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Thread: Does Ala. Code 1975, §13A-11-52, forbid open carry?

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    Does Ala. Code 1975, §13A-11-52, forbid open carry? Does it allow open carry only if you have a permit/ccw?

    Forgive me if this has been discussed before, but I didn’t see any threads about it. Does anyone believe that Ala. Code 1975, §13A-11-52, effectively forbids open carry on the property of others, which of course would include retail businesses, restaurants, etc.?

    “Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer....”

    This has been interpreted to apply “to the carrying of a pistol on the private property of others-not on any public property.” E.T. v. State, 682 So. 2d 508, 509 (Ala. Crim. App. 1996). If you cannot carry a pistol on the property of others, then you cannot open carry. The only exception under “this article” would be carry under §13A-11-73, the Code section allowing concealed carry
    licenses. Again, please forgive me if this has been discussed before.

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    Avtomat wrote:
    Does Ala. Code 1975, §13A-11-52, forbid open carry? Does it allow open carry only if you have a permit/ccw?

    Forgive me if this has been discussed before, but I didn’t see any threads about it. Does anyone believe that Ala. Code 1975, §13A-11-52, effectively forbids open carry on the property of others, which of course would include retail businesses, restaurants, etc.?

    “Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control; but this section shall not apply to any sheriff or his deputy or police officer....”

    This has been interpreted to apply “to the carrying of a pistol on the private property of others-not on any public property.” E.T. v. State, 682 So. 2d 508, 509 (Ala. Crim. App. 1996). If you cannot carry a pistol on the property of others, then you cannot open carry. The only exception under “this article” would be carry under §13A-11-73, the Code section allowing concealed carry
    licenses. Again, please forgive me if this has been discussed before.
    Welcome to OCDO Avtomat!
    I'm not a lawyer nor do I play one on TV but, I have come to the conclusion that OC is legal and that LEO are confused on the subject

    Please see the attached file and offer your input.........
    Attached Files Attached Files

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    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.

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    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    Hey apjonas, take it easy man. The guy is just asking a question, let's not jump all over him.


    Comp-Tech's info is quite current and relevant. I understand there may be a pending case, but that does not change the fact that OC is legal and Comp-Tech is not saying you cannot get arrested for it, he is just providing accurate information on statute and case law.

    I for one do not OC while in Alabama, and will not until the perceptions of LE change. Mainly because I don't have time to deal with an unlawful arrest.

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    Remember he isn't being charged with weapons crimes either. He is being charged with DO....

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    I thought I was moderate, although disapproving, in my tone. It doesn't serve the interest of OCDO for people to spawn new threads for topics already in play. I stand by my description of the summary as outdated and incomplete. The shining jewel is a 1840 AL SupCt decision, which if still valid, would prohibit the requirement of a permit for car carry. This decision allows for essentially unfettered open carry (sans permit) and we know, don't we?, that that is not the situation in Alabama. The fact is that the court spoke to this issue around the turn of the century (19th->20th) and while not a recent decision it is much newer (by at least 60 years than this antique). All of this information is in the other thread, which has the phrase "arrested for open carry." So whether or not there was a DC charge or not, the discussion focused on OC. After all this is not the DisorderlyConduct.org forum. Clearly not a whole lot of people want to challenge the restrictive interpretation because, as you point out, to do so would require personal sacrifice. It is much easier and less risky to pronounce a truth and insist that everyone else subscribe ipse dixit to it .

    kingfish wrote:
    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    Hey apjonas, take it easy man. The guy is just asking a question, let's not jump all over him.


    Comp-Tech's info is quite current and relevant. I understand there may be a pending case, but that does not change the fact that OC is legal and Comp-Tech is not saying you cannot get arrested for it, he is just providing accurate information on statute and case law.

    I for one do not OC while in Alabama, and will not until the perceptions of LE change. Mainly because I don't have time to deal with an unlawful arrest.

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    apjonas wrote:
    It is much easier and less risky to pronounce a truth and insist that everyone else subscribe ipse dixit to it .
    I don't think ipse dixit is the term to use here. For an ipse dixit or Ipsedixitism statement Comp-Tech would have to have said in his very well researched and well written document that instead of the facts, he just would have said "It is leagal to open carry." and we should believe him becouse he said so.

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    apjonas wrote:
    I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    You can't be serious. Time does not make a decision by a court invalid. You could find an 1840 decision that says slavery is ok; however, it is no longer binding not because of how long ago it was but because of the 14th amendment and other case law that would reverse it.



    If you scared to carry due to how old the case law is then that's on you.

    If people want to open carry in Alabama, take cue from Pacific Northwest Open Carry, until then, have fun concealing in 100 degree weather with 100 percent humidity.

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    Jared wrote:
    If people want to open carry in Alabama, take cue from Pacific Northwest Open Carry, until then, have fun concealing in 100 degree weather with 100 percent humidity.
    Do you have any information on "Pacific Northwest Open Carry"? I can't find much I can access here at work.

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    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity?
    Now that's how to welcome a new member!....do you really have to be such a -insert your favorite-?

    The document provided by the second poster is outdated and incomplete.
    Incomplete?.....I wasn't trying to do a disertation on the subject for my masters....just something to get the point accross. Outdated?....How is it outdated since the 1840 AlSupCo opinion has never been challenged?...it just goes to show that the legallity OC has a LONG HISTORY.

    What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending.
    He wasn't arrested for OC.....please check the FACTS before you spew forth......

