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Thread: Open Carry in Mississippi

  1. #1
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    I understand that residents of Mississippi can keep and bear in their homes and vehicles anyway they want. I also understand that for concealed carry one needs a CC permit. I have a few questions in light of the following code constitution snippets:


    Mississippi Constitution, Bill of Rights

    SECTION 12.
    The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.



    Mississippi Law Sec. 97-37-1 (2) states "It shall not be a violation of this section for any person over the age of eighteen (18) to carry a firearm or deadly weapon concealed in whole or in part within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle".



    This is in the concealed carry law Section 45-9-101.

    18)

    Nothing in this section shall be construed to require or allow the registration, documentation or providing of serial numbers with regard to any firearm. Further, nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in Section 97-37-1, Mississippi Code of1972


    ยง 97-37-1. Deadly weapons; carrying while concealed; use or attempt to use; penalties.


    (1)

    Except as otherwise provided in Section 45-9-101, any person who carries, concealed in whole or in part, any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length....


    I take all the Miss. Code and AG opinions to mean this:

    I can keep and bear any legal firearm anyway I want in my house, business, property or vehicle a pistol or shotgun or rifle, etc.

    If I want to carry on my hip or completely hidden, a pistol, I need a Concealed Carry Permit, this due to MS Supreme Court ruling a pistol in a holster is considered concealed in part, even if suspended by a string, in spite of the CC law not authorizing open carry.

    If I strap a shotgun or rifle across my back, I can carry openly because it can't be technically concealed by the Mississippi code.


    So finally here's the questions:



    1)Is a motorcycle considered a motor vehicle? and what is considered to be "within any motor vehicle" mean? In other words a pistol must be in a saddlebag, etc?

    2)Would not, according to the code, a shotgun or rifle be completely legal to open carry?


    Does this about sum the situation up. Is this what the laws/code mean? So I can't carry a pistol on my hip without a CC permit, but I can walk down the street with an AK-47 strapped to my back and thats legal. How funny!

    Oh...btw...I don't recommend anyone try the above satirical/hypothetical situation even though it would appear to be legal!!

    Beware these laws don't apply to the Natchez Trace Federal Parkway.

    If you will be traveling on the Natchez Trace Federal Parkway, please contact them directly at (662)842-1572 for their rules & regulation on transporting your firearm.

    And also be careful having your weapon loaded during deer season in your vehicle, if its loaded its considered "prima facie" evidence of road hunting!

    Mississippi has some conflicts in the laws/code in my opinion.

    Comments?





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    I'm no lawyer but, I would seem that you can only "bear" ,according to the MS

    Constitution, a rifle over 16 inch barrel and a shotgun over 18 inch barrel.

    I.E open carry as the law is currently interpreted.

    As to being clear, I don't think the authorities want to be clear.

    The easiest way out of this would be to drop the concealed "in part".

    Then you could carry openly a pistol, shotgun, rifle like the state constitution clearly

    grants. If you have it completely concealed get a carry permit.

    Also the Mississippi Code allows you to carry concealed temporarily even without

    a permit if you fit into one of these definitions:

    Code:
    97-37-9. Deadly weapons; defenses against indictment for carrying deadly weapon.
    
    Any person indicted or charged for a violation of Section 97-37-1 may show as a defense:  
    
    (a) that he was threatened, and had good and sufficient reason to apprehend a serious attack from any enemy, and that he did so apprehend; or  
    
    (b) that he was traveling and was not a tramp, or was setting out on a journey and was not a tramp; or    
    
    (c) that he was a law enforcement or peace officer in the discharge of his duties; or  
    
    (d) that he was at the time in the discharge of his duties as a mail carrier; or  
    
    (e) that he was at the time engaged in transporting valuables for an express company or bank; or  
    
    (f) that he was a member of the Armed Forces of the United States, National Guard, State Militia, Emergency Management Corps, guard or patrolman in a state or municipal institution while in the performance of his official duties; or  
    
    (g) that he was in lawful pursuit of a felon; or  
    
    (h) that he was lawfully engaged in legitimate sports; or  
    
    (i) that at the time he was a company guard, bank guard, watchman, or other person enumerated in Section 97-37-7
    In closing,

    It appears to me that you can do what you want with any gun in your house, car or

    business. You can carry concealed without permit if engaged in any of the above. If
    you carry a pistol concealed in whole or part you need a CC. Finally, if its a shotgun

    or rifle you can carry openly, at least according to the MS Constitution, Bill of Rights.

