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Thread: Open Carrier Arrested for Carrying "in any vehicle"

  1. #1
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    I don't have a lot of detail at this point.

    Per a discussion I had with with attorney Evan Nappen at PorcFest 2008, the victim is a non-resident of New Hampshire who was availing himself of the open carry provision in exercise of his Article 2a right to armed self-defense.

    He was stopped for a traffic infraction while armed with his loaded, holstered firearm, and was arrested and charged with a violation of the carry statute RSA 159:4, which prohibits unlicensed carry of a loaded firearm "in any vehicle."

    The "in any vehicle" wording has existed in the law since before the Article-2a amendment to the Constitution was enacted, so arguably this constitutional provision has superceded it. It sounds like, from my brief conversation, that Mr. Nappen and his client may intend to make just this kind of challenge to the validity of the law.

    The Article-2a right doesn't disappear the moment you step into a vehicle, even though the law at present says otherwise.

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    Assuming the non-resident does not have a CCW license that is valid in NH it sounds like he was breaking the law as it is currently written and the police officer took the "correct" action under the law.

    It would be interesting to see this go all the way to the State Supreme court considering their ruling recently that it was valid to revoke a Pistol and Revolver license (CCW) because the person could still open carry and exercise their article 2a right - how could the same people say that forcing someone to remove the magazine/ammunition when entering a vehicle is constitutional?

    (Article 2a: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. )

    I doubt it will go that far though considering it is "just" a misdemeanor.

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    Indeed, I don't particularly fault the cop in this situation because it's not up to them to resolve on the roadside which of two conflicting provisions of law should be applied. In order for a consitutional validity challenge to be brought against an invalid provision of law which the legislature has failed to repeal in the past 24 years, someone has to be charged under it, and for better or worse, that's what's happened here.

    If you doubt that this case will go that far, you probably don't know very many ornrey Free Stater political activists who cut their teeth mounting legal challenges against $5 parking tickets. Evan Nappen is a past president of the Free State Project, and the person charged is a participant.

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    Regular Member Gunslinger's Avatar
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    Having lived in NH for 16 years--with a CCW the whole time, I would say that the guy will be found guilty for the simple reason that the pistol was concealed, i.e., not open to easy viewing of the cop, being holstered, and it was loaded. NH laws says you can't carry a concealed, loaded handgun in your vehicle without a CCW. Secondly, as the pistol was concealed (I'm assuming this and that he had it in a belt holster the cop couldn't see) it is NOT open carry. If he was outside his car, fine--holstered = OC; but he wasn't. I think he loses and I don't see any constitutional issue here.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    EVEN IF your pistol is velcroed to the dashboard, or duct-taped to your forehead in a vehicle, if it's loaded you're "breaking the law." It's not about "concealed" vs. "open" here.

    Without a Pistol/Revolver License, there is NO LEGAL WAY to exercise your Article 2a right to armed self defense in any vehicle.

    That's the Constitutional issue here.

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    Regular Member Gunslinger's Avatar
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    mvpel wrote:
    EVEN IF your pistol is velcroed to the dashboard, or duct-taped to your forehead in a vehicle, if it's loaded you're "breaking the law." It's not about "concealed" vs. "open" here.

    Without a Pistol/Revolver License, there is NO LEGAL WAY to exercise your Article 2a right to armed self defense in any vehicle.

    That's the Constitutional issue here.
    I said: "that the pistol was concealed, i.e., not open to easy viewing of the cop, being holstered, and it was loaded." That is two separate potential charges: loaded gun in the car; concealed loaded firearm with no permit.

    I thenmentioned that it is NOT an open carry issue.

    And there is no constitutional issue here, with respect to the NH Constitution. You can have 26 guns in your car, if you want. Just not loaded with no permit. Nothing stops you from having as many firearms--every one of them loaded, in your home, or on your person--openly if no CCW, open or concealed, with CCW. Travel on public ways is regulated over and over--drivers licenses, vehicle safety, weight limits, etc, etc by the states. And so are concealed carry laws--even in the most gun friendly states. No state--not one, has ever lost a case dealing with their power to regulate concealed carry.