    If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court.
    Then please wait quietly....without spewing your defeatist BS

    Times and statutes change.
    Correct....CC WAS NOT ALLOWED at all untill 1939 or so....only OC was...and OC has never been "outlawed" in ANY official document that I have seen......can you point me to ONE such document?

    I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    WTF?......in 1840 slavery WAS LEGAL

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    apjonas wrote:
    I thought I was moderate, although disapproving, in my tone. It doesn't serve the interest of OCDO for people to spawn new threads for topics already in play.
    Think again......this is a response to a NEW MEMBER...as to "serving the interest", I can't see much of that in your posts either....you seem to have a defeatist attitude on the matter and have refused/neglected the opportunity to help in a positive way.
    I stand by my description of the summary as outdated and incomplete.
    You may stand on whatever you like....most times it seems to be "soap box" of defeat......thus, your summary is of little import.......
    The shining jewel is a 1840 AL SupCt decision, which if still valid, would prohibit the requirement of a permit for car carry.
    How can it not be valid if it has never been challenged?.......the car wasn't an issue in 1840......
    This decision allows for essentially unfettered open carry (sans permit) and we know, don't we?, that that is not the situation in Alabama.
    While this may not be the "situation"....it certainly seems to be the LAW.......an educational problem IMHO
    The fact is that the court spoke to this issue around the turn of the century (19th->20th) and while not a recent decision it is much newer (by at least 60 years than this antique).
    I'm not sure what case you mean but, the FACT still remains that another case HAS NOT challenged Reid...hence, your point is moot.
    All of this information is in the other thread,
    The Reid case was never mentioned in the other thread........
    which has the phrase "arrested for open carry." So whether or not there was a DC charge or not, the discussion focused on OC. After all this is not the DisorderlyConduct.org forum.
    The OP of the other thread titled it "Arrested for Open Carry" before the man was arrested and, therefor, had no idea as to the actual charge.....
    Clearly not a whole lot of people want to challenge the restrictive interpretation because, as you point out, to do so would require personal sacrifice. It is much easier and less risky to pronounce a truth and insist that everyone else subscribe ipse dixit to it .
    It is also "easier and less risky" to spout defeatist BS which is the path you seem to choose.....please point me to ONE thing of a positive nature that YOU have contributed........

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    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    Actually, a cursory search (looking at the titles of what appears to be only a whopping 17 threads in this entire section) did not reveal a thread specifically discussing this topic. I didn’t think I was beyond the rules of internet forum etiquette in failing to read every topic mentioning the statute at issue, but, out of an abundance of (wasted) caution, I apologized TWICE if my question was a duplicate. But I guess I am an IDIOT.

    I don’t know what other OC case y’all are talking about, but my question was not anticipating that discussion.

    Ala. Code 1975, §13A-11-52, provides:

    “Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control...."

    This statute seems to clearly provide that one cannot “carry a pistol” on “premises not his own.” There is an exception for officers, etc., which does not apply to the average open carrier, and the other exception would be under “this article” (article 3 of chapter 11). Section 13A-11-73 is under article 3, and would be an exception to the general prohibition on carrying a pistol on the premises of another. E.T. v. State, 682 So. 2d at 509-10, states: “To a limited extent, §13A-11-73 does provide an exception to the general prohibition set out in § 13A-11-52; however, this exception is limited to those cases in which a person carries a licensed pistol on the property
    of others.” (Emphasis added.) I don't see anything in any other Code section under article 3 allowing carrying a handgun.

    It would appear that one could not carry a handgun on the property of others except as provided by §13A-11-73, which allows one to carry a handgun “concealed on or about his person....” Thus, it would seem that open carry could be legal in “public,” but not on private property, which is just about everywhere....


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    Read the Document Comp-Tech posted. It will explain.

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    Avtomat wrote:
    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    Actually, a cursory search (looking at the titles of what appears to be only a whopping 17 threads in this entire section) did not reveal a thread specifically discussing this topic. I didn’t think I was beyond the rules of internet forum etiquette in failing to read every topic mentioning the statute at issue, but, out of an abundance of (wasted) caution, I apologized TWICE if my question was a duplicate. But I guess I am an IDIOT.
    Avtomat...YOU are not the idiot here...we all seem to piss in apjonas' Wheaties at times....mainly when we have an opinion of our own...... :celebrate

    I don’t know what other OC case y’all are talking about, but my question was not anticipating that discussion.

    Ala. Code 1975, §13A-11-52, provides:

    “Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control...."

    This statute seems to clearly provide that one cannot “carry a pistol” on “premises not his own.” There is an exception for officers, etc., which does not apply to the average open carrier, and the other exception would be under “this article” (article 3 of chapter 11). Section 13A-11-73 is under article 3, and would be an exception to the general prohibition on carrying a pistol on the premises of another. E.T. v. State, 682 So. 2d at 509-10, states: “To a limited extent, §13A-11-73 does provide an exception to the general prohibition set out in § 13A-11-52; however, this exception is limited to those cases in which a person carries a licensed pistol on the property of others.” (Emphasis added.)
    You need a Pistol License to carry in a vehicle (to get very far from home)....if you have a PL, would that not allow OC on "property of another" since OC is not prohibited by sec 73?

    I don't see anything in any other Code section under article 3 allowing carrying a handgun.
    One thing to remember.....laws are written to PROHIBIT...not to allow.....therefor, if there is no law prohibiting it, it is not illegal.