    I don't know how the law enforcement would react to you having a shotgun or rifle s

    slung over your back and traveling about doing your normal business. I don't think

    its a big deal if someone did, it would be kinda like walking around a gun show,

    except in public. In my opinion exactly as it should be in light of the MS Constitution

    and in light of the Second Amendment of the US Constitution.




    btw...look at the defenses I highlighted in green. Those could be used in a lot of

    different ways to defend yourself from a charge of carrying a concealed weapon,

    rendering the law practically irrelevant. But, you may have to go to court to prove it.


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    I agree that the right in the MS Constitution is clear. But that same sentence gives

    the legislature the right to regulate "concealed". So it doesn't trump the legislature.

    That doesn't make any sense though that only public carry is possible with a

    concealed carry permit as it does not permit open carry...it says right in the act

    creating the law. A rifle or shotgun can't be concealed...It's right there in the code

    and can't be considered concealed.

    Look at the definition of concealed...if its not within those bounds it won't fly in

    court.



    any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length....


    again the easiest way out would be the legislature to change the lanquage and drop " or in

    part". Then it would be as it should be.

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    mark edward marchiafava wrote:
    Yea, Mississippi does have some conflicting info/laws/opinions.ย* I just can't get a straight answer to a very simple question.
    If the constitution, sec 3 article 12, guarantees the right to bear arms, that is not to be confused with the privilege of carrying concealed. If they consider a hip mounted, holstered sidearm as "partially concealed," just how do you exercise the right of bearing arms in the Magnolia state?
    Mark has had some very bad experiences carrying I LA. I have also heard other terrible stories of the deep south and especially rural southern counties.

    It is good you know the law. Please be careful exercising your rights as things can go bad fast. Just ask Mark.

    If I carry in the deep south, I make sure my permit is honored and I keep it concealed.

    Tarzan

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    Like I said, I'm no lawyer, but as a former FFL holder, I read alot about the rules and

    regulations when I did sell guns and I still keep up with it the best I can.

    I have a concealed carry permit btw and If you're in your car traveling you don't

    need one anyway. I just wish they would clarify the damn thing and not leave it to

    the individual cop, some of whom are idiots. I had a guy tell me about a cop trying

    to take his Class 3 weapon after someone complained of the automatic fire they

    heard, and being really embarrassed to find out it was legal

    and he looked like a fool.



    BTW...Are there any lawyers from Mississippi who can clarify the motorcycle question
    in regards to motor vehicle and also as to whether a long gun (shotgun, rifle) can

    be considered concealed? Maybe one of our legislators could ask the question.

    The AG office/Courts sure hasn't clarified it

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    Here is an OCDO "opinion" on open carry in MS - it should be posted to the MS main page shortly.

    --

    SUBJECT: OpenCarry.org Opinion 2007-1: May aperson holding a holding a License to Carry a Concealed Pistol or Revolver open carry a handgun in a holster in plain sight in Mississippi?

    Short answer: Yes.

    Discussion: Miss. Code ยงยง 97-37-1 & ยง45-9-101 operate together to ban carriage ofa handgun "concealed in whole or in part" unless the carrier is inside a motor vehicle or possesses a License to Carry a Concealed Pistol or Revolver. The courts of Mississippi have held that a handgun in a holster, though openly carried, is concealed "in part" within the meaning of Miss. Code ยงยง 97-37-1 & ยง45-9-101 or their processor statutes. E.g.,L.M., Jr. v. State, 600 So.2d 967, 971 (Miss. 1992) ("[A] revolver carried in a holster on a man's hip was a partially concealed weapon. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it."), Lee, J., concurring.

    Next we must consider what effect, if any, does ยง45-9-101(18) (establishing a program of issuance for a License to Carry a Concealed Pistol or Revolver but noting that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in ยง 97-37-1, Mississippi Code of 1972") have upon the question of whether a person holding a License to Carry a Concealed Pistol or Revolver may lawfully carry a handgun in a holster.

