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Thread: Town of Cary Violating Preemption

  1. #1
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    Town of Cary Violating Preemption

    The Town of Cary is Violating North Carolina Firearms Preemption!

    North Carolina General Statute 14-409.40 provides: (f) 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. Nothing contained in this Section Prohibits Municipalities or Counties from Exercising Powers provided by Law in Declared States of Emergency under Article 36A of this Chapter.

    North Carolina General Statute 14-415.23 provides: 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.

    NOW, HERE IS THE THING:

    Sec. 22-51(d) of Cary Code is NOT Authorized under either North Carolina General Statute 14-409.40 OR North Carolina General Statute 14-415.23!

    Therefore, Open Carry or Concealed Carry of a Firearm on Public Streets, or Public Sidewalks is PERFECTLY LEGAL and Preempted under North Carolina Law!

    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.

    Sec. 22-51(d) is InValid and Preempted!

    The Town of Cary can not Prohibit Loaded Open Carry or Concealed Carry (with a Permit) on any Public Street or Sidewalk, so as long as the Public Street or Public Sidewalk is not in the in the Immediate Appurdent Premises of a Public Building or Public Park!

    (Here is the link Straight to the Police Website): http://www.townofcary.org/Department...wn_of_Cary.htm

    The Town of Cary does not allow the open or concealed carry of a weapon while on any..., greenways, in public parks or Town facilities, or in Town-owned parking lots (UNFORTUNATELY, THIS IS LEGAL).
    The ordinance does not allow the open carry of any firearm on public sidewalks or right-of-ways (THIS SENTENCE IS ILLEGAL AND PREEMPTED).

    THEREFORE, it is Perfectly Legal to Open Carry a Firearm on your way, to say, Chick-Fil-A, so as long as you do not come within the Immediate Apprutant Premises of a Public Building or on the Actual Premises of a Public Park! If Cary Police make an Arrest under Sec. 22-51(d) you can Win in Court! The State of North Carolina does not allow Cary to Regualte Firearms on Public Streets or Public Sidewalks!
    Last edited by aadvark; 11-10-2010 at 12:52 PM.

  2. #2
    Regular Member sultan62's Avatar
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    It is my understanding that Cary was somehow 'grandfathered in', but I've never seen evidence of this and have wondered about it myself.
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    There is no such thing as 'Grandfatherd-in' beyond what is Permissable under North Carolina General Statutes on the Subject-matter of Firearms.
    Plain and Simple: Cary can NOT Prohibit Open or Concealed Carry on Public Streets or SideWalks, provided; that Cary may do so when such Act is in Appurtenant Premesis of a Public Building or on the Actual Public Park Property, or Greenway therein.

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    Regular Member sultan62's Avatar
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    If you want to go OC in Cary to be a test case, feel free. I don't have the money.
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    Quote Originally Posted by aadvark View Post
    North Carolina General Statute 14-409.40 provides: (f) 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...
    § 160A‑189. Firearms.
    A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law‑enforcement officers,and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property. Nothing in this section shall be construed to limit a city's authority to take action under Article 36A of Chapter 14 of the General Statutes. (1971, c. 698, s. 1.)

    Well right here it says the municipality may "regulate the display of firearms on the streets, sidewalks..." etc...

    Now dig into a definition of "display" before you make a blanket call of don't worry you'll win in court! It aint right but it's there...

    Here would be a good question for the AG's office. Is "display" reasonably defined as holding a gun in your hand? Or is Cary allowed to "regulate" the display of firearms all the way down to prohibiting a holstered handgun within sight of our fellow sheeple?

    Someone tackle that I'm out of town for bidness.
    Last edited by Smith45acp; 11-10-2010 at 08:58 PM.
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

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    This is what I sent to the DOJ via the online submission tool:




    § 160A‑189. Firearms.
    .....,and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property. Nothing in this section shall be construed to limit a city's authority to take action under Article 36A of Chapter 14 of the General Statutes. (1971, c. 698, s. 1.)