    It would appear that one could not carry a handgun on the property of others except as provided by §13A-11-73, which allows one to carry a handgun “concealed on or about his person....(and DOES NOT prohibit open carry)” Thus, it would seem that open carry could be legal in “public,” but not on private property, which is just about everywhere....
    It is a "Pistol License"....it allows concealed carry....nowhere in sec 73 does it mandate concealed carry, nor does it prohibit open carry.
    Avtomat...please don't take anything I say as "gospel".....these are just my opinions based on the plain language of the Code of Alabama, the Courts and the AG opinions.......YMMV

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    kingfish wrote:
    Read the Document Comp-Tech posted. It will explain.
    Thanks for the vote of confidence kingfish......we're gonna have this guy in jail quick!:what:


    Avtomat.....please understand that these are my opinions(and others it seems) and OCing in Alabama can still get you unwanted LEO contact of the unfriendly kind.
    Again, IMHO, OC seems to be legal and the issue is the lack of LEO understanding regarding the laws.

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    The 1840 case, Reid, does not address the issue. There, a person was charged with carrying a concealed weapon in violation of an act which was intended "'to suppress the evil practice of carrying weapons secretly,'" by prohibiting one from carrying "'concealed about his person, any species of fire arms, or any Bowie knife, Arkansaw tooth pick, or any other knife of the like kind, dirk, or any other deadly weapon....'"

    The defendant challenged the statute as violating the RKBA in Alabama's constitution, but the Supreme Court did not agree, and upheld the conviction.

    The statement discussing whether one could carry openly was obiter dictum--it was a statement not affecting the decision of the Court, and thus is not law and has no legal consequence.

    In any event, the discussion was in the context of whether a law prohibiting carrying a concealed weapon violated the right to bear arms--the Court held that it did not because, while it was a regulation on the right, it did not wholly forbid it. The Court then speculated that another law forbidding open carry would be unconstitutional because both concealed and open carry would both be barred. The Court stated:

    "We may possibly be told, that though a law of either description may be enacted consistently with the constitution, it would be incompatible with that instrument, to enact laws of both descriptions. But if either, when alone, be consistent with the constitution, which it may be asked, would be incompatible with that instrument, if both were enacted."

    In other words, a prohibition on concealed carry did not violate the RKBA because open carry was legal. The legislature could, under the Court's rationale, forbid one or the other, but not both.

    Applying that rationale today, it is legal to forbid open carry because concealed carry is legal (with a permit). I see nothing in Reid allowing open carry or proscribing a law forbidding open carry, as long as concealed carry is legal (which it is, with a permit).

    PLEASE FORGIVE ME IF THIS HAS BEEN SAID BEFORE


    *none of the above is to be considered legal advice

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    Comp-tech wrote:
    Avtomat wrote:
    apjonas wrote:
    This topic has been extensively discussed. A cursory search of this (Alabama) section would have provided your answer. There was no need to start a new thread. If you have some new angle or information, why not put it into an existing discussion to maintain continuity? The document provided by the second poster is outdated and incomplete. What we do know (at least those of us who took the time to look) is that a person has been arrested for OC and the case is still pending. If you are the adventurous type and have spare time and money, OC to your heart's content. I would rather wait until a (current) definitive decision from the AL Supreme Court. Times and statutes change. I could probably find an 1840 decision that says slavery is okey-dokey in Alabama.
    Actually, a cursory search (looking at the titles of what appears to be only a whopping 17 threads in this entire section) did not reveal a thread specifically discussing this topic. I didn’t think I was beyond the rules of internet forum etiquette in failing to read every topic mentioning the statute at issue, but, out of an abundance of (wasted) caution, I apologized TWICE if my question was a duplicate. But I guess I am an IDIOT.
    Avtomat...YOU are not the idiot here...we all seem to piss in apjonas' Wheaties at times....mainly when we have an opinion of our own...... :celebrate

    I don’t know what other OC case y’all are talking about, but my question was not anticipating that discussion.

    Ala. Code 1975, §13A-11-52, provides:

    “Except as otherwise provided in this article, no person shall carry a pistol about his person on premises not his own or under his control...."

    This statute seems to clearly provide that one cannot “carry a pistol” on “premises not his own.” There is an exception for officers, etc., which does not apply to the average open carrier, and the other exception would be under “this article” (article 3 of chapter 11). Section 13A-11-73 is under article 3, and would be an exception to the general prohibition on carrying a pistol on the premises of another. E.T. v. State, 682 So. 2d at 509-10, states: “To a limited extent, §13A-11-73 does provide an exception to the general prohibition set out in § 13A-11-52; however, this exception is limited to those cases in which a person carries a licensed pistol on the property of others.” (Emphasis added.)
    You need a Pistol License to carry in a vehicle (to get very far from home)....if you have a PL, would that not allow OC on "property of another" since OC is not prohibited by sec 73?

    This is less clear. However, § 13A-11-73 states: "No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license" This Code section only applies to carrying a pistol in a vehicle or concealed on the person. It does not address unconcealed carry. 13A-11-52 does apply to all possession, which includes open carry.

    I don't see anything in any other Code section under article 3 allowing carrying a handgun.
    One thing to remember.....laws are written to PROHIBIT...not to allow.....therefor, if there is no law prohibiting it, it is not illegal.

    well, I meant that in terms of "except as otherwise provided in this article." 13A-11-52 DOES prohibit all possession of pistols on the property of others. The only exception to this blanket prohibition is for officers etc and anything else in article 3, and the only thing I see in article 3 that could be an exception is concealed carry under 73

    It would appear that one could not carry a handgun on the property of others except as provided by §13A-11-73, which allows one to carry a handgun “concealed on or about his person....(and DOES NOT prohibit open carry)” Thus, it would seem that open carry could be legal in “public,” but not on private property, which is just about everywhere....
    It is a "Pistol License"....it allows concealed carry....nowhere in sec 73 does it mandate concealed carry, nor does it prohibit open carry.