    The Miss. Code does not define the phrase "open and unconcealed carrying." From the teachings of Chief Justice Lee's concurring opinion in L.M., Jr. v. State, supra, it would appear that a holstered handgun is "concealed in whole or in part" within the meaning of Miss. Code ยง 97-37-1. Therefore, the Miss. Legislature's declaration that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in ยง 97-37-1" would not reach a holstered handgun. Further, whatever is meant by the phrase "open and unconcealed carrying" in ยง45-9-101(18), that section does not make it a crime to carry handguns openly or unconcealed.

    If it is in fact possible to carry a handgun openly or unconcealed in Mississippi, Chief Justice Lee seems to think it be extremely difficult, and that "[c]onceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it." L.M., Jr. v. State.Perhaps the legislature meant "open and unconcealed carrying" to be carrying the handgun openly in one's hand. Alternatively, perhaps the legislature perceived holstered handgun carry in plain sight to be "open and unconcealed" and did not wish the license to "authorize" such carry as a matter of state policy per se, even though as a general matter, such carry is not unlawful under ยง 97-37-1.

    Conclusion: It is not a crime under ยง 97-37-1 to carry a handgun that is not "concealed in whole or in part." Further, a holstered handgun cannot be "concealed in part" and "open and unconcealed" at the same time. It would therefore appear that ยง45-9-101(18) does not limit the authority of a person holding a License to Carry a Concealed Pistol or Revolver to carry an unconcealed handgun in a hip holster because either (1) the holster partially conceals the handgun, see L.M., Jr. v. State, meaning that the gun is not carried open and unconcealed," bringing the gun within the scope of the privilege provided by the License to Carry a Concealed Pistol or Revolver, or (2)a holstered handgun is not "concealed in whole or in part" such that a person needs a License to Carry a Concealed Pistol or Revolver to be exempt from ยง 97-37-1. Accordingly, aperson holding a License to Carry a Concealed Pistol or Revolver may open carry a handgun in a holster in plain sight.

    NOTE: This opinion was not written by a lawyer licensed to practice law in Mississippi. In fact, the opinion was not even written by a lawyer. As such, it is not "legal advice," and should only be used for informational and research purposes. If you want legal advice on Mississippi state law, then contact a lawyer licensed to practice law in Mississippi.



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    Again...I'm trying to put this as plainly as possible.

    SEC. 97-37-1. Deadly weapons; carrying while concealed; use or attempt to use; penalties.
    (1) Except as otherwise provided in Section 45-9-101, any person who carries, concealed in whole or in part, any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm, or uses or attempts to use against another person any imitation firearm, shall upon conviction be punished as follows:

    (a) By a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or both, in the discretion of the court, for the first conviction under this section.

    (b) By a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), and imprisonment in the county jail for not less than thirty (30) days nor more than six (6) months, for the second conviction under this section.

    (c) By imprisonment in the State Penitentiary for not less than one (1) year nor more than five (5) years, for the third or more convictions under this section.

    (d) By imprisonment in the State Penitentiary for not less than one (1) year nor more than five (5) years for any person previously convicted of any felony who is convicted under this section.

    (2) It shall not be a violation of this section for any person over the age of eighteen (18) years to carry a firearm or deadly weapon concealed in whole or in part within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.

    (3) It shall not be a violation of this section for any person to carry a firearm or deadly weapon concealed in whole or in part if the possessor of the weapon is then engaged in a legitimate weapon-related sports activity or is going to or returning from such activity. For purposes of this subsection, "legitimate weapon-related sports activity" means hunting, fishing, target shooting or any other legal sports activity which normally involves the use of a firearm or other weapon.



    Is it a violation of mississippi law to carry a shotgun or rifle on your person outside of your vehicle/home/business without a carry permit????

    I personally don't see how it can be illegal. A shotgun with a barrel more than 18 in. or a rifle with a barrel more than 16 in. CAN NOT BE CONCEALED!! I'm not talking about pistols, revolvers.


    Therefore doesn't it follow that long guns can be carried openly due to the Article 3 Sec. 12 i.e. Bill of Rights in MS Constitution.

    SECTION 12.
    The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.


    If not, what code, law, AG opinion, etc denies this right???? Notice the red highlights.

    Will some government official ask this question of the AG and see what they say...I would find it extremely interesting as to how they will get out of the Article 3, Section 12 Bill of Rights MS Constitution?????

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    Do you agree that it must mean open carry of shotguns and rifles are legal?!?

