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Thread: Kansas AG Says Localities Cannot Ban Unloaded Open Carry

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    Kansas AG Says Localities Cannot Ban Unloaded Open Carry

    http://www.ammoland.com/2011/03/24/k...ded-open-carry

    Kansas AG Says Localities Cannot Ban Unloaded Open Carry
    Thursday, March 24th, 2011 at 9:04 AM

    Attorney General Says Localities Cannot Ban Unloaded Open Carry in Town, or at City Hall

    But Law Remains Clear as Mud When it Comes to Concealed Handgun Permit Holders.

    AG Standing Ready to Help Legislature Clarify Permit Holders’ Rights.

    OpenCarry.org
    Sacramento, California --(Ammoland.com)- Like most states, Kansas state law allows law-abiding adults to openly carry properly holstered handguns without any permit.

    And now Kansas Attorney General Derek Schmidt has issued an opinion clarifying that localities cannot ban “unloaded” open carry.

    Op. Atty. Gen. No. 2011-006 (Kan., March 11, 2011)(1) provides in relevant part that Kansas law allows “cities and counties to regulate only the open carry of loaded firearms, not unloaded firearms.”(2) (underlined emphasis in original).

    See http://www.ksag.washburnlaw.edu/opin...1/2011-006.pdf.

    43 states allow open carry in public, and the only state besides Kansas which does not yet generally preempt localities from banning open carry is neighboring Missouri.

    Though most Kansas localities do not regulate open carry at all, a few have enacted bans on open carry that would reach even “unloaded” open carry. General Schmidt’s confirmation that localities cannot regulate unloaded open lends urgency to the need for these localities to identify and repeal such unlawful ordinances.

    “What needs to happen now,” says John Pierce, co-founder of OpenCarry.org, “is for localities to review their ordinances, regulations, and policies for compliance with Kansas law and ensure that any local open carry restrictions apply only to “loaded” open carry.”

    But Pierce goes further and urges Kansas localities to “just repeal all open carry bans on the books because the police cannot constitutionally seize open carriers and inspect firearms unless they first have ‘reasonable suspicion’ that the gun is loaded or some other crime being committed.” Detaining open carriers to check them out “is a good way for cities and counties to get sued and taxpayers to pay judgments,” adds Pierce.(3)

    Unfortunately General Schmidt’s opinion raises more questions than it answers as to whether localities may ban concealed handgun permit holders from carrying loaded guns openly. Opines Schmidt without any explanation:

    “A city or county may regulate the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. . . . [But 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.” (bolded emphasis added).

    Without the aid of any court opinion yet construing these two apparently conflicting rules of law, it’s not completely clear what they mean. However, the term “on the person” would appear to either be a subset of, or synonymous with, the term “in the immediate control.” Either way, construed in this manner, the second rule of law provides a safe harbor from the regulation allowed by the first rule whenever the permit “holder is on public property” (presumably meaning property open to the public).

    See http://www.forum.opencarry.org/forum...7-Loveland-CO- pays-15-000-to-settle-open-carry-lawsuit.

    To be honest, we at OpenCarry.org believe that the best construction of the statute is, especially under the rule of lenity,4 that the exception for permit holders on public property means what it says and largely swallows the general rule that localities may regulate loaded open carry by permit holders. We wish General Schmidt had opined as much, in which case OpenCarry.org could have adjusted our maps to categorize Kansas as a “Licensed Open Carry State.”5

    But to be fair to General Schmidt, he explicitly states in his opinion to the requesting official, Representative Lana Gorden (R – Topka), that “the ambiguity in the [statutory] language itself does tend to render difficult the sort of ‘clear direction and precise clarification’ you requested.” Schmidt added, hint, hint, that “[s]hould you wish to proceed with legislative clarification through a further amendment to this statute, legal staff at my office would be at your service.” Hmmmmm.

