless concealed handgun carriers in the wild, among police officers?

    Courts have ruled that open carry alone is not sufficient for detention to check to see if you are barred from possession, because open carry is the "normal" state, and not against the law. There must be a specific reason to suspect you are outside that "normal" law-abiding state before you can be detained.

    Will that be the case here? If someone happens to notice you are carrying a concealed handgun (and please dispense with the "concealed means concealed" comments, slips happen to the best of us), or perhaps some gun-hater happens to KNOW you are carrying a handgun, and they call the police, is that report enough to detain you? How would the police know "on the side of the road" if you are "otherwise qualified" to obtain a permit, when that process takes a complete background check, including a search and analysis of any prior record? Would anyone carrying concealed be subject to arrest and detention until such a background check could confirm that you are "qualified?" What events would rise to the level of probable cause to initiate such a course of action?

    And perhaps more importantly, how do YOU KNOW for sure that you are "otherwise qualified?" There are so many quirky disqualifiers, with odd expiration times on them, it is quite possible that there could be many people riding that line between qualified and not quite qualified, and no idea which side they fall on. At least with a permit system, if someone discovers that you are no longer qualified, they are supposed to contact you and get the permit back!

    While I very much understand the concept of first steps, it would seem to be not only better, but perhaps even critical to implement a Constitutional Carry law that is really that: Anyone not disqualified to possess, is therefore qualified to carry, in any fashion they so choose. Of course, this would require elimination of vast portions of the current law.

    I would hope that the sponsor and supporting organization(s) did a lot of thinking about this. If anyone has any inside scoop, I'd love to hear it. I just have a very bad feeling about what might happen if a gun-hating judge gets ahold of some unwitting victim as this bill is currently written.

    TFred
    TFred,

    This is also my irritation with the bill.

    For example, other bills continue to give perks to permittees. $350,000 for a permittee who is harmed in a no gun zone, but nothing for others who open carry.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Thundar View Post
    Why do we have to start something else?
    Presuming Constitutional Carry, there will still be people who will want a CHP for travel to other states.

    That and there will still be certain persons who should not benefit thereof.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Campaign Veteran MAC702's Avatar
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    Why must they default to making new laws instead of just repealing old laws?
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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    Regular Member TFred's Avatar
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    The more I think about this bill, the more it scares me. It puts ALL the risk on the citizen to completely know the CHP requirements, and to be 100% SURE that they qualify.

    If you apply for a CHP now, but are denied, what is the consequence? None that I am aware of.

    Under this new law, if you assume you qualify and carry a concealed handgun, but you are not actually qualified, what is the consequence? A criminal record!

    At the very MINIMUM, the wording should be changed to require INTENTIONAL knowledge that you were not qualified.

    "For the sole purpose of carrying a concealed handgun, any person who carries a concealed handgun anywhere he may lawfully carry a handgun openly within the Commonwealth and who is otherwise qualified to the best of his knowledge under this article to obtain a concealed handgun permit."

    Or something like that...

    TFred

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by MAC702 View Post
    Why must they default to making new laws instead of just repealing old laws?
    This is my preferred approach. Why is this important? The proposed bill still makes it a class one misdemeanor for a 20 year old to conceal.

    Also, nothing for the anti's to try and change around later and destroys the P4P mentality.
    Last edited by Thundar; 01-25-2016 at 01:34 PM.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Quote Originally Posted by Thundar View Post
    This is my preferred approach. Why is this important? The proposed bill still makes it a class one felony for a 20 year old to conceal.

    Also, nothing for the anti's to try and change around later and destroys the P4P mentality.
    The only way you'd get to the felony is if you got caught and successfully prosecuted for illegally carrying a concealed handgun twice. The first time is a Class 1 misdemeanor once successfully prosecuted.
    Last edited by jmelvin; 01-25-2016 at 09:54 AM.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by jmelvin View Post
    The only way you'd get to the felony is if you got caught and successfully prosecuted for illegally carrying a concealed handgun twice. The first time is a Class 1 misdemeanor once successfully prosecuted.
    Thanks JMELVIN, I meant class one misdemeanor.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    The ostensible reason for the concealed weapon statute is that when you're openly carrying, everyone around you who's interested can see that you're carrying, and be mentally prepared for your doing something stupid with a gun. But if the gun's concealed, then they don't have that opportunity for full situational awareness, and given the gangster movies of the 'fifties, we fear that bad guys might carry guns in their pockets. I think it's dumb, myself, and take the provisions of Article 1, Section 13 of the Constitution seriously - "shall not be infringed" means, "shall not be infringed". If someone does something stupid with a gun, that's going to be a criminal offense in and of itself, and it don't make a rat's bottom's worth of difference how he'd stored the gun prior to the stupidity.
    Last edited by user; 01-27-2016 at 09:12 AM.
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    This bill was defeated in Senate today after a tie was broken by Lt Governor Northam. See: http://leg1.state.va.us/cgi-bin/legp...e?161+sum+SB48

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by homestar View Post
    This bill was defeated in Senate today after a tie was broken by Lt Governor Northam. See: http://leg1.state.va.us/cgi-bin/legp...e?161+sum+SB48
    It will soon be time to retire Northam - relegate him to the Has Been Club.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Grapeshot View Post
    It will soon be time to retire Northam - relegate him to the Has Been Club.
    We expect this from Northam. But not from Hanger. Reminds me of Norment, who, when asked why he voted "no" on the CHP privacy bill a number of years ago (killing it that year), said, "Oh, I go back and forth on that one..."

