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Thread: Open Carry *MAY* already be legal - An Assignment

  1. #1
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    Open Carry *MAY* already be legal - An Assignment

    First off, IANAL (I am not a lawyer).

    Second, IANAL

    Background:

    HB 1400 is the bill that would "allow" open carry in the state of OK.

    HB 1400 would modify Title 21 Section 1289.6 (Conditions under which firearms may be carried) to include the following reason why people could openly carry a loaded or unloaded firearm:

    When carried in a holster that is wholly or partially visible or in a scabbard or case designed for carrying firearms that is wholly or partially visible and the person is eighteen (18) years of age or older; or
    There is already language in this section of code that states:

    For any legitimate purpose not in violation of the Oklahoma Firearms Act of 1971, Sections 1289.1 through 1289.17 of this title or any legislative enactment regarding the use, ownership and control of firearms.
    Now, since Title 21 starts off my saying
    The Legislature finds as a matter of public policy and fact that it is necessary for the safe and lawful use of firearms to curb and prevent crime wherein weapons are used by enacting legislation having the purpose of controlling the use of firearms, and of prevention of their use, without unnecessarily denying their lawful use in defense of life, home and property, and their use by the United States or state military organizations and as may otherwise be provided by law, including their use and transportation for lawful purposes.
    I then submit that since the legislature of the state notes the lawful use of firearms in defense of life, home and property, then that must make it a legitimate purpose. Therefore open carry under 1289.6 is already legal due to defense of life, home, and property begin legitimate.

    I am going to send my thoughts on this to the representative who authored HB1400. I think all that needs to be done is to define the word "open" as it relates to section 1289.6. It seems to me that is all that the amendment is really doing anyway.

    Now, the assignment.

    I would like each person to contact local law enforcement and ask them what would happen to a person openly carrying a holstered pistol. Ask what code or statute they may be cited under and post the answer here.

    After I hear back or talk to the author of this bill, I will post what he says.

    Once again IANAL
    Last edited by hrdware; 02-23-2011 at 03:21 PM. Reason: IANAL

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    So I contacted the City Attorney who directed me to contact the District Attorney's office. While talking to an Assistant City Attorney, he told me open carry was illegal. I asked him what statute it violated. He said, I don't know, but we arrest people for it all the time. Then he told me if I Googled it, I could probably find it.

    I called the DA's office, left a message, no return call. I called OSBI for a different reason and ended up talking to someone in their legal department who told me it would be up to each DA's office on how broad or narrow they interpreted "any other legitimate purpose".
    Last edited by hrdware; 02-25-2011 at 05:24 PM. Reason: readability

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    I have an ADA as a customer, I will run this past him for an opinion soon. I also have Sheriff Deputies in here all the time, I have had discussions with them a number of times, always with a pro carry stance.

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    Quote Originally Posted by hrdware View Post
    So I contacted the City Attorney who directed me to contact the District Attorney's office. While talking to an Assistant City Attorney, he told me open carry was illegal. I asked him what statute it violated. He said, I don't know, but we arrest people for it all the time. Then he told me if I Googled it, I could probably find it.

    I called the DA's office, left a message, no return call. I called OSBI for a different reason and ended up talking to someone in their legal department who told me it would be up to each DA's office on how broad or narrow they interpreted "any other legitimate purpose".
    I had a chat with an ADA here and his preliminary position was that there is merit to the idea that open carry may already be argued as legal. He wants a report from me which they can follow up on and possibly push on to the AG's office for a ruling.

    This may be redundant with the passage of the open carry bill, thoughts?

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    Quote Originally Posted by JBURGII View Post
    I had a chat with an ADA here and his preliminary position was that there is merit to the idea that open carry may already be argued as legal. He wants a report from me which they can follow up on and possibly push on to the AG's office for a ruling.

    This may be redundant with the passage of the open carry bill, thoughts?
    I don't see OC passing this session due to all the strong arm techniques and backroom politics going on at the capital. The closes thing we may get is Rep Tibbs Legislative referendum going to a vote of the people. If it passes we would get concealed with an open option in 2013.

    I would say write the report. If I can help in anyway let me know.

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    Quote Originally Posted by hrdware View Post
    I don't see OC passing this session due to all the strong arm techniques and backroom politics going on at the capital. The closes thing we may get is Rep Tibbs Legislative referendum going to a vote of the people. If it passes we would get concealed with an open option in 2013.

    I would say write the report. If I can help in anyway let me know.
    I will certainly keep you updated, I have strong support from local law enforcement and DA's office, I will do a bit more research and start writing a rough draft this week.

