Does KS have pre-emption?
Looks like Wichita city officials believe it is ok to pass ordinances which go against the Kansas State constitution. Apparently, recent CCL ordinances allowed Open Carry in Wichita, but as other cities exercised this right, e.g. Topeka, and Wichita City officials decided to change the CCL ordinance and out right ban OC within the city. I believe this happened in city council meetings in Dec. and should post publicly soon... I started a writing campaign in the Kansas forum to address this with the Wichita Eagle...
Second Reading Ordinances for December 22, 2009 (first read on December 15, 2009)
Ordinance amending Section 5.88.010 of the Code of the City of Wichita, Kansas, pertaining to thecrime of Unlawful Use of Weapons.
ORDINANCE NO. 48-580
An ordinance amending section 5.88.010 of the code of the city of Wichita, Kansas, pertaining to the crime of unlawful use of weapons and repeal of the original section 5.88.010
Does KS have pre-emption?
Gun control isn't about guns -- it is about control.
Link to the ordinance in question. It's a PDF, so the formatting doesn't copy and paste well.
I didn't study the whole ordinance, does this give them a California-style unloaded open carry, except while in a car or other vehicle? See (e) below.
(First Published in The Wichita Eagle on December 25, 2009) 082107
AN ORDINANCE AMENDING SECTION 5.88.010 OF THE CODE OF THE CITY OF WICHITA, KANSAS, PERTAINING TO THE CRIME OF UNLAWFUL USE OF WEAPONS AND REPEAL OF THE ORIGINAL SECTION 5.88.010
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF WICHITA, KANSAS:
Section 1. 5.88.010 of the Code of the City of Wichita, Kansas, shall read as follows:
(1) Unlawful use of a weapon is knowingly:
(a) Selling, manufacturing, purchasing, possessing or carrying any bludgeon, sandclub, metal knuckles or throwing star, or any knife, commonly referred to as a switch-blade, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife, or any knife having a blade that opens or falls or is ejected into position by the force of gravity or by an outward, downward or centrifugal thrust or movement;
(b) Carrying concealed on one's person, or possessing with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slungshot, nightstick, nun-chucks, sap gloves, tomahawk, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly instrument of like character, except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife or a dangerous or deadly weapon or instrument;
(c) Carrying unconcealed on one's person or in any vehicle under one's immediate control, with intent to use the same unlawfully against another, a dagger, dirk, billy,
blackjack, slungshot, nightstick, nunchucks, sap gloves, tomahawk, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly instrument of like character, except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife or a dangerous or deadly weapon or instrument;
(d) Carrying any pistol, revolver or other firearm concealed on one's person, while on property open to the public, except when on one's land or in one's abode or fixed place of business;
(e) Carrying on one's person any unconcealed, loaded firearm, while on property open to the public, except when on one's land or in one's abode or fixed place of business;
(f) Carrying in any vehicle under one's immediate control, while on property open to the public, any loaded firearm, except when on one's land or in one's abode or fixed place of business;
(g) Carrying in any air, land or water vehicle an unloaded firearm that is not encased in a container which completely encloses the firearm;
(h) Carrying a loaded or unloaded firearm in a courtroom or within City Hall;
(i) Drawing a pistol, revolver, knife or any other deadly weapon upon any person.
(j) As used in this section, “throwing star” means any instrument, without handles, consisting of a metal plate having three or more radiating points with one or more sharp edges and designed in the shape of a polygon, trefoil, cross, star, diamond or other geometric shape, manufactured for use as a weapon for throwing.
(2) Subsections (1)(a), (b), (c), (d), (e), (f) and (g), (h), and (i) of this subsection shall not apply to or affect any of the following:
(a) Law enforcement officers, or any person summoned by any such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;
(b) Wardens, superintendents, directors, security personnel and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of a crime, while acting within the scope of their authority;
(c) Members of the armed services or reserve forces of the United States or the Kansas National Guard while in the performance of their official duty; or
(d) Manufacture of, transportation to, or sale of weapons to a person authorized under (a) through (c) of this subsection to possess such weapons.
(e) Qualified law enforcement officers or qualified retired law enforcement officers pursuant to the Law Enforcement Officers Safety Act of 2004, 18 U.S.C. 926B and 18 U.S.C. 926C and amendments thereto.
(3) Subsection (1)(d), (e) and (f) of this section shall not apply to or affect the following:
(a) Watchmen, while actually engaged in the performance of the duties of their employment;
(b) Private detectives licensed by the state to carry the firearm involved while actually engaged in the duties of their employment;
(c) Detectives or special agents regularly employed by railroad companies or other corporations to perform full-time security or investigative service, while actually engaged in the duties of their employment; or
(d) The State Fire Marshal, the State Fire Marshal's deputies or any member of a fire department authorized to carry a firearm pursuant to K.S.A. 31-157 and amendments
thereto, while engaged in an investigation in which such fire marshal, deputy or member is authorized to carry a firearm pursuant to K.S.A. 31-157 and amendments thereto.