    So, the ball is now in the legislature’s court. Most states allow open carry without any license, and OpenCarry.org’s Kansas members now look to the Kansas Legislature to fully preempt localities on open carry. “89% of Kansas voters approved a state constitutional right to bear arms,6 notes Pierce,

    1. See http://www.duhaime.org/LegalDictiona...eofLenity.aspx.
    2. So for now, out of an abundance of caution, OpenCarry.org will continue to list Kansas as merely an “Open Carry Friendly State” at www.opencarry.org/opencarry.html (hold cursor over legend for definitions).
    3. See http://www.jurist.org/paperchase/201...prove-measure- clarifying-right-to-bear-arms.php.
    Carry on!
    About:
    OpenCarry.org was founded in 2004 by Virginia gun-rights activists John Pierce and Mike Stollenwerk and has served to ignite the “Open Carry Movement” that is sweeping the country. In addition to being an invaluable legal resource for gun owners, the site has quickly grown to be a social networking portal for thousands of American gun owners. Visit: www.OpenCarry.org

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    Quote Originally Posted by Mike View Post
    Unfortunately General Schmidt’s opinion raises more questions than it answers as to whether localities may ban concealed handgun permit holders from carrying loaded guns openly. Opines Schmidt without any explanation:

    “A city or county may regulate the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. . . . [But 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.” (bolded emphasis added).

    Without the aid of any court opinion yet construing these two apparently conflicting rules of law, it’s not completely clear what they mean. However, the term “on the person” would appear to either be a subset of, or synonymous with, the term “in the immediate control.” Either way, construed in this manner, the second rule of law provides a safe harbor from the regulation allowed by the first rule whenever the permit “holder is on public property” (presumably meaning property open to the public).
    We received clarification from the AG via Patricia Stoneking on what was meant about the distinction between "on the person" and "in the immediate control" and which localities can regulate (with examples). Please see the following:
    Post #4 by marine0300: http://forum.opencarry.org/forums/sh...ban-open-carry!

    and marine0300's referenced link back to the KSRA forum:
    http://www.ksccw.com/showthread.php?t=26348&page=6

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    Great Article

    Campfire-

    Thank you for posting...Hopefully, this will spark more adjustment to CHL law to allow more freedom on how one wishes to carry their firearm and reduces the transition issues people run into when conceal carrying... Texas just introduced legislation in March, which will not only fix this transition, unconcealed issue that was raised for the KS AG to address, but will also allow open carry for Texans.

    The next step for all licensed carry States is to get rid of the licensing law, tax, etc..., since it seems obviously unconstitutional to license a right...

    Damian

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    Quote Originally Posted by Damiansar-15 View Post
    Campfire-

    Thank you for posting...Hopefully, this will spark more adjustment to CHL law to allow more freedom on how one wishes to carry their firearm and reduces the transition issues people run into when conceal carrying... Texas just introduced legislation in March, which will not only fix this transition, unconcealed issue that was raised for the KS AG to address, but will also allow open carry for Texans.

    The next step for all licensed carry States is to get rid of the licensing law, tax, etc..., since it seems obviously unconstitutional to license a right...

    Damian
    In KS local open carry ordinances are preempted for CCH holders when inside vehicles, so maybe the transition thing isn't as big of an issue here?

    Now that KS voters updated their bill of rights last November to clearly specify (for the state courts which had ruled otherwise) that KS RKBA applies to individuals, I agree that local bans on OC seem unconstitutional, although how many want to volunteer to obtain "standing" and be a test case? I think constitutional carry is on the soon wish list for KS, though, which might make it all a moot point in the next couple of years.

    Good luck with the progress in TX. It's always surprising to me given Texas' reputation that gun laws there are more restrictive than one might think.

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    Sorry to revive this thread but I am curious and confused on this matter. So us CCW holders can open carry every where in the state of Kansas and don't have to conceal since were card holders? I just want to make sure cause honestly I don't want to get into a situation.

    On other matters I agree that having us to pay for a CCW license to carry a firearm legally is total junk. Get rid of the tax and license requirements. I was told when I took my class that the CCW permit money goes I think 80% to Crime labs and then 20% to Sheriff funds for their equipment and such.

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    Quote Originally Posted by DWCook View Post
    Sorry to revive this thread but I am curious and confused on this matter. So us CCW holders can open carry every where in the state of Kansas and don't have to conceal since were card holders? I just want to make sure cause honestly I don't want to get into a situation.

    On other matters I agree that having us to pay for a CCW license to carry a firearm legally is total junk. Get rid of the tax and license requirements. I was told when I took my class that the CCW permit money goes I think 80% to Crime labs and then 20% to Sheriff funds for their equipment and such.
    On public property, it would seem this is true. Although, I am confused by #5 in Marine0300's post about his conversation. It seems contradictory to me with regards to public property.