    How is "display" of a firearm defined? Is it reasonably defined as walking around with a gun in your hand or the like? Or is a holstered handgun considered "diplayed"? What about a rifle in a window rack?

    I would like to believe our state's preemption clauses would preclude a municipality from issuing blanket bans on visible firearms carried / transported in a safe manner.

    What is the difference between infringing someone's right to bear arms and their means to reasonably do so?

    Please advise.

    Regards,
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

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    Regular Member paramedic70002's Avatar
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    Not sure how it works in NC but across the line here in VA the AG does not answer legal questions from the unwashed masses. Might want to get a sympathetic legislator to make an official inquiry, therefore getting an official legal opinion.
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

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    Quote Originally Posted by paramedic70002 View Post
    Not sure how it works in NC but across the line here in VA the AG does not answer legal questions from the unwashed masses. Might want to get a sympathetic legislator to make an official inquiry, therefore getting an official legal opinion.
    Dreamer seems to get answers from them somehow...

    Anyway you were right in this case, so far. I got a generic response with a firearms brochure pdf. And I think my question was pretty darned specific including relevant statutes.

    I'm going to keep pushing.
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

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    Ms. McVeigh,

    I'd like to thank you for taking time to respond to my questions.

    However I feel I'm getting a very general response to a very specific question. I've read the brochure before, and I just read it again but it does not address my question:

    What is the legal definition of "display" as it reads in G.S. § 160A‑189 and as it pertains to a holstered handgun?

    If I can't get a straightforward and clear response from my DOJ then where should I turn next?

    Thank you for your time,

    A




    On Fri, Nov 12, 2010 at 10:18 AM, McVeigh, Doreen <DMcVeigh@ncdoj.gov> wrote:
    Thank you for your recent email communication on the Department of Justice website. Your request for information has been forwarded to me for response.

    I am attaching a copy of our current firearms’ publication. After you have read the publication, if you still have questions, please give us a call at (919) 716-6725.

    Thank you.


    Doreen McVeigh
    Legal Assistant
    Department of Justice
    Attorney General's Office
    Law Enforcement Section
    Telephone: (919) 716-6591
    Facsimile: (919) 716-6760
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

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    I don't want to call her, I want a response in writing.
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

  11. #11
    Regular Member elixin77's Avatar
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    and by the looks of it, they don't want to give it to you. It technically is a loaded question that rewrites the law depending on how they answer.
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    Yeah you're right. Her last email said she couldn't give "personal legal advice" to a "private citizen". How frustrating is it that it's this impossible to get a clear answer on what a statute really means?

    Any judge or da will tell you ignorance of a law is not an excuse for violating it. And no one is willing to explain a law to you when you're a lowly citizen asking.

    I have very little faith in the system.
    "In the beginning of a change the patriot is a scarce man, and brave, and hated and scorned. When his cause succeeds, the timid join him, for then it costs nothing to be a patriot." - Mark Twain

    I don't bother with pragmatic statistics while discussing my constitutional rights. The issue is far less complex, to me. Free men should be able to act like free men.

  13. #13
    Regular Member Dreamer's Avatar
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    Yeah, there for a while, the NC AG was pretty helpful, but I think they finally got wise to my questions, and seemed to have clammed up somewhat with regards to answering some of these tricky questions.

    I think the AG's refusal to give guidance to citizens might also be due to the fact that the State of NC is currently involved in a multi-pronged lawsuit with SAF (and Alan Gura) regarding several NC firearms laws.

    The last time I called the AG, they essentially blew e off, and told me that if I wanted legal advice about a law I considered "unconstitutional", I should speak to a private attorney.

    Our "public servants" are getting more and more attitude, and less and less respectful of the public whom they ostensibly serve. It won't be long before the sort of thing we do on this forum (activism, legal research, public advocacy) becomes a crime--mark my words...
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
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