(e) Special deputy sheriffs described in K.S.A. 2001 Supp. 19-827, and amendments thereto, who have satisfactorily completed the basic course of instruction required for permanent appointment as a part-time law enforcement officer under K.S.A. 74-5607a and amendments thereto.
(4) Subsection (1)(i) of this section shall not apply to or affect historical reenactors and actors when engaged in performances and demonstrations. Provided, however, this subsection shall only apply to those performances and demonstrations which have been approved in advance in writing by the city manager or his designee.
(5) Subsection (1) (d), (e), (f), and (g) shall not apply to any person who sells, purchases, possesses or carries a firearm, device or attachment which has been rendered unserviceable by steel weld in the chamber and marriage weld of the barrel to the receiver and which has been registered in the national firearms registration and transfer record in compliance with 26 U.S.C. 5841 et seq. in the name of such person and, if such person transfers such firearm, device or attachment to another person, has been so registered in the transferee's name by the transferor.
(6) Subsections 1(d), 1 (f), and 1 (g) shall not apply to:
(a) any person carrying a concealed weapon as authorized by K.S.A. 2008 Supp., 75-7c01 through K.S.A. 75-7c17, and amendments thereto.
(b) the United States attorney for the district of Kansas, the attorney general, or any district attorney or county attorney, while actually engaged in the duties of their employment or any activities incidental to such duties; any assistant
United States attorney if authorized by the United States attorney for the district of Kansas and while actually engaged in the duties of their employment or any activities incidental to such duties; any assistant attorney general if authorized by the attorney general and while actually engaged in the duties of their employment or any activities incidental to such duties; or any assistant district attorney or assistant county attorney if authorized by the district attorney or county attorney by whom such assistant is employed and while actually engaged in the duties of their employment or any activities incidental to such duties. The provisions of this paragraph shall not apply to any person not in compliance with Chapter 92, Section 4, of 2009 Session Laws of Kansas, and amendments thereto.
(7) Subsection 1 (d) shall not apply to licensed hunters or fishermen, while
engaged in hunting or fishing;
(8) It shall be a defense that the defendant is within an exemption.
(9) Any person who violates any of the provisions of this section within the corporate limits of the city shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed two thousand five hundred dollars or by imprisonment for not more than one year, or by both such fine and imprisonment.
(10) In addition to the penalty for violation of any of the provisions of this section, it shall be the duty of the municipal court judge:
(a) To order any weapon seized in connection with such violation which is not a firearm to be forfeited to the city and the same shall be destroyed or caused to be destroyed by the chief of police whenever the weapon is no longer needed for evidence;
(b) To order any weapon seized in connection with such violation when no longer needed for evidentiary purposes, shall, in the discretion of the trial court, be:
(ii) Forfeited to the Wichita Police Department for use within the police department, for sale to a properly licensed federal firearms dealer or for trading to a properly licensed federal firearms dealer by the police department for other new or used firearms or accessories for the Police Department’s use; or
(iii) Forfeited to the Kansas Bureau of Investigation for law enforcement, testing, comparison or destruction by the Kansas Bureau of Investigation forensic laboratory.
If weapons are sold as authorized above, the proceeds from any such sale shall be credited to the asset seizure and forfeiture fund of the Wichita Police Department. All transactions involving weapons disposed of under this subsection must have the prior approval of the city manager. All sales of weapons are subject to review by the city council;
(c) Any stolen weapon confiscated in connection with any violation of this section other than subdivision (a) of this subsection shall be returned to the person entitled to possession, if known, when the same is no longer needed for evidence. All other weapons shall be disposed of as provided in subsection (9)(a) and (b) of this section.
Section 2. The original of Section 5.88.010 of the Code of the City of Wichita, Kansas, is hereby repealed.
Section 3. This ordinance shall be included in the Code of the City of Wichita, Kansas, and shall be effective upon its passage and publication once in the official city paper.
PASSED by the governing body of the City of Wichita, Kansas, this 22nd day of December, 2009.
Carl Brewer, Mayor
Karen Sublett, City Clerk
Approved as to Form:
Gary E. Rebenstorf
Director of Law and City Attorney
State Constitution in Kansas allows OC, but allows county/city to "regulate". The problem is that some cities out right ban the ability to carry any firearm unless you have a CCL.
Thanks for the research...I did not even think that the Eagle would publish the change. I agree that the language allows unloaded open carry, but I believe this was not the intent, per discussions with my city contact. The did not want to allow open carry at all, and did not put in any provisions allowing open carry of firearms. I assume that they might have put the "unloaded" to allow folks to carry firearms to the gun show that happens at Century II. Sounds like once again the intent of what they wanted to ban did not happen and now they are going to dodge the questions pertaining to "unloaded open carry". They also won't bother to train police officers with what they can and can not do from a search/check perspective like they have outlined in California...