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

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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 02:21 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 04:24 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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    Regular Member Jack House's Avatar
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    Oklahoma already has legal OC. Self defense has been declared legal by your constitution. Therefore, OCing for self defense must be ruled legal.

    Posted using my HTC Evo

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    Quote Originally Posted by Jack House View Post
    Oklahoma already has legal OC. Self defense has been declared legal by your constitution. Therefore, OCing for self defense must be ruled legal.

    Posted using my HTC Evo
    And there's no legal precedent for it along with anyone you ask in a position of "power" stating it's illegal. So until there is a legal precedent set (court case, AG ruling, change of laws to specifically state for SD as a legal reason to carry, etc) it isn't something one can do. And while I wouldn't mind being the OC guinnea pig, I simply can't afford to do it given my job and financial situation.

    Also our laws are in conflict with each other. 1272 defines unlawful carry and gives exceptions to allow carry, but then in 1289.6 it outlines "Condititions Under Which Firearms May Be Carried" and it is in 1289.6 where you find the "legitimate purpose" wording. So even if OC is argued as legal via 1289.6 you are still in violation of 1272, and until there is a legal precedent or a change in the law people aren't willing to risk it. Now if someone could cover all of my financial costs (incuding potential repercussions with work) and legal council I would be willing to OC to set the precedent. But I can't afford that and as such I am working with local groups to get the laws changed. It's slower (or maybe not given how long court cases can go on for), but it's safer and we are winning the fight.

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    Quote Originally Posted by Jack House View Post
    Oklahoma already has legal OC. Self defense has been declared legal by your constitution. Therefore, OCing for self defense must be ruled legal.

    Posted using my HTC Evo
    The problem is that your statement is future tense, meaning it will have to go to court to be proven. Most of us here don't have the time or funds to try and prove that. And when it all comes down to it, it depends on if the judge believes it to be legal or not.

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    As the sheep roll over and play dead. They do not want to stand up for what is right and truthfull.

    1272 is most definately contrary to your state constitution. You state constitution specifically says "Cannot be prohibited" 1272 is direct and absolute conflict with that statement in your constitution. Even you most liberal activist judge would agree here. When a law directly conflicts with the constitution, it is not a law. It is absolutely that simple.

    Ok Constitution Article II section 26

    Section II-26: Bearing arms - Carrying weapons.
    The right of a citizen to keep and bear arms in defense of his
    home, person, or property
    ,
    or in aid of the civil power, when
    thereunto legally summoned, shall never be prohibited; but
    nothing herein contained shall prevent the Legislature from
    regulating the carrying of weapons.

    My bold for emphasis.


    Tile 21-1272
    It shall be unlawful for any person to carry upon or about his or her
    person, or in a purse or other container belonging to the person, any
    pistol, revolver, shotgun or rifle whether loaded or unloaded or any
    dagger, bowie knife, dirk knife, switchblade knife, spring-type knife,
    sword cane, knife having a blade which opens automatically by hand
    pressure applied to a button, spring, or other device in the handle of
    the knife, blackjack, loaded cane, billy, hand chain, metal knuckles,
    or any other offensive weapon, whether such weapon be concealed or
    unconcealed, except this section shall not prohibit:

    2. The carrying or use of weapons in a manner otherwise permitted by
    statute or authorized by the Oklahoma Self-Defense Act, Section 1290.1
    et seq. of this title; or

    Totally invalid. They cannot "prohibit", only regulate according to the state constitution. Therefore, by the very first paragraph of 1272 they have flung a cape over the constitution of Oklahoma and said we are going to do what we want to. We don't care what the state constitution says.

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    Well from what I have heard, most of the OK gun laws were signed into effect by a govenor who either had a felony(ies) or was later convicted of a felony(ies) so it shouldn't really be a surprise that he crapped on the constitution. But it still doesn't change the fact that it isn't easy to get the laws changed and that most of use can't afford to fight it by getting arrested in order to get the ball rolling in the courts.

    Not to mention that you still have to get past the arguement that it isn't "prohibited" but simply "regulated" since the overall law does allow for OC in certain situations and CC with a license. And that can really go either way in the courts much like "shall not be infringed" ends up going either way depending on the judge.

  14. #14
    Regular Member hermannr's Avatar
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    Have you ever read this? http://cavalierknight.com/pages/sullivan.act.html

    It is the history of NY gun laws, and the gangster (named Sullivan) that got them passed so innocent travelers in NY could not not defend themselves when they were being robbed by his mobsters.

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