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Thread: Uhhh... Guys? Potential legal threat here...

  1. #1
    Regular Member ColeMD17's Avatar
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    Uhhh... Guys? Potential legal threat here...

    I Was just looking at Idaho code trying to find the actual code that supports permitless open carry of handguns in Idaho... And I can't find it! All I found was something in 18-3302 that says "a person shall not carry a concealed weapon without a license to carry concealed weapons" and that "'concealed weapon' means 'ANY... Pistol'"

    I'm sure it's in there somewhere, but where is the actual code that permits open handgun carry?
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    Code does not "allow" behavior, so unless such behavior has been denied by statute, there will not be a code to "allow" an exception.

    For instance, there might hypothetically be a state law that would "deny open carry of firearms, absent local ordinances that may allow such."

    So, if a state had a blanket 'ban' on OC, local municipalities might be left free to create code that says "for Hazzard County, open carry of firearms is an allowed exception to the state ban."

    If there is no law against an activity, it is 'de facto' allowed.
    Last edited by wrightme; 06-24-2011 at 10:08 AM.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Further, if you click the map, select open carry and your state, and the applicable 'code' is:

    Article I Section 11

    The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.
    Notice that the ID constitution does not prevent OC, but it also states that it does not prevent regulation of concealment. Tellingly, it also does not state that it prevents regulation of open carry.

    http://www.opencarry.org/opencarry.html
    Last edited by wrightme; 06-24-2011 at 10:11 AM.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Regular Member Waterborne's Avatar
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    That is because laws are meant to restrict not allow. It is the same situation here in MI. The fact that there is no statute that declares open carry illegal makes it legal. Much in the same way that there is no statute prohibiting me from wearing a grey shirt right now.

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    Regular Member ColeMD17's Avatar
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    Right. But what I just found about "concealed weapon" including "any pistol" seems to prohibit it.

    We all know that "concealed" means "obscured from plain view." but in the letter of the law/ "legalese," under this section, one could actually argued that pistols always fall under the definition of "concealed weapons," whether or not they are actually concealed!
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    Regular Member bowb's Avatar
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    I think you might be looking at it the wrong way. The laws tell you what you are limited in doing. If its not in the laws you can do it. Also to clarify look at Brinkley vs Idaho. That's off the top of my head and if wrong I'll fix it. That case is dated around 1901, supports open carry. Also the Idaho constitution Article I Section 11 states "No law shall impose licensure registration or special taxation on the ownership or possession of firearms or ammunition."

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    Regular Member ColeMD17's Avatar
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    Yes, yes, I know, laws don't "permit" behavior per se...

    Here's what I'm saying.

    Idaho constitution says regulation of concealed weapons is allowed.
    State statute says license is required to CCW.
    Idaho code 18-3302 seems to include ANY pistol under the definition of "concealed weapon."

    Ergo, one might argue that we need a license to CCW to carry "any... pistol"

    *I* certainly wouldn't want to argue that, it just seems like a sort of loophole that leaves us legally vulnerable
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    Regular Member ColeMD17's Avatar
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    Well, the attorney general seems to decipher the law to support permitless open carry. Says so on his website. Good enough for me!

    Once again, in Idaho, common sense prevails! "concealed weapon" means "any weapon that is CONCEALED!"
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    Campaign Veteran gogodawgs's Avatar
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    Try to find this law...

    If you don't understand that laws only disallow behavior, think of it this way.

    Try and look up code that support the wearing of tennis shoes in public. If there is no law that allows it, then surely it must be illegal correct?
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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by ColeMD17 View Post
    Right. But what I just found about "concealed weapon" including "any pistol" seems to prohibit it.