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    What are the thoughts of the assembled in regards to contacting AG Schmidt& asking by what constitutional authority Wichita& other municipalities is restricting the open carry of loaded arms.

    This could be analogous to allowing you to meet in church, but not allowing any prayer, or saying you may put locks on your doors, but must give a copy of the key to the city police.
    I can see& readily admit that a city has the authority to regulate the discharge of firearms in city limits, but the mere carry? especially with the newly re-worded article 4 of the KS constitution.
    Quote Originally Posted by Kansas bill of rights
    4. Individual right to bear arms; armies. A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

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    Wichita

    Quote Originally Posted by sha-ul View Post
    What are the thoughts of the assembled in regards to contacting AG Schmidt& asking by what constitutional authority Wichita& other municipalities is restricting the open carry of loaded arms.

    This could be analogous to allowing you to meet in church, but not allowing any prayer, or saying you may put locks on your doors, but must give a copy of the key to the city police.
    I can see& readily admit that a city has the authority to regulate the discharge of firearms in city limits, but the mere carry? especially with the newly re-worded article 4 of the KS constitution.
    Wichita Code allows open carry of loaded firearms for CCW holders,
    Reference: Wichita City Code Chapter 5.88 Weapons, SubSection 6 which states:
    Subsections 1(d) "concealed carry", 1(e) "open carry", 1 (f) "loaded vehicle carry", and 1 (g) "non-cased unloaded vehicle carry"
    shall not apply to any person authorized to carry
    a concealed firearm pursuant to the Personal
    and Family Protection Act, K.S.A. 75-7c01
    through K.S.A. 75-7c18, and amendments
    thereto

    I agree that Wichita should not restrict the loaded open carry of non CCW personnel.

    Potter
    *Assist, Protect, Defend*

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    I cannot say for sure if it will be followed up on, but Last week, I had a chance to call up the Second amendment foundation, saf.org and was visiting with them about things& touched upon KS newly reworded article 4, now being an individual right, and asked if they might be willing to send a letter to either the KSAG, or Wichita& ask by what constitutional authority they are restricting a fundamental civil right.

    SAF may, or may not have current plans to sue, but if the civil rights org that just won in front of the SCUS with Heller,& McDonald, sends you a letter, do you really want to tangle with them on a 2A case?

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    Definition of loaded

    Sorry to bump this thread, but I'm new to the site and wanted some clarification if possible. My concern is that there is no KS definition of a loaded weapon. Does that mean that only the chamber need be empty or does it mean that the weapon must not bear any rounds while carried? I have always gone with the idea that a weapon is only loaded when a round is chambered. I would even go so far as to require that the safety, if any, must be off and the weapon capable of being fired. I've always hated the old 1911 reference of "locked and loaded", in favor of "cocked and locked", as I consider removing the safety as part of the loading operation. At least now that most handguns are "drop safe".
    Last edited by Echo4PapaBravo; 04-05-2012 at 02:02 PM.

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    Regular Member Damiansar-15's Avatar
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    Agree

    Quote Originally Posted by Echo4PapaBravo View Post
    Sorry to bump this thread, but I'm new to the site and wanted some clarification if possible. My concern is that there is no KS definition of a loaded weapon. Does that mean that only the chamber need be empty or does it mean that the weapon must not bear any rounds while carried? I have always gone with the idea that a weapon is only loaded when a round is chambered. I would even go so far as to require that the safety, if any, must be off and the weapon capable of being fired. I've always hated the old 1911 reference of "locked and loaded", in favor of "cocked and locked", as I consider removing the safety as part of the loading operation. At least now that most handguns are "drop safe".
    This question was asked of Mary McDonald (Prosecutor Tool) and Wichita's Chief Deputy Attorney, Sharon Dickgrafe, and they did not give an answer to this along with many other questions. This argument has come up a few times when ripping Wichita's UnConstitutional ordinance. LEOs are going to stuff/cuff and the DA will push a charge, since they are anti-freedom, liberal fascists. Recently, a CHL holder was charged w/ loaded open carry when he was perceived walking into his home openly carrying a firearm by a patrol car. Moments later, he was called out of his home at gun-point and arrested for loaded open carry. LEOs had no clue that the firearm was loaded until after they pulled him from his home and violated his 4th Amendment rights. Current City/State/Federal law does not forbid loaded/unloaded carry on one's property and in one's home. LEOs would have no way of knowing if he walked into the home and chambered a round before walking back outside, even if he was walking the neighborhood with a loaded, holstered firearm before entering his home. Last I heard was that the initial trail in March was delayed, because either the prosecuting team didn't have their S&^t together or were drawing this out on purpose for political reasons and leverage. I hope the guy sues the crap out of the City for this BS and the local news highlights the incompetence of Wichita's officials.

