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Thread: Cary and OC, again

  1. #1
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    Here is the Cary, NC page for firearms.

    http://www.townofcary.org/Department...wn_of_Cary.htm

    Specifically this.

    The Town of Cary does not allow the open or concealed carry of a weapon while on any public property within our community including on greenways, in public parks or Town facilities, or in Town-owned parking lots. The ordinance does not allow the open carry of any firearm on public sidewalks or right-of-ways. See Section 22-51(a) of the Town of Cary Code of Ordinances.


    Here is their actual code.

    (d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law.

    here

    http://www.amlegal.com/pdffiles/Cary_pdf/code_CH22.pdf

    Noticed it says Authorized by law. Hmmm. I'm wondering how this stands in the light of NCSC case law?

    State v Kerner

    ALLEN, J. (concurring). The right to bear arms, which is protected and safeguarded by the federal and state Constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate; but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.
    This is, I think, the correct principle, and it appears to me the constitutional privilege is infringed by the act under which the defendant is indicted, as it makes one guilty of a violation of law who carries a pistol off his own premises openly and for a lawful purpose without a permit, and he is required to pay $5 and to give a bond in the sum of $500 before the permit can issue.
    No provision is made for an emergency, and no exception in favor of one who carries a pistol off his premises openly, in the necessary defense of his person or property, when he has had no opportunity to secure a permit.

    http://www.guncite.com/court/state/107se222.html

    State v Huntley

    But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun, per se, constitutes no (p.423)offence. For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.


    http://www.guncite.com/court/state/25nc418.html

    Or State v LR Speller. This is a new one to me, just found the reference in Kerner.

    It does not say that a citizen when beset with danger shall not provide for his security by wearing such arms as may be essential to that end; but simply that if he does do so, he must wear them openly, and so as to be seen by those with whom he may come in contact.


    http://www.constitution.org/2ll/2ndc...tate/105st.htm

    Another thing, the city cites GS 14-409.40 as their ability to restrict OC. Now either I am blind or I am missing the part about roads and sidewalks in this GS statute. I have seen it before, but cannot track it down now. Just kind of thinking out loud here. I have never seen all the Cary stuff in one place before. Thought it might be helpful to put it all together and look at it as the sum of it's parts instead of taking it for fact and resigning ourselves to the fact that this reading of the law is correct. What say you? I think it's time for a few emails.

    If you were wondering, the NC pamphlet discussion got me looking into this in depth. But I did not want to hijack that thread.

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    So how does the Town of Cary deal with travel? Suppose I leave my home (where I can, according to their rules) carry my piece, and I walk on the sidewalk to my office (where I can, according to their rules) carry my piece? Do I just get arrested for OC along the way?

    Sounds like Cary is all screwed up. Just goes to show what rich folks that dislike guns can get made into law.











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    It's a misdemeanor charge for OC. Technically, if you have a CCP you could cover it up on the sidewalk and OC at your home or at a private business. They used to say you could not CC on sidewalks but that is against the CC uniformity statute. They have since fixed it.

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    I owned a business In Cary for 18 months and openly carried everyday. North Carolina has full preemption of firearms laws per state statute 14-409.40. Local government can't pass laws regulation the sale, transportation or carry of firearms except as allowed by State law. The town of Cary's ordinances aren't a problem at all. They simply state that you can't carry on publicly owned property (property owned by the Town). The sidewalks & streets are owned & maintained by the State of North Carolina ,you can carry just not on Town owned property.

    I have been in restaurants in Cary openly armed (don't carry if they serve alcohol) while Cary police were there, been in convenience stores with officers right behind me in line and it has never been a problem. I even had a conversation about guns with one Cary officer.

    Also we held a open carry dinner around a year ago at a Cary pizza joint. A group of really decent folks showed up and NONE Of US ENDED UP IN JAIL, because it's perfectly legal.

    There are several instructors that teach the concealed carry class in the area that will tell you that carrying in Cary & Fuquay Varina will get you arrested GUARANTEED. They love implying that it's illegal, "Going about armed to the terror of the public" bla bla.... It is perfectly legal to open carry throughout North Carolina regardless if a few instructors and police officers like it or not.

