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This law seems to prohibit a lot of OC

49er

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...this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
Yourdefintion of "primary source" as it relates to a statute is misplaced. Statues aresecondary to constitutional guarantees.



Heller v Washington DC
[align=justify]...After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all... [/align]
[emphasis mine]
 

eye95

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"Primary source" is a historical term. It refers to original documents or widely accepted copies, as opposed to documents containing opinions, conclusions, and paraphrases. For example, the web copies of the Alabama Constitution and the code of Alabama could be considered primary sources. The tri-fold pamphlet is not. Web copies of actual legislation and court rulings would be. Summaries of the above are not.

So, can anyone take me on a tour of these primary sources?
 

49er

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You can lead a horse to water, but you can't make him drink.

If you are a peace officer, do what you took an oath to do. If you have ever taken the military oath, do what you swore to do. If you are a citizen and have not taken an oath, defend the Constitution anyway:



SECTION 279

Required of members of legislature and executive and judicial officers; form; administration.
All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation:

"I, …, solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God."

The oath may be administered by the presiding officer of either house of the legislature, or by any officer authorized by law to administer an oath.
[font=TimesNewRoman,Bold][font=TimesNewRoman,Bold]
[font=TimesNewRoman,Bold][font=TimesNewRoman,Bold]
[align=left]ENLISTED OATH OF OFFICE[/align]
[align=left]I (state your full name) ________________ do solemnly swear[/align]
[align=left]That I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me according to the regulations and the Uniform Code of Military Justice,[/align]
So help me God,
[/font]
[/font]
[/font][/font]
 

eye95

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Apparently, you cannot provide what I am asking for. That's OK, but the snark was unnecessary.

Can someone else lead me through the primary sources, and not just the rhetoric? It would be a valuable tool that anyone could follow and know directly for themselves what the law says.

Too many people satisfy themselves with what other people say the law says. Jails are filled with those people. I am not one of them. I truly want to know what the actual legislation and court rulings say.

Can anyone provide this?
 

dixieborn

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eye95... you're getting obnoxious. You've been directed to plenty of primary sources. The Alabama constitution, Alabama statutes, case law, attorney general opinions. Those things are all actual legitimate sources, not just forum filler. And all of these things have answered your questions... I don't see what is confusing about it anymore.

Try getting someone else to sit down with you and go through the all the evidence and sources and explain it all. This is obviously just not getting through.
 

45 Auto

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eye95 wrote:
"Primary source" is a historical term. It refers to original documents or widely accepted copies, as opposed to documents containing opinions, conclusions, and paraphrases. For example, the web copies of the Alabama Constitution and the code of Alabama could be considered primary sources. The tri-fold pamphlet is not. Web copies of actual legislation and court rulings would be. Summaries of the above are not.

So, can anyone take me on a tour of these primary sources?
The Tri-Fold is not itself a primary source, but it is exactly what you are asking for. It is a tour of the primary sources, complete with citations. It simply quotes the pertinent portions, but gives the reference in case you want to go further. If you do want to get in the weeds, then you can use your favorite search engine to look up said web copies of the sources cited. What more do you want? Everyone has given you exactly what you have asked for and you keep asking the same question over and over again. If you want something different, please clarify, and I am sure you will find everyone more than happy to help you.
 

eye95

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OK, I have read the Tri-Fold. I read it before I asked the initial question.

I have read the sections of the code it references. The problem I have here is that plain reading in the context of only the code says that OC is not permitted on the premises of others. So, there must be more context. That's what I am looking for.

I have read the AG opinions. I understand that they absolutely say that OC is legal. However, they are not the primary documents that made OC legal. What if another AG comes in and has the opposite opinion?

I have not read the court opinions, only the excerpts in the Tri-Fold. I cannot find the whole opinions and the State of Alabama only makes court opinions available on the web as a pay service. The Tri-Fold points to these primary sources, but is not a primary source.

The tri-fold does not reference the actual legislation that created the relevant sections of the code. These are the oft-cited context that gives the sections a meaning different from the one that plain reading gives.

