Kansas Attorney General Opinion - localities cannot ban open carry!

[marine0300]

March 11, 2011 Kansas Attorney General Derek Schmidt issued an opinion that concealed carry permit holders can legally open carry a firearm with state preemption of local city ordinances and county resolutions. In addition to preemption, cities and counties cannot make open carry laws that require firearms to be unloaded while carrying and those municipalities may only regulate unlicensed open carry not licensed permit holders on property open to the public.

A grass roots organization, Open Carry Kansas, requested the opinion through Kansas Legislator, Representative Lana Gordon, District 52 of Topeka.

Open Carry Kansas appreciates the support of the Kansas State Rifle Association and the mentorship of President Patricia Stoneking in helping make this opinion possible.

The opinion reads as follows:

March 11, 2011

ATTORNEY GENERAL OPINION NO. 2011- 006

The Honorable Lana Gordon
State Representative, 52nd District
300 SW 10th Avenue
Topeka, Kansas 66612

Re: Cities and Municipalities—Miscellaneous Provisions—Firearms and
Ammunition; Regulation by City or County, Limitations; Openly Carrying a
Loaded Firearm.

Synopsis: A city or county may regulate the manner of openly carrying a loaded
firearm on the person of a concealed carry permit holder. A city or county
may regulate the manner of openly carrying a loaded firearm on the
person of a non-holder of a concealed carry permit holder. A city or
county may regulate the manner of openly carrying a loaded firearm in the
immediate control of a non-holder of a concealed carry permit holder,
whether on public or private property. A city or county may not regulate
the manner of openly carrying a loaded firearm in the immediate control of
a holder of a concealed carry permit when such holder is on public
property. Cited herein: K.S.A. 2010 Supp. 12-16,124.

* * *
Dear Representative Gordon:
As Representative for the 52nd District, you ask for direction and clarification concerning
K.S.A. 2010 Supp. 12-16,124(b)(2) that provides:

Nothing in this section shall: . . . prohibit a city or county from regulating the
manner of openly carrying a loaded firearm on one's person; or in the immediate
control of a person, not licensed under the personal and family protection act
while on property open to the public;


Representative Lana Gordon
Page 2
The italicized language in that provision was added to the statute during the 2007
legislative session.1

In general, courts will first look to the plain language of a statute to determine its
meaning .2 From the plain language of this statutory provision, several elements of its
meaning are clear. First, the overall purpose of this provision is to set forth an
exception to the state’s general policy of pre-emption of local authority to regulate
firearms. Second, the 2007 amendment to this statutory language clarifies the scope of
that exception by narrowing it to allow cities and counties to regulate only the open carry
of firearms, not the concealed carry of firearms. Third, the 2007 amendment further
clarifies the scope of that exception by narrowing it to allow cities and counties to
regulate only the open carry of loaded firearms, not unloaded firearms.

Thus, it is clear that this provision of law preserves the authority of cities or counties to
regulate the open carrying of loaded firearms but does not preserve cities or counties’
ability to regulate the concealed carry of firearms or their ability to regulate the open
carry of unloaded firearms.

The remaining language in this statutory provision further qualifies the authority of cities
and counties to regulate the open carrying of loaded firearms. However, the meaning of
the remaining language is not apparent from a plain reading of it. Its ambiguity results
from two items of punctuation: The placement of the semicolon in this provision has
created a sentence fragment that has no independent meaning, and the placement of
the comma in this provision results in uncertainty about what word or words the phrase
after the comma is intended to modify.

Thus, the plain language of this statutory provision reveals some but not all of the law’s
meaning. When the plain language of a statute does not reveal the law’s meaning,
courts then will look behind the statutory language and attempt to ascertain the intent of
the legislature in enacting the ambiguous statutory language.3

The legislative history of this provision is instructive. When introduced, the 2007 bill
initially deleted all exceptions to the prohibition against cities and counties regulating the
purchase, transfer, ownership, storage or transporting of firearms or ammunitions.4
That suggests that the original intent of the 2007 amendment was to create uniformity in
the state law to advance the policy of preemption of local authority to regulate firearms.

After the initial bill was introduced, spirited testimony was presented before the House
Federal and State Affairs Committee by proponents and opponents of the bill.5 Much of

1 L. 2007, ch. 166, § 1.
2 Tompkins v. Bise, 259 Kan. 39, 43 (1996).
3 State v. Raschke, 289 Kan. 911, 914 (2009).
4 2007 HB 2528.
5 Minutes, House Federal and State Affairs Committee, February 20, 2007.