    I would strongly recommend anyone concerned about this read the State firearms laws available on this very site. They are very clear.

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    NCP, the statue you are listing is the one that Cary claims authority from to ban OC on public sidewalks and right of ways. All the places you mentioned were private property. The city firearms codes are useless on private property, the state law preempts them.

    Are you aware that Cary specifically mentions sidewalks, streets, and right of ways? Sec 22-51

    "(d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law."

    My point is, how does 14-409.40 and the statement for Cary "authorized by law" stand up to the linked NCSC case law? They also use a looser term, public property, instead of city owned property.

    Here's the reason I posted this. I am well aware of the oddities of both Cary's law and the NC state law. I don't recall seeing all of this in one spot; codes, statutes, and case law. Just thought I would put my thought process down and ask whether my idea was correct. That NCSC case law could be used as "authorized by law" to Cary on public property, not counting buildings and parks, in Cary. I don't think 14-409.40 gives them the authority they are claiming. But now that it's on paper it will have to be changed by them or forced to change by the courts. Ignoring it does not make it go away.

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    chiefjason wrote:
    "(d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law."
    I found this:
    "The Town of Cary does not allow the open or concealed carry of a weapon while on any public property within our community including on greenways, in public parks or Town facilities, or inTown-owned parking lots. The ordinance does not allow the open carry of any firearm on public sidewalks or right-of-ways. See Section 22-51(a) of the Town of Cary Code of Ordinances."

    http://www.townofcary.org/Department...wn_of_Cary.htm

    so I guess regardless OC or CC is not permitted anywhere in Cary, unless on private business. if that is the case then it's not do any good live in Cary or drive to Cary...best just to stay away from Cary city then...

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    airwolf09 wrote:
    so I guess regardless OC or CC is not permitted anywhere in Cary, unless on private business. if that is the case then it's not do any good live in Cary or drive to Cary...best just to stay away from Cary city then...
    Read closer, CC is not illegal on sidewalks and roads, OC is. That is the problem. Once you are on private property, ie a business, you are OK. You can drive there, but technically could not walk there on a sidewalk an OC. NC state law has full preemption for CC on sidewalks and roads. There is a vague statute that Cary is using to ban OC though. I may fire off an email this weekend. If nothing else just to tweak them a bit about the NCSC cases.

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    chiefjason wrote:
    airwolf09 wrote:
    so I guess regardless OC or CC is not permitted anywhere in Cary, unless on private business. if that is the case then it's not do any good live in Cary or drive to Cary...best just to stay away from Cary city then...
    Read closer, CC is not illegal on sidewalks and roads, OC is. That is the problem. Once you are on private property, ie a business, you are OK. You can drive there, but technically could not walk there on a sidewalk an OC. NC state law has full preemption for CC on sidewalks and roads. There is a vague statute that Cary is using to ban OC though. I may fire off an email this weekend. If nothing else just to tweak them a bit about the NCSC cases.
    but from the Cary townhall website. It stated "The Town of Cary does not allow the open or concealed carry of a weapon while on any public property within our community including on greenways, in public parks or Town facilities, or inTown-owned parking lots. The ordinance does not allow the open carry of any firearm on public sidewalks or right-of-ways. See Section 22-51(a) of the Town of Cary Code of Ordinances."

    So Public propery isn't that including sidewalks and roads?

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    They used to specify no CC or OC on sidewalks and roads. I sent an email to them and got this back. I asked about greenways too. I think they are intentionally leaving it vague and hoping folks don't notice. Look at the 2 sentences that the property includes and compare them.


    "Thank you for bring this to The Towns attention. To give you an up date the wording has been change on the web site to clear up the sidewalk issue. As for the Greenway it falls under Parks.

    Lieutenant Joe Clifton
    Professional Standards Division
    Cary Police Department
    120 Wilkinson Avenue - P.O. Box 8005
    Cary, North Carolina 27512-8005
    (919) 460-4901
    (919) 460-4904 fax
    joe.clifton@townofcary.org"

    Then check this. Thought it's for CC only. Cannot make sidewalks and roads off limits to CC.

    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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