If anyone thinks that these requests are obnoxious, feel free not to answer. I am making these pleas to anyone who can link actual complete court opinions and actual original legislation. If there is no one here who can, I can accept that and move on. But, I would be concerned that people are insisting that an action is legal based on second- and third-hand information, when there are a bunch of people in law enforcement who say otherwise.

I am merely trying to find out for myself what the law, as the legislature and the courts have said in their words, says.

Trust me, based on the Second Amendment, and the Alabama Constitution, OC should be legal. But, these constitutions are rapidly becoming so much paper. Absent legislators, judges, and sheriffs willing to protect the rights enumerated by these documents, those rights become so many words.

I am asking for help in finding the actual words of the legislatures and courts, so I can understand why some sheriffs are denying the rights and have first-hand knowledge of how to refute them.

If you can provide these urls, please.

If no one can, that's OK. The thread'll just die.

If you think I'm being obnoxious, shake your head and move on. There is no need for snark.

But, like I said, if we can put together the urls of the primary sources, don't you think that would have some value in promoting the right to bear arms?
 

45 Auto

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eye95 wrote:
I have not read the court opinions, only the excerpts in the Tri-Fold. I cannot find the whole opinions and the State of Alabama only makes court opinions available on the web as a pay service. The Tri-Fold points to these primary sources, but is not a primary source.

The link that dixieborn provided: http://alabamagunrights.org/contains pdf's of the whole opinions for the relevant cases andthe AG opinions.

As for the legislation, short of the actual text of the Firearms section of the Code of Alabama(also listed on alabamagunrights.org), I don't know what it is you are looking for short of a transcript from the day in the Alabama legislature that they passed those laws (if such a thing exists, I don't know where) or an interview with one of the legislators who passed it, I don't see what it is you want. The legislature passes the code (a link to which has been provided) with deference to the constraints of the state constitution, and when issues arise regarding that code, the courts rule on it and provide opinions to support their decision (again, link provided), and when that causes confusion, the attorney general issues an opinion to clarify the matter (same link). That is the complete string of source material, and has fortunately already been compiled at alabamagunrights.

I know that still leaves a fair bit of wiggle room, but unfortunately for us, that is the price of doing business in Alabama. I would love to have an absolute ironclad argument for open carry (like they do in Virginia), but short of getting the laws rewritten to resolve the apparent conflicts, I doubt there's anything more to do other than be familiar with what we've already been given.
 

eye95

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Thanks, 45. Here is something from KJ that seems to say that -52 is still the law on open carry:

As authority for his contention, the appellant cites Stinson v. State, 190 So. 303, 304, 28 Ala. App. 559, 560 (Ala. App.), cert. denied, 238 Ala. 272, 190 So.305 (Ala. 1939), in which the Court stated: "[The Uniform Firearms] Act prescribes punishments and penalties for violations of any of the provisions of the Act, and in Section 22 thereof is provided: 'This Act is intended as an entire revision of the subject matter contained herein and all laws or parts of laws inconsistent herewith are hereby repealed.' "It would appear, therefore, that Section 3487 [**3] of the Code of 1923 [now § 13A-11-52] has been repealed and Form 32, of Section 4556, ceases to be the form prescribed in charging a defendant with a violation of Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52. [*543] "The inhibition against the possession of firearms is now contained in Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52 [now § 13A-11-73], which reads as follows: 'No person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode of fixed place of business, without a license therefor as hereinafter provided.' It will be seen that this is an entire change of the former law on the subject." This Court is cognizant of the fact that the court's holding in Stinson seems to infer that the precursor to § 13A-11-52 was repealed by the enactment of the Uniform Firearms Act; however, the legislative history of the current § 13A-11-52 shows that the Legislature re-codified that section on two separate occasions following this Court's holding in Stinson, in 1940 and 1975. "It is a fundamental principle of statutory construction that in enacting [a] statute the [**4] legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute." Miller v. State, 349 So. 2d 129, 131 (Ala. Cr. App. 1977). We hold that § 13A-11-52 is still in effect as evidenced by the following cases where defendants were charged under this section: C.D.J. v. State, 671 So. 2d 139 (Ala. Cr. App. 1995), and A.M. v. State, 623 So. 2d 421 (Ala. Cr. App. 1993).
I bolded the portion that says -52 is again in force, despite at one point in time having been repealed.