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    Quote Originally Posted by JBURGII View Post
    I will certainly keep you updated, I have strong support from local law enforcement and DA's office, I will do a bit more research and start writing a rough draft this week.
    Good deal!! Glad to hear the local DA agrees with these thoughts.

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    Quote Originally Posted by JBURGII View Post
    I will certainly keep you updated, I have strong support from local law enforcement and DA's office, I will do a bit more research and start writing a rough draft this week.
    Oh and when you get this done, if you could post it that would be great.

    Also if it goes to the AG and comes back in our favor, I would love to get a copy of the ruling so I can show a few Reps at the capital and see what they have to say about it. Maybe find a way to get an OC rally or something set up, or at least get the word out.

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    I sure hope it does go in our favor.

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    Quote Originally Posted by hrdware View Post
    Oh and when you get this done, if you could post it that would be great.

    Also if it goes to the AG and comes back in our favor, I would love to get a copy of the ruling so I can show a few Reps at the capital and see what they have to say about it. Maybe find a way to get an OC rally or something set up, or at least get the word out.
    Anything I get will be posted asap, I am gathering some information at the moment and will be working with my ADA and other LEO who I hope will add some weight behind the opinion.

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    Any news on this

    Any news or updates about this?

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    I too am wondering if there's been any word on this.

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    Quote Originally Posted by Aknazer View Post
    I too am wondering if there's been any word on this.
    I was in contact with JBURGII a week or so ago and he is still working on finalizing his letter/report to send to the AG. He mentioned that speaking with the ADA and some other lawyers in the same building, they seemed to think it would be legal.

    JBURGII may have more to add, but that is the last I had heard about it.

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    Quote Originally Posted by hrdware View Post
    I was in contact with JBURGII a week or so ago and he is still working on finalizing his letter/report to send to the AG. He mentioned that speaking with the ADA and some other lawyers in the same building, they seemed to think it would be legal.

    JBURGII may have more to add, but that is the last I had heard about it.
    Hey guys, I have been waiting to get a consensus from a group of legal minds (ADA, lawyers, etc..) and possibly written statements to follow the query to the AGs office. I had been waiting to get an idea whether OC would pass before I submit this but it seems to be a good idea regardless. I will get on it this following week and get it sent. Sorry to keep ya'll hanging, it has been a very busy season for advocates!

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    JBURGII I might be able to talk with Rep. Martin, would you like me to pass this info on to him or would you rather wait?

    EDIT: Nevermind it doesn't matter as I've talked with him already and he said its dead for the year.
    Last edited by Aknazer; 04-08-2011 at 03:55 PM.

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    Has anyone heard from JBURGII on any progress dealing with this? It's been almost three weeks since he last posted and I'm curious!

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    Well I ended up asking an officer who was in the BX on base about this (he was retired military and works for a local PD now and I brought this up while talking about gun safes). He said that it would be a misdemenor to OC, but if you have a CWP it would then be a felony. When I asked him what you would be charged with he couldn't answer and spoke gibberish (basically started tripping over his words trying to come up with something and it sounded along the lines that citizens simply shouldn't). I then asked him what part of the law one would be violating if they were to OC and he again couldn't answer me. When I brought up the OC law that stalled he stated that the issue police have with that law is that ANYONE could OC should that law pass and they didn't like that because it meant that if mister mentally unstable man bought a gun from a private source (since by him an FFL would deny him the sale but a private source wouldn't) that it would be legal for him to carry it and there would be nothing they could do about it. Also he seemed to try and mention something about how cops should be able to check people out to make sure they can legally carry. Finally I brought up the info in this thread (just about the exceptions bullet and legislature finding having a gun for self defense being reasonable; not about the work to get OC ruled already legal) and he said that there's already case law in the state that says the courts don't find OC for self defense as legal.

    Overall I think he was uninformed and was just spouting things off to try and sound official while trying to promote an anti-OC view. I think that's why he was unable to give me ANY info on what laws you would be breaking or any actual cases (he just said they were out there), but I figured I would report back here what I had been told. Sadly I'm not quite sure which station he works for but it sounded like he said MPD. I wish I would have tried to correct him on a couple of points, but my speaking skills need work; especially in dealing with people such as him that require you to be more assertive in order to even get a word in edgewise.
    Last edited by Aknazer; 05-18-2011 at 01:54 AM.

  18. #18
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    Curious

    Hey guys. New to the site. Found it looking for information on concealed carry in Ok. I am taking my class Saturday. I was curious if anything else has been done. I would love to see open carry in Ok. I think it is awesome that you guys are taking measures to get something done.