    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Gunslinger -

    Your argument seems to be that if you are facing towards a cop while carrying openly in a small-of-back holster, you're "carrying concealed," since after all, since a gun behind your back is not "open to easy viewing of the cop" standing in front of you.

    In Kansas, as I recall, a concealed carry prosectuion was defeated because evidence established that the only reason the cop knew about the sidearm is because the end of the muzzle was showing below the bottom hem of the individual's jacket, and therefore could not be considered "concealed."

    Regardless of how heavily travel on public roads is regulated, doing so cannot possibly strip you of an explicit Constitutional right. What if it were illegal to criticize politicians or pray "in any vehicle?"

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    mvpel wrote:
    Gunslinger -

    Your argument seems to be that if you are facing towards a cop while carrying openly in a small-of-back holster, you're "carrying concealed," since after all, since a gun behind your back is not "open to easy viewing of the cop" standing in front of you.

    In Kansas, as I recall, a concealed carry prosectuion was defeated because evidence established that the only reason the cop knew about the sidearm is because the end of the muzzle was showing below the bottom hem of the individual's jacket, and therefore could not be considered "concealed."

    Regardless of how heavily travel on public roads is regulated, doing so cannot possibly strip you of an explicit Constitutional right. What if it were illegal to criticize politicians or pray "in any vehicle?"
    Don't get me wrong, I'm on your side--and lived in Merrimack for 16 years, btw. I'm merely saying there is no constitutional issue which the NHSC would take up. Remember in a trial there are both law and facts to be determined. The law may or may not be clear; the facts have to be established and then the judgement of the two issues weighed--by the judge on law, and the jury on facts. One trial may go for and another--exactly the same law but a jury differs on the interpretation of the 'facts,' against. In VA while I lived there, two concealed carry violations were charged. Both had guns on the seat, towards the back cushion, but mostly visable to the two different cops. Almost same facts and the same law. One G and the other NG. Two different doughnut eaters, two different magistrates--no jury in either case.

    As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    I have to agree with mvpel and say that I doubt "carried openly in a outside waistband holster on a car drivers right hip" will be seen as meeting the definition of a concealed weapon under NH law.

    Things like this make me glad that, with the exception of the "no loaded carry in a car without a permit" BS (that is more of a hunting regulation than anything else), NH is a pretty no-nonsense state when it comes to gun laws.

    You don't have to notify LEO if you are carrying.
    You don't need permission to buy a gun.
    You can get a "shall issue" CCW permit.
    There is State preemption of local laws.
    Our State Constitution uneqivically declares our individual right to keep and bear arms.

    "Live free or die! Death is not the worst of evils."

    Edit to add, gunslinger, I know we are all on the same side here A judges opinion in VA is not necessarily the same as one in NH and I hold out hope that if it gets that far (very unlikely) that the hunting regulation ban on loaded open carry in a vehicle will be determined to infringe the strongly worded NH State Constitution.

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    Gunslinger wrote:
    As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
    There's a difference between "restriction" and "abrogation."

    What we have in New Hampshire is a law that does not merely "restrict" the unlicensed exercise of the Article 2a right to armed self defense in a motor vehicle, but completely eliminates it.

    There is no legal way in New Hampshire to carry a loaded firearm in any vehicle without applying for permission from and paying a fee to the government. "Nothing is absolute," except for New Hampshire's prohibition on having a loaded firearm in any vehicle without a license.

    Article 2a reads: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."

    It was enacted in December 1982, and I believe that it had the effect of nullifying the existing "in any vehicle" restriction in RSA 159:4, given that Part Second, Article 5 of the New Hampshire Constitution sets forth that laws, statutes, ordinances, etc shall not be "repugnant or contrary to this constitution." As this case moves forward, we'll find out if the New Hampshire courts take our Constitution seriously.

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    mvpel wrote:
    Gunslinger wrote:
    As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
    There's a difference between "restriction" and "abrogation."

    What we have in New Hampshire is a law that does not merely "restrict" the unlicensed exercise of the Article 2a right to armed self defense in a motor vehicle, but completely eliminates it.

