Open Carry and The Car

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I hope to be working with my new republican state house representative on changing some of our horrible laws. We should be getting together on it this or next month. (I hope)

My thoughts are to first amend the CCW law in regard to open carry. I.E. a holstered pistol on the hip when sitting in the car maybe considered concealed.

So the amendment would say something to the effect of:

For the purposes of this section, a firearm carried in such a way that if the subject/person where standing outside the car would be not be considered concealed, it will not be considered concealed in an automobile.

What section should this be amended to? I'm thinking the section that defines ccw.

Any lawyers that what to help with the language, your help would be appreciated.

I think this would be a good way to test the waters on changing the gun laws to our favor in NC. If we're successful with this; we could use the momentum onharder changes like castle doctrine.

But should we change it?

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We need less laws, not more. How about we just get rid of the restrictions on concealed carry all together?

The only time a weapon in your car should come into question is when you've been approached by an officer after you've already broken the law. Seems like a pretty unavoidable situation to begin with.

As far as whether a gun on your hip is concealed when you're sitting in a car, we've been over this on the forum a billion times. Sitting in your car is the same as sitting in a booth, or standing behind a wall. The weapon is still visible, just not from every angle. If/when a cop is dumb enough to try to charge someone for that, any decent lawyer will be able beat it into the floor, and then we'll have case law to back up common sense.

There are much more important things that need to be changed, like the holes in preemption, the "alcohol and admission" bans, and the "parade/funeral procession/demonstration" ban.

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Dreqo it seems like the only way to really OC would be to hold the gun above your head so it is visible.

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Godscreation wrote:

Dreqo it seems like the only way to really OC would be to hold the gun above your head so it is visible.

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duct tape chin strap holster!!:dude:

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The reason I propose this is to make it very clear for LEOs what is and what is not concealed in a car. I think it's to vague now.

Asfor alawyer, I rather avoid the whole courtroom situation altogether. God knows we have enough dumb LEOs out there, lucky most are good cops.

Considering the memo by the NCAG saying that a gun being considered concealed is left up to officer judgment. I think a small amendment to a law already on the books is a good compromise. Though I do wish we where like Vermont.

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Curins wrote:

I hope to be working with my new republican state house representative on changing some of our horrible laws. We should be getting together on it this or next month. (I hope)

My thoughts are to first amend the CCW law in regard to open carry. I.E. a holstered pistol on the hip when sitting in the car maybe considered concealed.

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And why do you think that this is a problem? Are their any NC court cases construing open carry in vehicles to preclude hip holster carry?

Let's not invent constructions of law that would be unfavorable to us.

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Fair enough. Would you guys support preemption?

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Curins wrote:

Fair enough. Would you guys support preemption?

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NC already has preemption, though it allows localities to ban gun carry in parks and local buildings - that is the only reason NC is not codes as a Gold Star Open carry state - but does'nt the preemption statute require posting in these cases? if so maybe John and I need to reevaluate NC for Gold Star status, especially given their state const. right to open carry.

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Mike wrote:

NC already has preemption, though it allows localities to ban gun carry in parks and local buildings - that is the only reason NC is not codes as a Gold Star Open carry state - but does'nt the preemption statute require posting in these cases? if so maybe John and I need to reevaluate NC for Gold Star status, especially given their state const. right to open carry.

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Yes, state law "allows" cities and counties to ban weapons from parks, buildings and properties by posting conspicuous notice, but that a person is still allowed to have the weapon in their car... (only place that is not true is on school premises)

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RayBurton72 wrote:

Yes, state law "allows" cities and counties to ban weapons from parks, buildings and properties by posting conspicuous notice

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Can you cite to the notice statute when you get a chance?

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As I pulled the statutes for you, I realized I may have misspoke:

A city or county may ban weapons in general from city or county owned property by passing an ordinance. BUT, to ban concealed carry, they must post notice of the ban.

NCGS 14-409.40(d) states,

Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A‑129, 160A‑189, 14‑269, 14‑269.2, 14‑269.3, 14‑269.4, 14‑277.2, 14‑415.11, 14‑415.23, including prohibiting the possession of firearms in public‑owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas.

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NCGS 14-415.23 deals solely with concealed carry, and DOES require posting.

§ 14‑415.23. Statewide uniformity.
It is the intent of the General Assembly to prescribe a uniform system for the regulation of legally carrying a concealed handgun. To insure uniformity, no political subdivisions, boards, or agencies of the State nor any county, city, municipality, municipal corporation, town, township, village, nor any department or agency thereof, may enact ordinances, rules, or regulations concerning legally carrying a concealed handgun. A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14‑415.11(c), on local government buildings, their appurtenant premises, and parks. (1995, c. 398, s. 1.)

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Whether NC is a Gold Star state lies in your reading ofNCGS 153A-129 and 160A-189 (153A-129 applies to counties, 160A-189 applies to cities). These statutes allowscounties and cities, respectively,

§ 153A‑129. Firearms.
A county may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place except when used to take birds or animals pursuant to Chapter 113, Subchapter IV, when used in defense of person or property, or when used pursuant to lawful directions of law‑enforcement officers. A county may also regulate the display of firearms on the public roads, sidewalks, alleys, or other public property. This section does not limit a county's authority to take action under Chapter 14, Article 36A. (1973, c. 822, s. 1; 2006‑264, s. 16.)

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The current debate on the board, centers on whether the 1921 NC Supreme Court decision, State v. Kerner, in which the court ruled that requiring a permit to carry unconcealed was unconstitutional, would render anti-open carry ordinances like Cary's unconstitutional or not, since Cary specifically has the right under the law to make city property no weapons zones. The Forsyth county ordinance at issue in State v. Kerner referred to carrying a pistol "off one's premises."

The question yet to be resolved, is exactly how NGCS 153A-129 and 160A-189 square with that decision and whether a modern court would honor stare decisis and not apply "modern" standards to the issue.

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Any case construing § 153A‑129? Seems to me under the Dillon rule that this statute sets forth the limit of locality power on gun regulation and that reading the "display" regulation power to include the power to ban holstered open csarry would be dubious given Kerner which has been reviewed favorably in modern times by the appeals court.

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I don't know of any case law involving the regulation of "display" in153A-129 (or 160A-189)...

As has been beat to death here, Kerner would appear to make any ban on open carry unconstitutional, BUT, I can see how localities would argue that Kerner applied to an ordinance requiring a one-time permit to open carry a pistol off one's premises - and was thereby a de facto ban.

A locality would argue that these statutesonly apply to carrying on government "owned" property - thereby bringing common-law property rights into the equation.

As many will say, using Cary as an example, that a city cannot ban Open Carry under this ordinance, but they may regulate, as Chapel Hill does (minimum size of pistol), but I have yet to see the case law overturning Cary's ordinance.