    I agree that -73 does not prohibit open carry, but -52 seems to, without a doubt, prohibit all possession of a pistol on the property of others (except for officers etc and anything else in Article 3)
    Avtomat...please don't take anything I say as "gospel".....these are just my opinions based on the plain language of the Code of Alabama, the Courts and the AG opinions.......YMMV
    *none of the above should be considered legal advice

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    Ok, here is a 1911 case - 71 years better than Reid. Now it's your turn to find a newer case.

    Isaiah v. The State.
    SUPREME COURT OF ALABAMA
    176 Ala. 27

    June 30, 1911, Decided

    Jacob Isaiah was convicted of carrying a concealed pistol, and appealed to the Court of Appeals, which certified the constitutional question involved to this court. The following opinion is rendered in response to an application for rehearing in the Supreme Court upon the ruling of said court on the question so submitted. For the decision of the Court of Appeals, see 3 Ala. App. 138, 58 So. 57.

    Carrying Concealed Weapons.
    Weapons; Statutory Provision.--Sections 2 and 5, Acts 1909, p. 258, prohibits a person from carrying an unconcealed weapon on the premises of another, and does not denounce his carrying on the highway or elsewhere other than on such premises, and when considered in connection with section 4, the statute merely prohibits the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state, and hence, is not violative of sec. 26 of the Bill of Rights.


    [/b]
    OPINION BY: ANDERSON

    Section 2 of Acts Special Session 1909, p. 258, says: "It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control," etc. Section 5 provides that the indictment is sufficient if it charges that the defendant carried a pistol "on premises not his own or under his control." This is a criminal statute, and must be strictly construed, and, so construed, it means that a person is prohibited from carrying an unconcealed pistol only upon "premises" not his own or under his control; that is, he may carry it anywhere except upon the premises of another.
    It is therefore a mere regulation as to carrying an unconcealed pistol, and is intended to prevent one person from going armed with a pistol upon the premises of another, and does not prohibit the carrying of same, if not concealed, upon the highway or elsewhere other than upon the premises of another.
    Said section[***3] 2 is not violative of section 26 of the Bill of Rights, as it merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state. Moreover, section 4 of the act authorizes the defendant to give in evidence the fact that he had good reason to apprehend an attack, either in mitigation of the fine or in justification of the offense.
    DOWDELL, C. J., and SIMPSON, SAYRE, and SOMERVILLE, JJ., concur in the opinion. MCCLELLAN and MAYFIELD, JJ., concur in the conclusion.
    CONCUR BY: McCLELLAN