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    There hasn't been any word in about two months now. I'm thinking of doing some research and making some contacts soon on the subject if there isn't any word by the middle of the month.

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    I would love to see open carry in OK. If anyone needs help with this let me know and I will do what I can. I understand that a bill was just passed concerning this and allowing open carry to those who have filed an emergency restraining order or have already filed a restraining order, but everything else was ripped out. I can't wait each year to see about this coming back up. I also know the new gov. of OK is for open carry, too bad the house and senate usually have issues with this.

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    Hi folks, I dont live in OK,but would love to see you guys be able to OC. My question is. Does your gun laws specificaly state that you cant OC? if it does not then why would it not be legal? up here in NC,our laws dont say OC,it just says where we CANT carry. CC is another set of laws, so OC IS legal here, but there are some people that want to see it in writing first before they get the guts to do it. Laws usually dont tell you what you can do,just what you cant do. Just my 2c. Good luck .

  22. #22
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    Quote Originally Posted by wethepeople View Post
    Hi folks, I dont live in OK,but would love to see you guys be able to OC. My question is. Does your gun laws specificaly state that you cant OC? if it does not then why would it not be legal? up here in NC,our laws dont say OC,it just says where we CANT carry. CC is another set of laws, so OC IS legal here, but there are some people that want to see it in writing first before they get the guts to do it. Laws usually dont tell you what you can do,just what you cant do. Just my 2c. Good luck .
    Oklahoma law specifically prohibits open carry. It then lists several exceptions to the law, but OC for the sake of OC isn't one of those exceptions. Legitimate purpose is an exception, and part of the law legitimizes protection of home, life, property. We have been told it is illegal for so long that no one has the time or money to try to push it through in court.

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    IMHO most of the opposition is coming from the past AG (Edmundson) DAs and Sheriffs in metro areas, and IIRC the bill was killed partly from the fact that you have to be 21 to purchase a handgun in Oklahoma. As I understand it, the age in the bill is being adjusted for it's next debut and Gov. Fallin and AG Pruitt are working to change the other attitudes.

    As for the LEO claiming that a prohibited person (mental illness) could purchase a gun through a private sale and then be able to carry legally is complete HORSE HOCKEY! If you as a private citizen sell a gun to a prohibited person, then you are liable for the sale, even though you didn't have to go through FFL. If a prohibited person acquires a gun, no matter how (inheritance?), prohibited is prohibited and it is your responsibility to know the applicable law. The LEO attitude certainly makes me think that it is a case of "You aren't a LEO, so you shouldn't be allowed to carry openly, only us." This speaks clearly to the training/instruction they are receiving through CLEET.

    One statistic I would like to see included in the Annual Crime Report is how many weapons used in shootings state wide are legally owned, and how many are illegal, and of the persons who commit gun crimes, how many were prohibited before they committed the gun crime. I have already contacted my State Rep to see if he can get those breakouts included. His opinion is, "probably not this year." But he is pro-open carry and will continue to work on acquiring these stats.

    I have bought several guns through private sales in which we went to his local gun dealer and did the transfer there. The only guns I have bought through private sales that didn't get transferred through a FFL was guns that were never in the registry.

    Basically, if you have bought a gun since the recording of sales (1970's?), and you sell that gun, you should consider transferring it through a FFL. That way, if the gun later becomes involved in a crime, you have documentation that you were not the one to pass the gun to the criminal. It is also a good test of the legitimacy of the buyer.

    It may be time to start organizing some empty-holster gatherings ... but 150miles one way is a bit of a drive for us.
    cheers - okboomer
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    Exercising my 2A Rights does NOT make me a CRIMINAL! Infringing on the exercise of those rights makes YOU one!

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    Excellent Idea

    OKBoomer has the right idea. All of us that have CLW's and are members here should consider garnering like people in our own areas to start carrying empty holsters in public. This is not to say that you should leave your weapons at home but to still carry concealed with an extra holster thats exposed and empty. This would not only show support for open carry but also start to change the public attitude towards open carry. Be prepared to answer any and all questions that will be forthcoming from the sheeple and be prepared to answer any questions from law enforcement as this is a must identify state when approached by LE. This will also give us an idea of what areas we as a group need to work on to change attitudes of the sheeple and make it easier when the time comes (hopefully soon) to openly carry. Exposure is a great way to provide necessary information to the people who don't know about their rights to defend themselves.
    Git her done Oklahoma

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    Did anyone ever ask for or obtain an opinion from the State AG on the current legality of OC under the "legitimate purpose" exception?

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