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    mark edward marchiafava wrote:
    .....I'm done with man's law.....
    You know Mark, sometimes I feel that way too.

    First off, I want to complement you on your posts on this thread.

    What you have been through gives you a wealth of knowledge, and you have been a real help on this thread.

    I know we all get off on tangents sometimes, but on this thread you have stayed focused and provided some valuable insight.

    Thank you.


    Tarzan

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    I toally agree with your point of view. Yes the MS Constitution should be clearly interpreted to mean open carry of any gun is legal.

    My question is, under current interpretation, do you have the right to carry a
    firearm that is defined as unconcealable openly? ie. rifle longer than 16 in. and shotgun longer than 18 in. barrel.


    If not, Why?

    We can work on changing the "or in part" section of the law, because that is obviously what we are going to have to do.

    Also does anyone know how a motorcycle fiqures into this. For example if I jumped on my motorcycle and rode to a friends house with my Ruger 10/22 on my back, would that be legal. Or does the shooting sport exclusion what gets you off?



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    The way i see it is if you have a CPL you can pretty much carry open anywhere and conceal if you're not in a restricted area. Without a lisence you may carry in your home, vehicle or place of buisness. To open carry in public places without a CPLyou can only open carry if it's a rifle(16" Bbl) or shotgun (18"Bbl) due to the fact that a holster is considered partial coneaclment you really can't OC a handgun in public without brandishing. :X

    i think the idea is they'd probably call a rifle or shotgun brandishing if you carry it for your day-to-day. and their "partial" concealment makes it so you can't carry a handgun so they're seeminglyforcing people to have a CPL or don't carry. that's what I think anyhow.

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    mark edward marchiafava wrote:
    Other than me,is anyone aware of the legal doctrine of "void for vagueness?" If it's this confusing, it should be null and void.
    I am and I think you are right in that it could apply here.



    "Void for vagueness is a legal concept in American constitutional law, whereby a civil statute or, more commonly, a criminal statute is adjudged unconstitutional when it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application," as the United States Supreme Court articulated in Connally v General Construction Co., 269 US 385, 391 (1926). A statute is void for vagueness when: 1) it is unclear what persons fall within its scope, 2) what conduct is forbidden, and/or 3) what punishment may be imposed. Due process requires that a law be reasonably definite as to what persons and conduct are covered as well as the punishment for any violation. In determining whether a law is void for vagueness, courts have imposed the following tests: 1) does the law give fair notice to those persons subject to it? 2) does the law guard against arbitrary and discriminatory enforcement? and 3) can the law be enforced with sufficient "breathing room" for First Amendment rights?"



    http://en.wikipedia.org/wiki/Void_for_vagueness



    Tarzan

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    Subsection (13) bans the carry of a concealed pistol or revolver into the passenger terminal of any airport.

    (1) What is a passenger terminal? The secured area? The whole building, including baggage claim or any restaurants or shopsin the unsecured area?

    (2) Does this law ban OPEN carry in airports?

    Your help is much appreciated.

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    Malum Prohibitum wrote:
    Subsection (13) bans the carry of a concealed pistol or revolver into the passenger terminal of any airport.

    (1) What is a passenger terminal? The secured area? The whole building, including baggage claim or any restaurants or shopsin the unsecured area?

    (2) Does this law ban OPEN carry in airports?

    Your help is much appreciated.
    Does anybody know about number 1?

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    my best guess would be any area after the security gate that any non-passenger is prohibited. so the lobby, baggage claim etc would be ok but that is just my guess

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    Seif5034 wrote:
    my best guess would be any area after the security gate that any non-passenger is prohibited. so the lobby, baggage claim etc would be ok but that is just my guess

    Thanks. That is exactly what I am trying to figure out. Where are all the Mississippi people?

    For now we have marked Mississippi as red.



    http://www.georgiacarry.org/cms/abou...title=Airports


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    :X

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    Malum Prohibitum wrote:
    Where are all the Mississippi people?
    Still trying to get answers on the questions raised here. We know what the constitution and the MSCODE say. What we don't have are answers from our legislature or courts as to why the laws are contradictory. Our LEOs are as confused about the laws as everyone else which ought to be a strong inducement for our legislature and courts to make it clear but sadly that doesn't seem to be the case.

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    Bump.

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