Representative Lana Gordon
Page 3

the testimony appears to center on a debate about the merits or demerits of a policy of
preemption. Following amendments made by this Committee and the House Committee
of the Whole, the bill arrived in the Senate in substantially the same form that now
appears in K.S.A. 2010 Supp. 12-16,124(b)(2).

Thus, it would seem that reading the ambiguous language of this statutory provision in
the manner that results in the greatest preemption of local control over the conduct of
concealed carry permit holders would be the interpretation most consistent with the
apparent legislative intent.6

To that end, it is necessary to analyze the variables in the remaining language of the
statutory provision. There are two variables remaining in the language: Its application
to concealed carry permit holders versus its application to non-permit holders and its
application to persons openly carrying a firearm on their person (whether on public or
private property) versus its application to persons openly carrying a firearm in their
immediate control while on property open to the public.

Considering each possible combination of those variables results in four factual
circumstances in which this provision may be applied. We consider those below and, in
each case, offer our conclusion as to the most likely interpretation of the statutory
provision in light of the language of the statute and the overall legislative intent of
promoting preemption.

First, regulation of the manner of openly carrying a loaded firearm on the person of a
concealed carry permit holder. We conclude that a city or county may regulate because
the language of the statute is clear and unambiguous. The pertinent language would be
read: “Nothing in this section shall: . . . prohibit a city or county from regulating the
manner of openly carrying a loaded firearm on one's person…” This language does not
distinguish between a holder of a concealed carry permit and a non-holder.

Second, regulation of the manner of openly carrying a loaded firearm on the person of a
non-holder of a concealed carry permit. We conclude that a city or county may regulate
because the language of the statute is clear and unambiguous. The pertinent language
would be read: “Nothing in this section shall: . . . prohibit a city or county from
regulating the manner of openly carrying a loaded firearm on one's person…” This
language does not distinguish between a holder of a concealed carry permit and a nonholder.

6 See testimony of Sen. Phillip Journey, Minutes, House Federal and State Affairs Committee, February
20, 2007 ("Cities may also prohibit non-licensees from carrying concealed or loaded unconcealed
firearms on their persons.") and testimony of Ed Klumpp, Kansas Association of Chiefs of Police, Minutes,
House Federal and State Affairs Committee, February 20, 2007 ("Our goal in working with the House
members and others on this bill has been two fold. First, we need to retain the ability for cities to regulate
persons not licensed under the act relating to firearms. . . .Second we wanted to clarify legislative intent to
minimize any misunderstanding about what cities and counties can and can't do relating to concealed
carry and other firearm issues addressed in this bill.")


Representative Lana Gordon
Page 4

Third, regulation of the manner of openly carrying a loaded firearm in the immediate
control of a non-holder of a concealed carry permit holder (whether on public or private
property). We conclude that a city or county may regulate because the most
reasonable manner of reading the statute to give meaning to its final, grammatically
challenged phrase, is as follows: “Nothing in this section shall: . . . prohibit a city or
county from regulating the manner of openly carrying a loaded firearm … in the
immediate control of a person[,] not licensed under the personal and family protection
act while on property open to the public[;]”

Fourth, regulation of the manner of openly carrying a loaded firearm in the immediate
control of a holder of a concealed carry permit when such holder is on public property.
We conclude that a city or county may not regulate. The statute is silent on this factual
circumstance. Therefore, this circumstance does not give rise to an exception to the
general rule of pre-emption of local authority. This interpretation is consistent with the
overall legislative intent of the 2007 amendments to this statute.

While we believe that the above analysis and conclusions are the interpretation of the
statute that most nearly reflect the intent of the legislature, the ambiguity in the
language itself does tend to render difficult the sort of “clear direction and precise
clarification” you requested with respect to K.S.A. 2010 Supp. 12-16,124(b)(2). Should
you wish to proceed with legislative clarification through a further amendment to this
statute, legal staff at my office would be at your service.