Is there anything that refutes this?
 

dixieborn

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No snark intended... just a little frustration, but it's all good. I am happy that this time, the same link seemed to fulfill your request.



But like I said, I wasn't trying to talk down, I'm serious. It would probably be helpful to have someone like a lawyer sit down and spell it all out. I'm sure I would benefit from that. Or even better, write the AG's office and ask for an opinion so they can spell it out, which would also provide a great tool for speaking to local law enforcement.



Anyway, no harm, no foul. There are plenty of primary sources out there. Alabamagunrights provides half of them. Some very simple "googling" will provide the rest at no cost at all. Hopefully we can all remain committed to learning and understanding the laws of the land in which we live.
 

eye95

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eye95 wrote:
Thanks, 45. Here is something from KJ that seems to say that -52 is still the law on open carry:

As authority for his contention, the appellant cites Stinson v. State, 190 So. 303, 304, 28 Ala. App. 559, 560 (Ala. App.), cert. denied, 238 Ala. 272, 190 So.305 (Ala. 1939), in which the Court stated: "[The Uniform Firearms] Act prescribes punishments and penalties for violations of any of the provisions of the Act, and in Section 22 thereof is provided: 'This Act is intended as an entire revision of the subject matter contained herein and all laws or parts of laws inconsistent herewith are hereby repealed.' "It would appear, therefore, that Section 3487 [**3] of the Code of 1923 [now § 13A-11-52] has been repealed and Form 32, of Section 4556, ceases to be the form prescribed in charging a defendant with a violation of Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52. [*543] "The inhibition against the possession of firearms is now contained in Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52 [now § 13A-11-73], which reads as follows: 'No person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode of fixed place of business, without a license therefor as hereinafter provided.' It will be seen that this is an entire change of the former law on the subject." This Court is cognizant of the fact that the court's holding in Stinson seems to infer that the precursor to § 13A-11-52 was repealed by the enactment of the Uniform Firearms Act; however, the legislative history of the current § 13A-11-52 shows that the Legislature re-codified that section on two separate occasions following this Court's holding in Stinson, in 1940 and 1975. "It is a fundamental principle of statutory construction that in enacting [a] statute the [**4] legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute." Miller v. State, 349 So. 2d 129, 131 (Ala. Cr. App. 1977). We hold that § 13A-11-52 is still in effect as evidenced by the following cases where defendants were charged under this section: C.D.J. v. State, 671 So. 2d 139 (Ala. Cr. App. 1995), and A.M. v. State, 623 So. 2d 421 (Ala. Cr. App. 1993).
I bolded the portion that says -52 is again in force, despite at one point in time having been repealed.

Is there anything that refutes this?
As no one has refuted the plain reading of the bolded portion of this court opinion, I will proceed as though OC is illegal in Alabama. I wish someone could have demonstrated otherwise, unfortunately, it seems that no one can.
 

possumbarnes

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Eye95, I agree with you. I've been mostly a lurker in this forum. I've printed out and studied the tri-fold information. I've read and tried to the best of my ability to understand all the laws, cases, and opinions regarding OC in Alabama. What you're looking for is what I would love to see.
A law that very, very, very plainly states 'Carrying a pistol openly is LEGAL in the state of Alabama'. In my opinion, it just doesn't exist. I wish it did.

Everything I've read is written in such a way that makes it open to interpretation. I'm not willing to put my CC license in jeopardy because some gung-ho LEO decides to interpret it the wrong way, or some liberal anti-gun freak decides to get me in trouble and lie to the LEO and say I was acting in a dangerous manner. (The old "my word against theirs").

If OC is legal in this state, why can't the AG or Governor put it in precise and clear English so that any 2nd grader can read it and say, "Wow, so my daddy ain't breakin' the law when he carries his gun on his hip like a cowboy. COOL!"