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    Well this will get thrown out, or be precedent when he is found not guilty, because if he is a legal CHL holder then the AG said he is allowed to carry a loaded weapon concealed and open carried, even in his vehicle. But hey, we all love precedents so that it is easier the next time any of us have to go through this. I'm going to carry with an empty chamber while I wait for my CHL to be processed. As far as I know, since no one has defined "loaded" then by having the chamber clear I am golden. Until they define it, IMO it is legal either way you go because laws don't grant rights they limit them, and by not defining it they have not limited it. I'm not a lawyer so I can't be sure of it, but that would be my argument in any reasonable man's court.

    Oh, and there is no way the media will highlight any "win" for us, they are even more liberal and socialist/fascist that LEOs and DAs.
    Last edited by Echo4PapaBravo; 04-08-2012 at 02:21 PM.

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    Quote Originally Posted by Damiansar-15 View Post
    This question was asked of Mary McDonald (Prosecutor Tool) and Wichita's Chief Deputy Attorney, Sharon Dickgrafe, and they did not give an answer to this along with many other questions. This argument has come up a few times when ripping Wichita's UnConstitutional ordinance. LEOs are going to stuff/cuff and the DA will push a charge, since they are anti-freedom, liberal fascists. Recently, a CHL holder was charged w/ loaded open carry when he was perceived walking into his home openly carrying a firearm by a patrol car. Moments later, he was called out of his home at gun-point and arrested for loaded open carry. LEOs had no clue that the firearm was loaded until after they pulled him from his home and violated his 4th Amendment rights. Current City/State/Federal law does not forbid loaded/unloaded carry on one's property and in one's home. LEOs would have no way of knowing if he walked into the home and chambered a round before walking back outside, even if he was walking the neighborhood with a loaded, holstered firearm before entering his home. Last I heard was that the initial trail in March was delayed, because either the prosecuting team didn't have their S&^t together or were drawing this out on purpose for political reasons and leverage. I hope the guy sues the crap out of the City for this BS and the local news highlights the incompetence of Wichita's officials.
    Don's case has been continued yet again, for the 3rd or 4th time with no reason given, (I called& checked up on them on Fri eve).
    Furthermore, I did find out that the WPD seized,& possibly suspended his CCW permit&stands to forfeit his carry gun, in addition to any other punitive measures from the ordinance.

    To my knowledge, there has not been a legal defense fund set up yet, but I hope that their attorney would greenlight such an endeavor.

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    Quote Originally Posted by sha-ul View Post
    Don's case has been continued yet again, for the 3rd or 4th time with no reason given, (I called& checked up on them on Fri eve).
    Furthermore, I did find out that the WPD seized,& possibly suspended his CCW permit&stands to forfeit his carry gun, in addition to any other punitive measures from the ordinance.

    To my knowledge, there has not been a legal defense fund set up yet, but I hope that their attorney would greenlight such an endeavor.
    My first post as I have been looking things over..... any update on this case?

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    Quote Originally Posted by kc215 View Post
    My first post as I have been looking things over..... any update on this case?

    Sorry, the DA dropped the charges, I suspect he saw he had a losing hand, and his bluff was called.

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    Unloaded Open Carry ?!?

    Unloaded Open Carry ?

    Wouldn't that be like owning a Rottweiler without any TEETH ?!?!?

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    No, that would be like owning a rottweiler with dentures.

    Sent from my SGH-T989 using Tapatalk 2

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    Quote Originally Posted by kcgunfan View Post
    No, that would be like owning a rottweiler with dentures.

    Sent from my SGH-T989 using Tapatalk 2
    +1

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