    CONCUR

    [*29] McCLELLAN, J.--The response the court should, in my opinion, make to the inquiry submitted by the Court of Appeals is set forth in the following opinion, delivered for the court on original consideration:
    The certification of the Court of Appeals submits this question: "Is the provision of section 2 of the act to regulate the right to carry a pistol in this state, approved August 26, 1909 (General and Local Acts Special Session 1909, p. 258), violative of section 26 of the Constitution of the state of Alabama. 'That every citizen has a right to bear arms in defense of himself and the state'?" The first and second[***4] sections of that act read:
    "Section 1. Be it enacted by the Legislature of Alabama, that it shall be unlawful for any person to carry a pistol concealed about his person.
    "Sec. 2. It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control, provided this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office or United States marshal or their deputies, rural free delivery mail carriers in the discharge of their duties as such or bonded constable in the discharge of their duties as such."
    Section 4 of the act, which has reference to the offenses created by sections 1 and 2, provides:
    "Sec. 4. The defendant may give evidence that at the time of carrying the pistol he had good reason to apprehend an attack which the jury may consider in mitigation of the fine or jurisdiction of the offense."
    Section 1 prohibits the carrying of a pistol concealed, about the person, at any time and everywhere. With exceptions in favor of the officials designated therein, section 2 restricts the carrying "of a pistol about his [*30] person[***5] on premises not his own or under his control." The restriction of this section 4 is territorial only. It is not absolute, as is evident. Indeed, where there is "good reason to apprehend an attack" at the time of carrying the pistol, the enactment renders that fact admissible in evidence, and this "the jury may consider in mitigation of the fine or jurisdiction of the offense." The restriction is of the carrying of one instrument one weapon, namely, the pistol. It is not, of course, directed against any other weapon. Hence any argument or contention predicated upon a general prohibition against the bearing of all arms is inapt on the consideration of the inquiry submitted by our Brothers of the Court of Appeals. Nor is there just force or application in the suggestion of counsel for appellant that the approval of the constitutionality of section 2, [**55] thereby justifying the restriction of the right to carry a pistol to one's own premises or to premises under one's control, may sanction, if not invite, legislative restrictions, periodically created, whereby all arms might be forbidden to be borne in this state. To this suggestion we adopt the response, to a like suggestion, [***6] of Justice Walker in Dorman v. State, 34 Ala. 216, 245, when he said: "We do not perceive the force of the argument, that, if this act is sustained as constitutional, the General Assembly may, at different times and under various pretenses, pass similar laws, until the entire area of the state is covered by enactments prohibiting the sale of this species of property. If such general prohibition would be unconstitutional, we are bound to presume that the Legislature will never attempt it. But it is sufficient to say that the General Assembly has not, in fact, done what is suggested it may hereafter do. We are here to decide actual, not possible cases. All that we can or ought to do is to determine whether this particular [*31] law is constitutional. We are certainly not prepared to hold that a Legislature shall not exercise a constitutional power to any extent, because some succeeding General Assembly may exercise it beyond the proper limit. That would be to say that a lawful power must not be used at all, because it may be abused."
    Section 26 of the organic law provides: "That every citizen has a right to bear arms in defense of himself and the state." This clause[***7] of the Bill of Rights has had place in each of the several Constitutions of this state, from its admission in the Union. By the second amendment to the Constitution of the United States, it was added to that instrument that: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This amendment, however, has been ruled to be a restriction operative only upon the federal power.-- Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812. The clauses quoted from our Constitutions, from the beginning, have been ascribed, in suggestion of incorporation therein, to the Bill of Rights formulated by the Parliament, in 1688, as conditions to the recognition and installation of William and Mary as the reigning sovereigns, after the flight of James II, whose assumptions of authority and power were deemed violative and subversive of the liberties of the people of England, chief among which subjects of abuses was that of the Protestant religion.--9 St. at Large, 1 William and Mary, p. 67 et seq. To circumscribe the power of the sovereign, and to render more secure from invasion the rights[***8] involved, consistent with the favor with which William and Mary viewed the rights of at least a class of their subjects, the Bill of Rights subscribed by them contained, among other declarations, this: "That the subjects which are Protestants may bear arms for [*32] their defense, suitable to their conditions, and as allowed by law." This feature of the declaration of rights was a response to the unwarranted action, imputed to James II, of "causing several good subjects, being Protestants, to be disarmed at the same time when Papists were both armed and employed, contrary to law," and of levying money, raising a standing army, and quartering the same in violation of law. It thus appears that the right to bear arms inhered in the people, though qualified, in instances, to religious classes favored by the sovereign. From the particular clause of the Bill of Rights subscribed by William and Mary, it appears to have been expressly provided that the right to bear arms should be subject to legislative treatment, necessarily implying its regulation, if not more.
    Our organic law declares the right of the citizen to bear arms in defense of self and the state, but omits any express reference[***9] of the subject to legislative action. But this omission is not important in any sense, because, with us, the Constitution is deemed an instrument of limitation of power, not a grant thereof. So viewed, it was entirely consistent for this court, in State v. Reid, 1 Ala. 612, 35 Am. Dec. 44, to hold that the affirmance in the Constitution of the right to bear arms was a limitation on legislative power to deny that right, but that, in phraseology and in the evil intended to be remedied, the clause declaring the right did not, expressly or impliedly, inhibit the Legislature from the regulation of the exercise of the right--in that instance, the manner of carrying certain weapons. In Reid's Case it was said: "The question recurs: Does the act, 'to suppress the evil practice of carrying weapons secretly,' trench upon the constitutional rights of the citizen? We think not. The Constitution, in declaring that 'every citizen has the right to bear arms in defense of [*33] himself and the state,' has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to[***10] the citizen is not to bear arms upon all occasions and in all places, but merely 'in defense of himself and the state.' The terms in which this provision is phrased seem to us necessarily to leave with the Legislature the authority to adopt such regulations of police as may be dictated by the safety of the people and the advancement of public morals. The statute of 1 Wm. & Mary, while it declares the right of the subject, it refers to Parliament to determine what arms shall be borne and how (italics supplied); while our Constitution, being silent as to the action of the Legisalture, does not divest it of a power over the subject, which pertained to it independent of an express grant. We do not desire to be understood as maintaining that, in regulating the manner of bearing arms, the authority of [**56] the Legislature has no other limit than its own discretion. A statute which, under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purposes of defense, would be clearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression[***11] and violence, and to that end inhibits the bearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the bearer, by making him less regardful of the personal security of others, does not come in collision with the Constitution."