As I said in the beginning, I'm more of a lurker here. I'm just trying to increase my knowledge for my own sake and the sake of my family. I will continue to CC in order to protect myself and those around me if need be, until an Alabama governing body can state in non-legalese that OC is OK in AL.

This is the end of my $.02. God bless and I pray no one here ever needs to draw their gun to defend themselves.
 

Bhamrichard

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possumbarnes wrote:
Eye95, I agree with you. I've been mostly a lurker in this forum. I've printed out and studied the tri-fold information. I've read and tried to the best of my ability to understand all the laws, cases, and opinions regarding OC in Alabama. What you're looking for is what I would love to see.
A law that very, very, very plainly states 'Carrying a pistol openly is LEGAL in the state of Alabama'. In my opinion, it just doesn't exist. I wish it did.
Laws are written, voted on, and signed into law that define acts that are illegal under the statues. Ergo, if there is no law that says a particular thing is illegal, then it is inherently legal in the eyes of the law.

You aren't going to find any written law that says its legal for you to walk out your front door and check your mail box, or go to a sporting event, or to sing your head off in the shower. But in the absence of a statute saying that you CAN'T, then it's legal :)
 

eye95

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possumbarnes: Thanks for your thoughtful reply. You said some things better than I had.

Bhamrichard: I have pointed to the portion of the law that says that CC on premises not your own is illegal--in pretty clear language. Others have pointed to AG opinions and court opinions that say that this portion of the law has been overridden. In response, I have posted a court opinion that says that this black-letter law banning OC on premises not your own is still in force. No one has yet refuted that court opinion.

I hope someone can. In all of my research, I have found nothing. Can you refute the specific opinion I cited with a later law or a later court opinion?
 

Jonathon Sometimes

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I've seen a lot of you new people come around and instigate lately. Don't worry Richard, there's a good chance they are trolls and agents provacateurs. This crap all started when I directed the local police to this site. So what's up, BPD?

Even if you guys are real, how bout you quit crying and OC, like I did today.
 

eye95

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Or, you could try to answer the question asked. The relevant part of the ALSC decision in question is bolded above. I really hope someone can answer the question. I would like to believe all who claim that OC is illegal in AL are wrong.

At the moment, though, those who claim it is legal haven't met their burden of proof in my eyes.

If someone thinks that asking a question is stirring the pot, he is entitled to his opinion. I would just think THAT was stirring the pot.
 

Mike

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eye95 wrote:
Thanks, 45. Here is something from KJ that seems to say that -52 is still the law on open carry:

As authority for his contention, the appellant cites Stinson v. State, 190 So. 303, 304, 28 Ala. App. 559, 560 (Ala. App.), cert. denied, 238 Ala. 272, 190 So.305 (Ala. 1939), in which the Court stated: "[The Uniform Firearms] Act prescribes punishments and penalties for violations of any of the provisions of the Act, and in Section 22 thereof is provided: 'This Act is intended as an entire revision of the subject matter contained herein and all laws or parts of laws inconsistent herewith are hereby repealed.' "It would appear, therefore, that Section 3487 [**3] of the Code of 1923 [now § 13A-11-52] has been repealed and Form 32, of Section 4556, ceases to be the form prescribed in charging a defendant with a violation of Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52. [*543] "The inhibition against the possession of firearms is now contained in Section 5 of the Acts of the Legislature, Extra Session of 1936, page 52 [now § 13A-11-73], which reads as follows: 'No person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode of fixed place of business, without a license therefor as hereinafter provided.' It will be seen that this is an entire change of the former law on the subject." This Court is cognizant of the fact that the court's holding in Stinson seems to infer that the precursor to § 13A-11-52 was repealed by the enactment of the Uniform Firearms Act; however, the legislative history of the current § 13A-11-52 shows that the Legislature re-codified that section on two separate occasions following this Court's holding in Stinson, in 1940 and 1975. "It is a fundamental principle of statutory construction that in enacting [a] statute the [**4] legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute." Miller v. State, 349 So. 2d 129, 131 (Ala. Cr. App. 1977). We hold that § 13A-11-52 is still in effect as evidenced by the following cases where defendants were charged under this section: C.D.J. v. State, 671 So. 2d 139 (Ala. Cr. App. 1995), and A.M. v. State, 623 So. 2d 421 (Ala. Cr. App. 1993).
I bolded the portion that says -52 is again in force, despite at one point in time having been repealed.

