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Thread: "where, or as otherwise permitted, by state law"...............

  1. #1
    Regular Member Bikenut's Avatar
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    "where, or as otherwise permitted, by state law"...............

    I've noticed that many local ordinances contain the phrase

    "where, or as otherwise permitted, by state law"

    and I have become a bit concerned because... what exactly is the meaning of that phrase? Does it mean that if there is no law against an activity then state law permits that activity?

    Or does it mean that if there isn't a law that defines that activity then, in the absence of a an actual law to define the activity, it isn't permitted?

    I confess I can see how it can be interpreted (oh how I hate that progressive agenda word!!!) either way but I am at a loss as to what the actual legal meaning would be.

    And I am also distrustful of any lawmaker that leaves loopholes in their laws such as that phrase since it speaks of an inherent deviousness and purposeful covering of a cracked portion of human anatomy.

    So... what say all of you?
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

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    Regular Member Bearhawk's Avatar
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    Hey Bikenut,
    I alluded to that in my post about the City of Plainwell's ordinances where it says "It shall be unlawful for any person to:... 'Possess, carry, expose, display, discharge, utilize or have any firearm or other dangerous weapon in any public place unless expressly permitted by law.'"

    As you know, there is no law against open carry. Since open carry is not expressly permitted "by law" wouldn't this ordinance make open carry unlawful? Of course this is preempted but it does need addressed. As you said this sure looks like a loophole for the city. I don't want to be the one to have to test it in court.

    I would like to know too if anyone has input. I want to know what needs addressed to the city. I'm just thankful I don't live within their jurisdiction but I do shop there.
    "Fathom the hypocrisy of a government that requires every citizen to prove they are insured...
    but no one must prove they are a citizen!” Ben Stein

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    Regular Member PDinDetroit's Avatar
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    Cross-Posted to MGO in the Legal Beagle Section...

    http://www.migunowners.org/forum/sho...d.php?t=119960

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    The way I read, MCL 123.1102

    Quote Originally Posted by Bikenut View Post
    I've noticed that many local ordinances contain the phrase

    "where, or as otherwise permitted, by state law"

    and I have become a bit concerned because... what exactly is the meaning of that phrase? Does it mean that if there is no law against an activity then state law permits that activity?

    Or does it mean that if there isn't a law that defines that activity then, in the absence of a an actual law to define the activity, it isn't permitted?

    I confess I can see how it can be interpreted (oh how I hate that progressive agenda word!!!) either way but I am at a loss as to what the actual legal meaning would be.

    And I am also distrustful of any lawmaker that leaves loopholes in their laws such as that phrase since it speaks of an inherent deviousness and purposeful covering of a cracked portion of human anatomy.

    So... what say all of you?
    If the wording ”Where, or as permitted, by State Law, was interpreted and used, to enforce
    a Local Ordinance that is more stringent that State Law, then this would be another illegal Ordinance.

    MCL 123.1102 is very articulate, and covers many
    1. Shall not Enact
    2. Shall not Enforce
    3. Or regulate in any other Manner, I think, this covers all expressibility

    In 1990, the Michigan legislature enacted MCL 123.1102 which provides, in pertinent part: A local unit

    of government shall not impose special taxation on, enact or enforce any ordinance or regulation

    pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer,

    transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or

    components of pistols or other firearms, except as otherwise provided by federal law or a law of this

    state.

  5. #5
    Regular Member PDinDetroit's Avatar
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    Quote Originally Posted by esq_stu (MGO)
    I think there is a lack of understanding by the drafters as to what it means as well. They want to try and avoid a conflict with state law without really knowing whether they have the power to regulate something or not or whether they are preempted or not. So they leave it up to the regulated community, the police, the prosecutors, and ultimately, the courts to decide what it means.

    In the context of firearm possession, I don't think they consider the state constitution to mean anything.
    See above.
    Last edited by PDinDetroit; 01-20-2011 at 09:46 PM.

  6. #6
    Regular Member Bikenut's Avatar
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    Originally Posted by esq_stu (MGO)
    I think there is a lack of understanding by the drafters as to what it means as well. They want to try and avoid a conflict with state law without really knowing whether they have the power to regulate something or not or whether they are preempted or not. So they leave it up to the regulated community, the police, the prosecutors, and ultimately, the courts to decide what it means.

    In the context of firearm possession, I don't think they consider the state constitution to mean anything.
    Quote Originally Posted by PDinDetroit View Post
    See above.
    I think there is a clear and obvious division in how people think. In one camp there are people who believe in responsible freedom from being controlled and consider all things allowed unless specifically not allowed by law (or morals/ethics). In the other camp are people who believe that being controlled equals the freedom from responsibility (including the need for morals/ethics) and consider all things not allowed unless specifically allowed by law.

    Never ever will those two camps come to any agreement. But when the "not allowed unless we say it is with the laws we make" camp is in power they will be sure to cover their butts with what they think are clever caveats like....

    "where, and as otherwise, permitted by law"

    However... what I am concerned about is that phrase could be interpreted to mean that since there is no law in reference to open carry then, because there is no law "permitting", it is not permitted and thus open carry is illegal.

    And that phrase has been added by municipal governments not just as a means of covering their butts but also as a means of making their local law enforceable as soon as some judge rules that the absence of a law does not automatically mean the activity is legal.

    Either that or I have come to trust elected officials just as far as I can pee into a hurricane.

    Or I am beginning to understand how lefty elitist control freaks think... and that is a very scary thing.
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

  7. #7
    Regular Member DanM's Avatar
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    Quote Originally Posted by Bikenut View Post
    "where, or as otherwise permitted, by state law" . . .
    what exactly is the meaning of that phrase?
    It's a CYA for local authorities too lazy to actually check whether or not their ordinances are actually legal or not, or who think you're too lazy to check and will just comply with whatever is written. That's what that phrase boils down to.
    Last edited by DanM; 01-21-2011 at 09:09 AM.
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