    Since the pronouncement in Reid's Case, the clause under consideration has been reordained, and comes now to our hands for interpretation, as affecting the validity of the second section of the act approved [*34] August 26, 1909, prohibiting the carrying of a pistol off his premises, or those under his control, impressed with the construction put upon the clause by this court in Reid's Case. The Legislature thus having the right to regulate the exercise of the right to bear arms in defense of self and the state, the inquiry is: Is section 2 of the act in hand a regulation merely, or is it a prohibition of the right stated? Such is conceded by appellant's counsel to be the real question. In Reid's Case the motive for a regulation of the right to bear arms is said to prevail in the "safety of the people and the advancement of the public morals." Given the right to regulate, [***12] implying as of course the denial of the prerogative to destroy, even in the guise of regulation, the declared right, necessarily the Legislature possesses the power and the province to determine what enactments will conserve, in this respect, the safety and morals of the people of the state; the sole province of the courts being to decide, when so invited, whether the action taken in assumed regulation of the constitutional right to bear arms is in fact an unwarranted invasion of the right to the extent that it is impaired, not merely regulated.
    In this instance the Legislature has determined, presumably upon the idea of conservation of the public interest and welfare, that to carry a pistol off one's premises, or off those under one's control, is inimical to such interest and welfare, and so prohibits it. To justify this court in pronouncing this phase of the act violative of the constitutional right to bear arms, the obligation is on its assailant to show, to requisite certainty, that the prohibition is not a regulation, but an infraction of the broader right to bear arms. The "safety of the people and the advancement of public morals" is certainly a latitudinous qualification[***13] for the exercise of the right [*35] to regulate a constitutional right; but it prevails, as before stated, to influence the interpretation of section 26.--Reid's Case, supra. Had it not been so intended of approval, as reflecting the purpose and effect of section 26, later Constitutions would have written in the instrument in denial of it.
    Within the general inquiry, which appellant's counsel concede is whether the restriction of section 2 is a regulation or a prohibition of the constitutional right to bear arms, is the specific one, to decide which determines the constitutional validity of section 2, viz.: Is the areal restriction of the right to carry a pistol, to premises owned and controlled by a person, a prohibition of the exercise of the constitutional right to bear arms, or, conversely, is it a regulation of that right?
    We have been referred to numerous adjudications in other jurisdictions touching, or determinative of, phases of the concrete question in hand. Many of these may be found in the notes to Salina v. Blaksley, reported in 115 Am. St. Rep. 196, 199, and in 3 L.R.A. (N.S.) 168-170, and in the notes to In re Brickey, 1 Ann. Cas. 55,[***14] and in Ex parte Thomas, 17 Ann. Cas. 566-571. There is wide and fundamental divergence of opinion upon the scope and effect of constitutional provisions declaring the right involved. We have profited by their general discussion, and have formed our response to the concrete question last stated in the light of their learning, and in obedience to the effect, in constitutional intent, of the decision of this court in Reid's Case, supra, after which section 26 has been several times reordained.
    In order to hold that section 2 is violative of the constitutional right to bear arms it must, of necessity, be affirmed that there is no legislative power to prescribe places within the state whereat arms may not be borne. Yet it would seem to be beyond any semblance of doubt [*36] that that body might validly forbid the bearing of arms of any and every description into the presence of courts of justice ( Hill v. Ga., 53 Ga. 472), or to churches or other public assemblages ( Andrews v. State, 3 Heisk. [Tenn.] 165, 8 Am. Rep. 8, 15). Upon like principle of legislative regulation of the right to bear arms, a statute of the state[***15] of Ohio, forbidding a "tramp" to carry a firearm or other dangerous weapon, was pronounced a valid regulation.-- State v. Hogan, 63 Ohio St. 202, 58 N.E. 572, 52 L.R.A. 863, 81 Am. St. Rep. 626. Indeed, it was there pointed out that, at common law, it was an offense to go "armed with unusual and dangerous weapons to the terror of the people." See State v. Huntly, 25 N.C. 418, 40 Am. Dec. 416. In each of the three instances mentioned, the legislative restriction, or the common-law restraint, qualified the general right to bear arms, and still did not impair the right, but regulated its enjoyment. If the general right to bear arms may be qualified--regulated--in these respects, can it be soundly declared that the restriction of the right of one to carry a pistol about his person, to premises owned or controlled by him, is an infraction of the constitutional right to bear arms?
    [**57] In Reid's Case, supra, it was said that "the right guaranteed to the citizen is not to bear arms on all occasions and in all places, but merely in defense of himself and the state." The only objective of the right guaranteed is protection--defense. To impair it the[***16] enactment assailed must qualify, beyond proper regulations of police, the ability to avail of the objective of the constitutional guaranty. The Legislature, to which is committed the establishment of regulations of police, are authorized to control the exercise of the constitutional right with such regulations "as may be dictated by the safety of the people and the advancement of public [*37] morals." These wholesome desires of a well-ordered civilization have, as experience has proven, no more certain or persistent obstacle than that afforded by the readily worn pistol. Such a practice has brought, after trial, the conviction that it is among the chief sources of an homicidal record that all but appalls. Consistent with the common knowledge on the subject, it cannot be doubted that the motive for the enactment of section 2 is traceable to the legislative intent to conserve the safety of the people and to advance the public morals by averting as far as may be the carrying about the person, away from the places described, of an instrument so associated with the destruction of the public peace and welfare. The inhibition leaves the weapon to be carried, openly, upon the places prescribed. [***17] He is thereby forbidden to carry the weapon, even openly, upon the highways, at public assemblages, or elsewhere than as is prescribed. That the disappearance of the pistol from such places as we have indicated would tend to the safety of the people, to the welfare of all, and to the advancement of the public morals, cannot be gainsaid.
    The Legislature, to whom the Constitution commits the right to regulate, in the interest of the public weal, the enjoyment of the major right to bear arms in defense, has expressed its judgment in section 2 by the restriction of the carrying of one weapon to a limited, yet intimately associated with the citizen, area, namely, his own, or controlled, premises. There the weapon is available to his defense. Elsewhere, every other weapon of defense may be openly borne. To deny the validity of section 2 would, without doubt, restrict the legislative right to regulate, as broadly declared in Reid's Case, to the manner only of bearing arms; and this would clothe the constitutional right to bear arms with an effect to deny to legislative function the power to determine, [*38] without destroying the major right, what are arms proper[***18] to be borne, within the constitutional guaranty, or to decide, in the interest of the public safety and welfare and as a regulation, at what places arms of a defined character should not be borne. This we cannot affirm, in the light of the pertinent statements, before quoted from Reid's Case. Accordingly, we are constrained to hold that section 2 is not violative of section 26 of the Constitution, and, hence, to answer the submitted question in the negative.
    Counsel for appellant propound a number of supposititious cases, with the view to the demonstration of the invalidity of section 2. Some of them lead only to the administrative phases of the law, and not to its unconstitutionality. It is strongly urged that section 2 would prevent the carrying, by an owner, of a pistol from his home or premises to his place of business across, therefrom, a highway. The suggestion this illustration makes is not referable to the right to bear arms, but to the restriction upon the enjoyment of the property right the owner has in the pistol he would carry from his home to his place of business--a manifestly different matter from the guaranty of section 26. Property rights are[***19] held subject to the proper exercise, by the state, of the police power. That section 2 of this act unwarrantably invades, or would invade, a property right, or the enjoyment of property, is not urged; and, if so it were, it would be clearly unsound and unavailing to avoid section 2 of this act.