Is there anything that refutes this?

I can see how this seems confusing to everyone, and it does to me as well and i can see why folks might not want to open carry until the law is more clear - however the case above was a case was about a juvenile carrying a concealed pistol and concluded by ruling that the state did not have to prove that the Defendant did not have a license to conceal as he was not old enough to getsuch a license.

It appears to still be valid law that "Section 13A-11-52 applies only the extent that it is consistent with § 13A-11-73." C.D.J. v. State, 671 So. 2d 139, 142 (Ala. Crim. App. 1995).

It is true that the text of “Section 13A-11-52 . . . does not permit the carrying of a pistol outside of a person's own premises under any circumstances. However, that section does begin with the phrase ‘except as otherwise provided in this article.’ Section 13A-11-73 clearly allows a person with a pistol license to carry a pistol in a vehicle or concealed on the person. Furthermore, in Morris v. State[/i][/b], 342 So. 2d 417, 418 (Ala. Cr. App. 1977), and Looney v. State[/i][/b], 41 Ala. App. 582, 141 So. 2d 535, 536 (1962), this court held that § 13A-11-73 does not prohibit carrying an unlicensed pistolif the pistol is unconcealed and the person is on foot. . . . Section 13A-11-52 applies only the extent that it is consistent with § 13A-11-73 because it is ‘the later statute and a complete revision of the subject matter.’ Braxton[/i][/b], 350 So. 2d at 755. Therefore, the state should have been required to prove all of the elements of a violation of § 13A-11-73.” C.D.J. v. State[/i], 671 So. 2d 139, 142 (Ala. Crim. App. 1995) (emphasis added). See also[/i] 2006 Ala. AG LEXIS 145 (Ala. AG 2006) (“Section 13A-11-52 of the Code of Alabama . . . must be read with section 13A-11-73 of the Code of Alabama, which states that "[n]o 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 therefore as hereinafter provided." ALA. CODE § 13A-11-73 (2006).”); 1984 Ala. AG Op. #84-00205 (“Section 13A-11-73 takes precedence [over Section 13A-11-52] (citing to Braxton v. State[/i][/b], 350 So.2d 753 (1977)), available at http://www.ago.state.al.us/oldopinions/8400205.pdf.
 

eye95

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Mike, thanks for the reply.

For clarification, are you saying that -52 is still in force? Everything I read seems to indicate it is.

If so, I don't see the "except as otherwise provided in this article" as causing any of its restrictions to be relaxed as no other provisions in the code even address open carry. I don't see that the mention of concealed carry necessarily means that restrictions on OC are overridden.

The main argument for saying CC overrides restrictive OC is that CC was passed after OC was restricted. However, the court opinion I cited, apart from the issue it was immediately dealing with, clearly says that the section restricting OC is still in force.

To me, the natural conclusion is that the OC restriction is still in force, but there is enough confusion that some may claim otherwise. As long as one sheriff goes with the plain reading of the law, OC can result in arrest and loss of CC.

However, one thing will change my understanding of everything I have read. And, that is if someone can specifically refute the portion of the decision cited above that says pretty clearly that -52 is still current law.
 

dixieborn

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eye95, you say you don't see -52's restrictions being relaxed because no other sections of the code specifically address open carry, but the fact is -52 doesn't specifically address open carry either. it addresses "carrying a pistol." As Mike noted, -73 is a "complete revision of the subject matter." The subject matter being, carrying a pistol. And since -73 places no such restrictions on open carry, it is therefore legal. There really is no "OC restriction" that you refer to.
 
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