Sincerely,


DEREK SCHMIDT
ATTORNEY GENERAL

DS:AEA:ke

[Damiansar-15]

Now we need to challenge the constitutional issue of licensing an individual right by requiring free citizens to pay for a CHL in order to carry concealed in Kansas. With the recent change to the Kansas Constitution acknowledging the 2nd Amendment as an individual right; it appears that licensing this right with high fees becomes unconstitutional, yes? Kansas needs to follow States like Arizona, which believed it is wrong to license free citizens their right to defend themselves with firearms whether they open or conceal carry…

With this opinion ruling, it appears that LEOs will still be able to harass OC citizens without reasonable articulate suspicion or probable cause by just going up and asking for a CHL ID, yes? This is a difficult thing, because LEOs can’t just stop people to ask for a driver’s license when they are driving, but I suspect they will stop OC folks and try to ID them and/or determine if firearm is illegally OC’d… thoughts?

[campfire]

On reflection and continued analysis, I see where there is room to interpret this AG opinion multiple ways. I think it hinges upon whether the AG meant that the exclusion for CCH holders on public property OCing in their immediate control includes when the firearm is on their person or not. Based on how the scenarios were conceived in the text of the opinion, my gut says it doesn't. However, it is not clear to me and it would be much better if it had been explicit.

Any chance for getting another clarification from the AG on the potential contradictions between conclusions #1 and #4 of the text?

[marine0300]

Below is a post by Patricia Stoneking President of the Kansas Rifle Association. Blog from www.ksccw.com

http://www.ksccw.com/showthread.php?t=26348&page=6

I talked at length with Derek Schmidt today. The opinion is in line with exactly what every licensee should be getting taught in their CCH classes according to the curriculum provided by the CCH unit and reflects the specific intent of HB 2528 from 2007. I was intimately involved in seeing to the passage of HB 2528 and so was Derek. Here are the points and they match exactly to the intent of the 2007 legislation.

1. If your gun is accidentally revealed while on your person you cannot be charged with any violation of any kind.

2. If you want to take your gun off of your person and the gun is in the open until you put it in the trunk or whatever, so long as it is within your immediate control while in the open you cannot be charged with any violation of any kind.

3. If you want to take the gun out of the holster and lay it on the car seat in the open, unconcealed, as long as the gun is in your immediate control you cannot be charged with any violation of any kind.

4. If you are say in a park at a picnic and you wish to remove the gun and lay it next to you on your picnic blanket, as long as the gun is in your immediate control you cannot be charged with any violation of any kind.

5. This opinion does NOT say that if you have a concealed carry permit that you may also carry open without regard to local ordinance and regulation.

6. This opinion suggests that if we wish for open carry to be allowed with preemption statewide for all CCH licensees that it should be legislated to remove all ambiguity and that the services of the AG's office will be at our disposal to insure proper language is used.

As for other things that came out of my lengthy personal discussion with Derek.

1. Dependent upon the language of a specific bill, Derek will not oppose the bill and will either remain neutral or act as a proponent of the legislation - such as described in #6 above.

2. Derek has no problem with open carry and would support such legislation and assist with legal counsel in developing the language for the bill.

That pretty well sums it all up. It's been a very long day, actually a very long week already and I am beyond exhausted so I hope I have made sense in a way that you can all understand and that all questions have been laid to rest.

This opinion was needed as a stepping stone. You guys should know by now that we use a lot of advance strategy and engage in negotiations and preparations long before bills are introduced. Long as in years sometimes. We will bring the fight for constitutional carry to the front line when the time is right and all prefatory maneuvering has been completed. The plan is in motion. Do not look for any constitutional carry legislation prior to the 2013 legislative session but don't be surprised any time after 2012.
__________________
Target Master Shooting Academy, LLC
www.targetmasteracademy.com
NRA Certified Training Counselor
KS Certified CCH Instructor
President, KSRA

[saefrog]

I'm still scratching my head on why you can carry on public property but not private if the owner allows it. A situation would be like walking up to a bank with a gun on your hip, then stopping at the door to conceal it before going in. Does anyone find that scenario a little disturbing looking and how someone could misinterpret the actions? Let the robbery in progress calls begin!

Was there a logical reason for making it that way or am I not thinking right? Or were the liberals not thinking right. Baby steps I guess.

[campfire]

I'm still scratching my head on why you can carry on public property but not private if the owner allows it. A situation would be like walking up to a bank with a gun on your hip, then stopping at the door to conceal it before going in. Does anyone find that scenario a little disturbing looking and how someone could misinterpret the actions? Let the robbery in progress calls begin!

Was there a logical reason for making it that way or am I not thinking right? Or were the liberals not thinking right. Baby steps I guess.

I'm not tracking with your question/scenario as compared to the law/AG opinion...can you try us again or point to the piece that ties to your question?