  19. #19
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    Avtomat wrote:
    The 1840 case, Reid, does not address the issue. There, a person was charged with carrying a concealed weapon in violation of an act which was intended "'to suppress the evil practice of carrying weapons secretly,'" by prohibiting one from carrying "'concealed about his person, any species of fire arms, or any Bowie knife, Arkansaw tooth pick, or any other knife of the like kind, dirk, or any other deadly weapon....'"

    The defendant challenged the statute as violating the RKBA in Alabama's constitution, but the Supreme Court did not agree, and upheld the conviction.

    The statement discussing whether one could carry openly was obiter dictum--it was a statement not affecting the decision of the Court, and thus is not law and has no legal consequence.
    WTF...here we go with the friggin Latin again....using legal terms doesn't impress any greater understanding of the issue upon you....understanding the plain written word is sufficient.
    I never made any claim that the quoted section from Reid was part of the decision....it WAS, however, a part of the courts understanding of the law and the Constitution......it was part of what led them to the decision that they made.......how can it not have ANY "legal consequence"?

    In any event, the discussion was in the context of whether a law prohibiting carrying a concealed weapon violated the right to bear arms--the Court held that it did not because, while it was a regulation on the right, it did not wholly forbid it. The Court then speculated that another law forbidding open carry would be unconstitutional because both concealed and open carry would both be barred. The Court stated:

    "We may possibly be told, that though a law of either description may be enacted consistently with the constitution, it would be incompatible with that instrument, to enact laws of both descriptions. But if either, when alone, be consistent with the constitution, which it may be asked, would be incompatible with that instrument, if both were enacted."

    In other words, a prohibition on concealed carry did not violate the RKBA because open carry was legal. The legislature could, under the Court's rationale, forbid one or the other, but not both.

    Applying that rationale today, it is legal to forbid open carry because concealed carry is legal (with a permit). I see nothing in Reid allowing open carry or proscribing a law forbidding open carry, as long as concealed carry is legal (which it is, with a permit).
    It could be interpreted that way but, SCOTUS has ruled in several cases that a right cannot be abrogated away nor can it be licensed or taxed etc.
    ....now, if OC was "forbidden"....there could be NO LAWS CONTROLLING CONCEALED CARRY as they would be unconstitutional........one way or the other, OC or CC, must remain UNINHIBITED to remain constitutional.


    PLEASE FORGIVE ME IF THIS HAS BEEN SAID BEFORE


    *none of the above is to be considered legal advice

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    apjonas wrote:
    Ok, here is a 1911 case - 71 years better than Reid. Now it's your turn to find a newer case.

    "Younger" doesn't make it better.....Isaiah only proves my point that the opinion in Reid has not been challenged...hell, they even quote Reid.
    I'm not in any sort of contest with you or anyone else....Isaiah was the "newest" case that I've seen as well and BOTH go to prove that OC was legal at that time.....since neither has been overturned, does that not tell you something?


  21. #21
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    Avtomat wrote:
    Comp-tech wrote:
    This statute seems to clearly provide that one cannot “carry a pistol” on “premises not his own.” There is an exception for officers, etc., which does not apply to the average open carrier, and the other exception would be under “this article” (article 3 of chapter 11). Section 13A-11-73 is under article 3, and would be an exception to the general prohibition on carrying a pistol on the premises of another. E.T. v. State, 682 So. 2d at 509-10, states: “To a limited extent, §13A-11-73 does provide an exception to the general prohibition set out in § 13A-11-52; however, this exception is limited to those cases in which a person carries a licensed pistol on the property of others.” (Emphasis added.)
    You need a Pistol License to carry in a vehicle (to get very far from home)....if you have a PL, would that not allow OC on "property of another" since OC is not prohibited by sec 73?

    This is less clear. However, § 13A-11-73 states: "No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license" This Code section only applies to carrying a pistol in a vehicle or concealed on the person. It does not address unconcealed carry. 13A-11-52 does apply to all possession, which includes open carry.
    Correct...it DOES NOT PROHIBIT OC
    Please download and READ the cases that are cited in the posted "document"....maybe they will explain how sec 52 & 73 interact better than I can......52 "must be consistent" with 73

    I don't see anything in any other Code section under article 3 allowing carrying a handgun.
    One thing to remember.....laws are written to PROHIBIT...not to allow.....therefor, if there is no law prohibiting it, it is not illegal.

    well, I meant that in terms of "except as otherwise provided in this article." 13A-11-52 DOES prohibit all possession of pistols on the property of others. The only exception to this blanket prohibition is for officers etc and anything else in article 3, and the only thing I see in article 3 that could be an exception is concealed carry under 73
    Section 73 prohibits concealed carry WITHOUT a pistol license......there is NO MANDATE that one MUST conceal, it mearly allows it....there is also NO PROHIBITION of open carry in 73

    It would appear that one could not carry a handgun on the property of others except as provided by §13A-11-73, which allows one to carry a handgun “concealed on or about his person....(and DOES NOT prohibit open carry)” Thus, it would seem that open carry could be legal in “public,” but not on private property, which is just about everywhere....
    It is a "Pistol License"....it allows concealed carry....nowhere in sec 73 does it mandate concealed carry, nor does it prohibit open carry.

