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Thread: my analysis of why OC is legal at the University of Utah

  1. #1
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    I wrote this a while ago, but decided it'd be good to post on here for reference and to let you legal eagles take a crack at it and tell me where my analysis is flawed or where it might be strengthened by highlighting other points:

    I’d like a chance to explain why I maintain that it is already legal to open carry in most parts of the state, including the University campus as long as you have a 53-5-704 permit (a.k.a. CWP). Utah Code Title 76 Chapter 10 contains "Offenses Against Public Health, Safety, Welfare, and Morals." Most of the sections dealing with weapons or firearms aren't relevant to the current open carry debate, but I'll list them here just to be thorough. They prohibit carrying a firearm or weapon under the following conditions: concealed (504), loaded (505), on or about school premises (505.5), with intent to assault (507), by minors (509), while under the influence of alcohol or a controlled substance (528), within a secure area of an airport (529), or in a house of worship or private residence after notice has been given (530).

    In case you didn't catch it the first time, 76-10-504 prohibits "a person without a valid concealed firearm permit" from carrying a concealed weapon, and 76-10-505 says "unless authorized by law, a person may not carry a loaded firearm," but there's no law against carrying an unconcealed, unloaded firearm (a.k.a. open carry). This nation is ostensibly still a free land, which means that if there's not a law against doing something (like carrying an unconcealed, unloaded firearm), we use a certain word to describe that action. We call it "legal." That, boys and girls, is why open carry is legal in most parts of the state.

    The University of Utah falls under a special circumstance addressed in 76-10-505.5, so let's examine that section closely. The law says:

    (1) A person may not possess any dangerous weapon, firearm ... at a place that the person knows, or has reasonable cause to believe, is on or about school premises ...

    (2) … (b) Possession of a firearm … on or about school premises is a class A misdemeanor.

    (3) This section does not apply if: (a) the person is authorized to possess a firearm as provided under Section 53-5-704, 53-5-705, 76-10-511, or 76-10-523, or as otherwise authorized by law; ...

    Does anyone remember which section of Utah Code authorizes CWP? 53-5-704. And 76-10-505.5 clearly states that "this section does not apply if the person is authorized to possess a firearm as provided under Section 53-5-704," so there you have it. It's as plain as the nose on your face. There is no law that says I can't "possess any ... firearm ... on or about school premises" (notice there's no mention of concealed vs open here) as long as "the person is authorized to possess a firearm as provided under Section 53-5-704."

    An astute person might ask what exactly 53-5-704 "authorizes." I know I did. 53-5-704 (1)(b) states "The permit is valid throughout the state for five years, without restriction, except as otherwise provided by Section 53-5-710." I can just imagine the glimmer in John Morris' eyes, "Aha! So there are restrictions!" Yes, but none that will give the U a legal leg to stand on. I'll let you continue farther down the rabbit hole unassisted, but (sorry to ruin the surprise) is all you'll find is a narrowly-tailored exception that allows the University of Utah to create a single secure area for a hearing room.

    "Throughout the state" and "without restriction" are strong words, but still, I'm willing to concede the point if and when someone can answer one simple question for me: Exactly which law would I be violating by open carrying on campus? If you can tell me under which title, chapter, and section of Utah Code I'd be convicted, I'll drop the whole matter right now. Any takers? President Young graduated from Harvard Law School, Fred Esplin was a White House intern, John Morris is a real live lawyer, and even Dear Leader Spencer Pearson wrote a touching letter about how bad HB 473 is. All these people are clearly much smarter than I am, so I’m hoping that at least one of them can answer my simple question. Just to be on the safe side though, until that little question is answered, please quit pretending that the U has authority to prohibit open carry on campus.

    So that's it. What do you guys think? IANAL, so friendly critiques or probing questions are welcome and encouraged.

  2. #2
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Well, they flat out need to be sued again.

  3. #3
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    SecondAmendmentStudents wrote:
    <snip>

    In case you didn't catch it the first time, 76-10-504 prohibits "a person without a valid concealed firearm permit" from carrying a concealed weapon, and 76-10-505 says "unless authorized by law, a person may not carry a loaded firearm," but there's no law against carrying an unconcealed, unloaded firearm (a.k.a. open carry). This nation is ostensibly still a free land, which means that if there's not a law against doing something (like carrying an unconcealed, unloaded firearm), we use a certain word to describe that action. We call it "legal." That, boys and girls, is why open carry is legal in most parts of the state.

    <snip>

    (3) This section does not apply if: (a) the person is authorized to possess a firearm as provided under Section 53-5-704, 53-5-705, 76-10-511, or 76-10-523, or as otherwise authorized by law; ...
    <snip>
    Agreed - most OC is only "legal" because it's not spelled out as illegal.

    The term in bold above AUTHORIZED BY LAW is subject to interpretation, but it appears verbatim in two different code sections. Without a definition by the legislature, the interpretation must be applied equally under both statutes.

    If you interpret "authorized by law" to mean anything that the law specifically says you're allowed to do, then clearly the discussion is over.

    If you interpret "authorized by law" to mean protected by ANY law (with jurisdiction), what about the constitution & 2nd amendment? Bear arms shall not be infringed. Therefore, the 2nd amendment, as law, authorizes you to bear arms.

    Last, if you interpret "authorized by law" to mean "anything you're allowed to do without committing a crime", then the normal OC argument fits nicely.

    Consider, there is no law permitting or outlawing breathing, so am I authorized to breathe?

    Devils advocate...Rights are protected, but is the exercise of a right an activity authorized by law, or merely not infringed upon by law?

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