imported post
As for your preference regarding permits for all forms of carry: Making that statement says a lot about your position and the direction your arguments are coming from. I will try to keep in mind that your personal beliefs support "should be regulated" rather than "shall not be infringed" and adjust my arguments for that.
First to your assertion that the statement made in State v. Reid is an
obiter dictum and does not constitute
stare decisis, I submit that you are correct. I further submit that, although dicta are not legally binding, they do set precedent until they are overturned. In the case
Santa Clara County v. Southern Pacific Railroad a
passing remark by then Chief Justice Waite from
before the arguments even began is the main basis as to whether the 14th amendment applies to legal persons as well as natural persons. That little bit of dicta, supported in other court cases, eventually led to the January decision in
Citizens United v. Federal Election Commission. Until such time as a decision is made by the Alabama Supreme Court in regards to open carry, that statement stands as the official opinion of the Alabama Supreme Court.
You say that you agree that things which are not illegal are legal, and yet you regard -52 as prohibiting open carry. This is an interesting conundrum, as, taken out of context, that is exactly how it reads. In my opinion, the key to this issue is the context.
13A-1-3 states one of the purposes of title 13A as being "To give fair warning of the nature of the conduct proscribed and of the punishment authorized upon conviction;".
What is the nature of the conduct proscribed? Chapter 11, Article 3, Sections 50-55 deal with carrying weapons concealed.
Section 50 defines the weapons that cannot be concealed, and the punishments thereof.
Section 51 allows for a mitigating defense and is the basis for arguments that, while it is unlawful to carry arms offensively, it is legal and right to do so defensively. I am making the argument that
Section 52 defines the places to which section 50 applies (any place that is not your own private property) and those who are exempt from this provision. Sections 53 and 54 add to the list of concealed weapons.
Section 55, the key to my -52 argument, brings it all together. "In an indictment for carrying weapons unlawfully, it is sufficient to charge that the defendant carried concealed about his person a pistol, or other description of firearms, on premises not his own, ...describing it, as the case may be; ...and if the evidence offered to excuse the charge raises a reasonable doubt of the defendant's guilt, the jury must acquit him." It is my assertion that, due to the standards set forth for the prosecution of those sections of code, those sections refer only to concealed carry.
You may not be aware of this, but there is some authority that 13A-11-52 only applies to private property owned by another and not to open carry on public property. This interpretation seems to conflict with the plain language of the statute, but nevertheless it appears to be the law.
ALRanger will be very happy to hear this, it is a pet argument of his.
In light of the cases you cited, we are left with the opposing views that 1) -52 is bad law and has been superceded, or 2) -52 is still in effect, but only regulates the carry of a pistol on the private property of another. Neither of these two options make it illegal to openly carry a firearm. Wasn't that the initial point of your argument, that OC is illegal?
I must also point out that I find it immensely amusing, given you argument regarding
dicta above that one of the deciding factors in the
Isaiah v. State case you reference
is the Reid case! Specifically "A statute which, under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purposes of defense, would be clearly unconstitutional" which was another peice of dictum that was unrelated to the decision against Reid.
As to your ridiculous assertion that gang members do not illegally conceal weapons because it is illegal, I submit that a criminal, by definition, does not follow the law. The current state of the law regarding things such as theft, assault, loitering, curfew, trespass, homicide, drug trafficking, et. al. do not concern gang members (insofar as they do these things anyway, but try to avoid punishment). Why should they be bothered by the legality of the way they carry their unlawfully obtained firearm? If this debate were constrained by the assumption, and it is a reasonable one, that
all the people who would ever carry openly already carry concealed, then I reiterate my earlier argument: The
only difference between open and concealed carry as it pertains to police officers, is that the officer can readily identify who is armed. This is more conducive to officer safety than the potential that every person they approach may be armed. I respectfully request that you do not ignore that argument this time around.