    TFred

    Despite McAuliffe’s gun deal with GOP, issue still creates fight in state Senate

    The argument did not carry the day in the Senate, which the GOP controls by a 21-19 margin. Sen. Emmett W. Hanger Jr. (R-Augusta), a moderate known for crossing party lines on some hot-button issues, joined with Democrats to vote against the bill, leading to a 20-20 tie.

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    I'd rather see them scrap the need to renew permits.

    I'd rather see them remove the CHP holders from the VCIN.

    I'd rather see them revoke LE's ability to handle, remove, unload, take to their car any holstered or secured firearm during a traffic stop.

    I'd rather see strong education on and backing on the idea the CHP holders and LAC OC-ers are the GOOD GUYS and are not to be mistreated or harassed.

    You're never going to get reasonable provisions on a CC bill. But the above gives specific entitlements and reliefs.

    FWIW

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    Quote Originally Posted by TFred View Post
    We expect this from Northam. But not from Hanger. Reminds me of Norment, who, when asked why he voted "no" on the CHP privacy bill a number of years ago (killing it that year), said, "Oh, I go back and forth on that one..."

    TFred

    Despite McAuliffe’s gun deal with GOP, issue still creates fight in state Senate

    The argument did not carry the day in the Senate, which the GOP controls by a 21-19 margin. Sen. Emmett W. Hanger Jr. (R-Augusta), a moderate known for crossing party lines on some hot-button issues, joined with Democrats to vote against the bill, leading to a 20-20 tie.
    That seems a good sign that Con Carry will indeed be on the table when McAuliffe is out.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by press1280 View Post
    That seems a good sign that Con Carry will indeed be on the table when McAuliffe is out.
    Constitutional Carry has been our Holy Grail since day one.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by homestar View Post
    This bill was defeated in Senate today after a tie was broken by Lt Governor Northam. See: http://leg1.state.va.us/cgi-bin/legp...e?161+sum+SB48
    Shows how weak our grass roots are.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Regular Member Maverick9's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Constitutional Carry has been our Holy Grail since day one.
    The question is 'how do you define it'.

    Vermont, Alaska, Arizona, and Wyoming have CC but it's not easy to find anything online where it is defined, codified, stated.

    Virgina will undoubtedly end up not doing it because nobody will be able to 'detail' how it should work in 10 million words or less (g).

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Thundar View Post
    Shows how weak our grass roots are.
    Disagree. It shows the power that one person in the right spot can wield.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by Maverick9 View Post
    The question is 'how do you define it'.

    Vermont, Alaska, Arizona, and Wyoming have CC but it's not easy to find anything online where it is defined, codified, stated.

    Virgina will undoubtedly end up not doing it because nobody will be able to 'detail' how it should work in 10 million words or less (g).
    My understanding is that Vermont (at one time the only state with it) has it because it has never been codified to be otherwise illegal, like all the other states.

    As for the others, what is misleadingly called "Constitutional" Carry, is in the statutes. I've read AZ and WY (residents only), and they are pretty straight-forward. I'm not going to go look for them now, but www.handgunlaw.us will probably have the direct links to the state statutes.
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Maverick9 View Post
    The question is 'how do you define it'.

    Vermont, Alaska, Arizona, and Wyoming have CC but it's not easy to find anything online where it is defined, codified, stated.

    Virgina will undoubtedly end up not doing it because nobody will be able to 'detail' how it should work in 10 million words or less (g).
    As I expressed in my original post, I had concerns about this bill. It wasn't "Constitutional Carry" at all, rather it was, "Take a GUESS on whether you can carry concealed, and by the way, if you guess wrong, you GO TO JAIL!!"

    What we should ultimately strive for is the removal of any state-level restriction on carry in any form, essentially defaulting to: "Any person not federally prohibited from possession, may carry in any fashion they desire."

    There would of course still be a need for the issuing of permits, for those who need reciprocity. Again, based on federal possession requirements.

    It may take more than one step to get there.

    TFred

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    Campaign Veteran MAC702's Avatar
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    Well, since we are hoping for a fantasy, I would even go so far as to have states ignore federal possession requirements. Too many of them, also, are wrong. If you aren't currently in prison, welcome back to society.
    Last edited by MAC702; 02-01-2016 at 11:12 PM.
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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