    There is no legal way in New Hampshire to carry a loaded firearm in any vehicle without applying for permission from and paying a fee to the government. "Nothing is absolute," except for New Hampshire's prohibition on having a loaded firearm in any vehicle without a license.

    Article 2a reads: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."

    It was enacted in December 1982, and I believe that it had the effect of nullifying the existing "in any vehicle" restriction in RSA 159:4, given that Part Second, Article 5 of the New Hampshire Constitution sets forth that laws, statutes, ordinances, etc shall not be "repugnant or contrary to this constitution." As this case moves forward, we'll find out if the New Hampshire courts take our Constitution seriously.
    Good luck. It would be nice and please me if you won, but I doubt it very much. Libertarianism--even in the Granite State, isn't going to hold the day on issues like this. Maybe it would have 20 years ago, but not in this day and age with all the Massholes you have living there now.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    The Massholes don't get to say what the Constitution means, the courts do. The nice thing about Article 2a is that a lot of the people who wrote it are still around, and members of Gun Owners of New Hampshire, so the court can't make specious claims about the "original intent" without someone immediately calling BS.

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    Regular Member Gunslinger's Avatar
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    mvpel wrote:
    The Massholes don't get to say what the Constitution means, the courts do. The nice thing about Article 2a is that a lot of the people who wrote it are still around, and members of Gun Owners of New Hampshire, so the court can't make specious claims about the "original intent" without someone immediately calling BS.
    The Massholes vote for the dumbsh**ts you've recently elected, and one of them appoints the judges--including SC Justices. That's the problem.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    If you look at the results from the 2004 presidential election, you'll see that the southern border towns went overwhelmingly for Bush until you get out to the very easternmost towns near Boston, while towns along our western border leaned to Kerry. So I submit that most of the Massholes moving here are actually political refugees, and that it's the influence Vermonters that we need to worry about.

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    well mvpel has very good points, the NH constitution and article 2a does state what he says it does! i OC in maine all the time, berwick to be exact and i walk right across the boarder to dover/sumersworth with my weapon all the time, i love NH!!!!! i see his arguement about open carry in a vehicle, just because your in a vehicle does not mean it should be concidered concealed. If i were standing with my weapon on mystrong side, and a police officer walked out of his office, and i just happened to be standing by a hotdog cart that obscured his view of my weapon, then i sidestepped a foot..........he could then call that concealing a weapon becuase he couldnt see it before i moved. same principal.



    hey mvpel, when ya gonna raise more heck in somersworth? :-p

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    jay75009 wrote:
    ...i walk right across the boarder to dover/sumersworth with my weapon all the time, i love NH!
    I'm over there a lot... Lemme know when you going to be down there. I'd be awesome to meet some of the other folks from this forum.

    (And yes, NH is awesome)

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    i will deff have to do that, my car is in the shop right now, but when i get her back ill have to take a trip down to berwick and cross over to the land of less harassment haha

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    Any updates on this?

    What happened?

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    I haven't spoken to the attorney lately, and the last time I did, quite a while back, it was still privileged and in process. I'll try to remember to ask next time I see him.

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    Gunslinger wrote:
    I said: "that the pistol was concealed, i.e., not open to easy viewing of the cop, being holstered, and it was loaded." That is two separate potential charges: loaded gun in the car; concealed loaded firearm with no permit.

    I thenmentioned that it is NOT an open carry issue.

    And there is no constitutional issue here, with respect to the NH Constitution. You can have 26 guns in your car, if you want. Just not loaded with no permit. Nothing stops you from having as many firearms--every one of them loaded, in your home, or on your person--openly if no CCW, open or concealed, with CCW. Travel on public ways is regulated over and over--drivers licenses, vehicle safety, weight limits, etc, etc by the states. And so are concealed carry laws--even in the most gun friendly states. No state--not one, has ever lost a case dealing with their power to regulate concealed carry.

    Gun,

    You are incorrect. There is plenty of case law where states have lost on their power to regulateconcealed carry. Here is one example: State v. Hamdan

    The right to keep and bear arms for security, as a general matter, must permit a person to possess, carry,and sometimes conceal arms to maintain the security of a private residence or privately operated business, and to safely move and store weapons within those premises.

    I could point to others...but that is the fun of reading case law.

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