    I agree that -73 does not prohibit open carry, but -52 seems to, without a doubt, prohibit all possession of a pistol on the property of others (except for officers etc and anything else in Article 3)
    Again...please see the cases cited in the "document".....in a nutshell, it is said that if you have a pistol license, sec 52 doesn't apply to you.....remember "EXCEPT AS OTHERWISE PROVIDED"?......think about it this way: you have a pistol license and carry a pistol in your car....now, when you stop to get gas, are you on "the property of another"?...what about the parking lot at the grocery store?...the home center?.....of course you ARE on "the property of another".....are you breaking the law under section 52?.....NO, because the state has given you permission under sec 73 to carry a pistol anywhere and anytime within the state that is not directly forbidden by The Code of Alabama.
    Avtomat...please don't take anything I say as "gospel".....these are just my opinions based on the plain language of the Code of Alabama, the Courts and the AG opinions.......YMMV
    *none of the above should be considered legal advice

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    kingfish wrote:
    Jared wrote:
    If people want to open carry in Alabama, take cue from Pacific Northwest Open Carry, until then, have fun concealing in 100 degree weather with 100 percent humidity.
    Do you have any information on "Pacific Northwest Open Carry"? I can't find much I can access here at work.
    Sure, go to groups.yahoo.com and type in the name Pacific Northwest Open Carry. The founder is Lonnie Wilson, he frequents this site.

    He has gotten numerous cities in Oregon and Washington to go from the police drawing down on you for open carry to recognizing your legal right to open carry (some towns in Oregon you must have a CHL to open carry as per ORS 166.173)

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    A newer case or statute, even if it does not expressly overturn a prior one, will trump the older one in case of conflict. This is a legal axiom. The fact that Reid was quoted doesn't mean squat by itself. What matters is what was said about Reid. If you cannot pick out the change that occurred in Isaiah, then I cannot help you. It is blatantly obvious. I can only assume some people just don't want to know. If you understand what is said in Isaiah , apply it to later statutes and understand statutory construction you will see that the possession of a license permits the holder to do two things that are otherwise illegal. (1) Carry a pistol in a vehicle (normally illegal even if unconcealed) and (2) Carry a concealed pistol. This section does not address the prohibition about carrying on the property of another. Again, the rules of statutory construction demand that force be given to different code sections if at all possible. It is possible.

    If you do not have a license you may carry openly EXCEPT on the property on another or in a vehicle. If you have a license you may carry openly or concealed (even in a vehicle) EXCEPT on the property of another. Property of another does NOT include the public street, parks, government buildings (although there may be another law that prohibits carry - I just don't know). This distinction is clearly made in Isaiah. I understand that you wish it were otherwise. As I said initially, unless and until the Alabama Supreme Court rules one way or the other it is impossible to say with absolute certainty but I think my analysis is sound. In the mean time we are stuck with various appeals decisions and the personal interpretation of the local LEO.



    Perhaps this analogy will be helpful.

    1. It is illegal to drive on the sidewalk.

    (It is illegal to carry a pistol on the property of another)

    2. A HAZMAT endorsement permits you to haul hazardous materials.

    (A pistol license permits you to carry in a vehicle or concealed)

    3. Therefore a HAZMAT endorsement permits you to drive on the sidewalk.

    (Therefore a pistol license permits you to carry on the property of another)

    The conclusion is obviously false.



    Comp-tech wrote:
    apjonas wrote:
    Ok, here is a 1911 case - 71 years better than Reid. Now it's your turn to find a newer case.

    "Younger" doesn't make it better.....Isaiah only proves my point that the opinion in Reid has not been challenged...hell, they even quote Reid.
    I'm not in any sort of contest with you or anyone else....Isaiah was the "newest" case that I've seen as well and BOTH go to prove that OC was legal at that time.....since neither has been overturned, does that not tell you something?

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    apjonas .......

    I am done replying to any more of your blah, blah this and blah, blah that BS diatribes on what this should mean or that should mean by relation to HazMat or other such references.....I will continue to read what the courts have decided and what the laws in code prohibit....and DO NOT PROHIBIT
    How can you be so adament that a PL DOES NOT allow carry on "property of another" when the state has given permission to carry concealed?......am I to leave my pistol on the edge of the street when I stop to buy gas?....to grocery shop? (both "property of another")......if I am licensed to carry, I have the right to carry anywhere that is not prohibited by code or "...personally communicated to me by the owner..." ....simple as that.
    From the code....
    A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person

    Untill you can show something IN CODE or in a RELEVANT COURT DECISION, you are no more than wasting my, and other members time.....

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    Actually. From my understanding of the code, as interpreted by court decisions and such, is that is is currently illegal to carry on another's private property even if you have a pistol permit.

    The only reason this has probably never really gone to court is:

    1. People with pistol permits generally carry concealed, so nobody knows when they are 'breaking the law' by carrying onto private property not under their control.

    2. It isn't really illegal to carry onto private property.

    My guess is that it's the first one, and most of the time it's a "don't ask don't tell" type of thing.

    Ridiculous, I know.

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