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Thread: Do we ALREADY have "Constitutional Carry" in Utah?

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    Do we ALREADY have "Constitutional Carry" in Utah?

    First the givens:
    Utah Constitution is the Supreme law of Utah along with the US Constitution
    In Utah nothing is illegal UNLESS there is a law making it illegal.
    Utah Constitution Article 1, section 6 says, "The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms." http://le.utah.gov/~code/const/htm/00I01_000600.htm

    Now reading this amendment: The right of the INDIVIDUAL person to keep and bear (Carry) arms for several reasons SHALL NOT BE INFRINGED. Then the state is given to opportunity to define the "lawful USE of arms."

    Now to my question: Carry is a constitutionally protected right. Carry can be either open or concealed... either one is CARRY or "Keep and Bear"..... it is NOT a "USE" of "arms." Use of arms would be things like USING it to defend myself or others or the STATE which are all currently Legal as defined by the state. Other uses which the state considers to be against the law or UNLAWFUL would be armed robbery, attempted homicide, or homicide. Concealed Carry or Open Carry of a weapon IS NOT A USE, it is a form of "carry"

    So, it is logical to read Article 1, Section 6 of the UTAH Constitution to already gives us "CONSTITUTIONAL CARRY."--- I know it protects the right we already have!

    I know we have laws in Utah that CLAIM to make the carry of a concealed weapon in UTAH a crime unless one has a permit allowing one to carry concealed. MY question is: ARE THESE LAWS THAT PROHIBIT THE CARRY OF A CONCEALED WEAPON CONSTITUTIONAL IN LIGHT OF OUR UTAH CONSTITUTION?

  2. #2
    Regular Member jpm84092's Avatar
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    You pose an interesting question in light of your interpretation of the Utah Constitution. it is one however that, in light of the Firearms Regulations promulgated by the Legislature, would need to be tested in the courts. Still, worth pondering.
    My cats support the Second Amendment. NRA Life Member, NRA Instructor: Pistol, Rifle, & Personal Protection - NRA Certified Range Safety Officer, Utah BCI Certified Concealed Firearm Permit Instructor.
    "Permission Slips" from Utah, Pennsylvania, Nevada, Arizona, and Florida. _ Verily, thou shalt not fiddle with thine firearm whilst in the bathroom stall, lest thine spouse seek condolences from thine friends.

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    We mention over and over that the law says what it says, NOT WHAT WE WANT IT TO SAY.

    The Constitution restricts the legislature to defining USE of "arms!" Is carry be it concealed or open part of "keep and bear" or a "use"?

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    Regular Member jpm84092's Avatar
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    Good point Joe. The act of carry of a firearm could be a form of "use" in that it is being carried (used) for personal protection and possibly the protection of others (particularly in the case of loved ones).
    My cats support the Second Amendment. NRA Life Member, NRA Instructor: Pistol, Rifle, & Personal Protection - NRA Certified Range Safety Officer, Utah BCI Certified Concealed Firearm Permit Instructor.
    "Permission Slips" from Utah, Pennsylvania, Nevada, Arizona, and Florida. _ Verily, thou shalt not fiddle with thine firearm whilst in the bathroom stall, lest thine spouse seek condolences from thine friends.

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    Quote Originally Posted by jpm84092 View Post
    Good point Joe. The act of carry of a firearm could be a form of "use" in that it is being carried (used) for personal protection and possibly the protection of others (particularly in the case of loved ones).
    Personal protection, protection of others, and several other USES are protected by the constitution as currently understood. I still believe that "carry" is the same as "bare" and is protected by the Utah and US Constitution as used in the phrase "TO KEEP AND BARE". I am not saying that a court would rule that way in a concealed CARRY case, but it SHOULD!

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    Case Law IS the Law

    What we all need to remember is that a law, even one as declared in the/a Constitution, doesn't really mean much until a judge has ruled on it--it's called case law and case law IS the law. While I don't have the cases at hand, there's plenty of cases out there where a judge rules on what the law means, and it's seemingly in contradiction with what the law apparently says. Furthermore, judges ruling on cases are very reluctant to rule against established precedent when they research it or it's presented to them by the lawyers working the case. If you've ever been in a big law office (I have) there are shelves and shelves and shelves of books on case law. When researching a difficult or complicated case, a lawyer and/or his/her staff might spend hours reviewing case law to find precedents. Don't be in too big a hurry to think you know what the law means until you've researched the case law, unless you want and are willing to be the poster child for the case.

  7. #7
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    Quote Originally Posted by JoeSparky View Post

    I know we have laws in Utah that CLAIM to make the carry of a concealed weapon in UTAH a crime unless one has a permit allowing one to carry concealed. MY question is: ARE THESE LAWS THAT PROHIBIT THE CARRY OF A CONCEALED WEAPON CONSTITUTIONAL IN LIGHT OF OUR UTAH CONSTITUTION?
    That depends entirely on how a majority of our State supreme court rules.

    I would argue that carrying a gun is synonymous with "bearing" of arms and is NOT the same as "using" a gun. Carrying is explicitly beyond legislative purview as you noted. Only the use of a gun can be controlled by the legislature. A fundamental principle of law is that every word has meaning. We are not writing poetry and if three different words are use in the same section, then at first pass, three different meanings must attach. Hence, keeping, bearing, and using a gun must be three distinct things.

    That all said, let's not pretend that judges are not people with their own biases and bigotries. More than one court ruling has used very twisted "logic" or mental gymnastics to arrive at the decision the judge(s) wanted or believed was necessary at the time. Dred Scott comes to mind. As does the case involving bans on 19th century LDS polygamy.

    There is a law on the books imposing criminal penalties for carrying a concealed weapon without a permit.

    There are three ways to correct that.

    1-Convince the legislature/governor to repeal/amend the law. If we lose here one year or the next, we can keep trying the following year, after the next election etc. Nobody goes to jail, loses his job, or is bankrupted on this course.

    2-Violate the law, get charged and convicted and then argue to the State supreme court that the law is unconstitutional. If you lose you face jail time. You may also have opened the door to some very bad precedence if you lack the resources to make a solid case. Even if you win, you may be financially ruined by the time it is all over.

    3-You file a suit seeking an injunction against enforcing the law. This requires some fairly significant personal knowledge of court procedures, case law, precedence (including from non-RKBA cases), and downright talent in the court, OR significant resources to hire those who possess or can obtain these things.

    At the end of the day, it will take a few more pro-RKBA rulings from the SCOTUS--rulings that actually force social change rather than that can be easily skirted with slightly less onerous but just as difficult regulations-- before I'm going to have much faith on consistently getting good rulings from any courts on RKBA.

    Charles

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