    We all know that "concealed" means "obscured from plain view." but in the letter of the law/ "legalese," under this section, one could actually argued that pistols always fall under the definition of "concealed weapons," whether or not they are actually concealed!
    I think you may be getting a bit too hung up on the word "any" and supposing that it means "any and all".
    I looked up Idaho 18-3302 and found the paragraph containing the phrase you mentioned:
    (7) Except in the person's place of abode or fixed place of business, or on property in which the person has any ownership or leasehold interest, a person shall not carry a concealed weapon without a license to carry a concealed weapon. For the purposes of this section, a concealed weapon means any dirk, dirk knife, bowie knife, dagger, pistol, revolver or any other deadly or dangerous weapon. The provisions of this section shall not apply to any lawfully possessed shotgun or rifle.

    What the law is saying is that it applies to revolvers, semi-automatics, single shot, lever action, chain driven, and even squirrel powered pistols. I imagine it might even apply to flintlock, matchlock, caplock, or doglock, unless otherwise excepted as being 'not a firearm' under another section of the state code.

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    Deep breaths.....

    You're over-reacting to a mis-interpretation of reading the law.

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    Quote Originally Posted by Fallschirmjäger View Post
    I think you may be getting a bit too hung up on the word "any" and supposing that it means "any and all".
    I looked up Idaho 18-3302 and found the paragraph containing the phrase you mentioned:
    (7) Except in the person's place of abode or fixed place of business, or on property in which the person has any ownership or leasehold interest, a person shall not carry a concealed weapon without a license to carry a concealed weapon. For the purposes of this section, a concealed weapon means any dirk, dirk knife, bowie knife, dagger, pistol, revolver or any other deadly or dangerous weapon. The provisions of this section shall not apply to any lawfully possessed shotgun or rifle.

    What the law is saying is that it applies to revolvers, semi-automatics, single shot, lever action, chain driven, and even squirrel powered pistols. I imagine it might even apply to flintlock, matchlock, caplock, or doglock, unless otherwise excepted as being 'not a firearm' under another section of the state code.
    Yep. It looks like any confusion would be removed if it were clearly stated a bit differently "For the purposes of this section a 'weapon' means any [list of stuff]" instead of "For the purposes of this section a 'concealed weapon' means any [list of stuff]."
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    First, the state constitution ensures that our right to open carry cannot be denied.

    This was tested in a court case in the early 1900's.

    In re Brickey, 8 Idaho 597 (1902), which says in relevant part:

    While it is, undoubtedly, within the power of the legislature to prohibit the carrying of concealed deadly weapons, and such regulation is a proper exercise of police power, yet the legislature does not possess the power to prohibit the carrying of firearms, as the right to do so is guaranteed to the citizen both by our federal and state constitutions.

    The syllabus above (written by the Court), is express in the actual holding, below:

    A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.

    http://www.guncite.com/court/state/70p609.html

    There, now you can stop hyperventilating.

    This case is the precedence all other cases are based on.

    That's ACTUAL constitutional carry. Not permit-less carry like the other states have gone.
    Last edited by Zhukov; 06-24-2011 at 02:17 PM.

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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by Fallschirmjäger
    I looked up Idaho 18-3302 and found the paragraph containing the phrase you mentioned:
    (7) Except in [house, business, land], a person shall not carry a concealed weapon without a license to carry a concealed weapon.
    For the purposes of this section, a concealed weapon means any dirk, dirk knife, bowie knife, dagger, pistol, revolver or any other deadly or dangerous weapon. ***
    *** This is where they need to add the phrase "which is hidden from ordinary view".
    That would make the prohibition completely clear, & allow nobody to misinterpret it as prohibiting OC.
    And I'm sure there would be some prosecutor somewhere who just might have tried, without the opinion from the AG.

    This is an interesting other provision, though:
    (9) While in any motor vehicle, inside the limits or confines of any city, a person shall not carry a concealed weapon on or about his person without a license to carry a concealed weapon. This shall not apply to any firearm located in plain view whether it is loaded or unloaded.
    So you can cc in a car as long as you're not in a city. (Town, village, etc. are OK though.)
    And you can cc in a car in a city w/ a permit.
    And you can oc in a car anywhere without a permit.
    Guess it depends on what the officer who sees you considers "plain view". If they use the same standards for guns as they do for drugs, we'd be fine!
    Last edited by MKEgal; 06-24-2011 at 03:12 PM.

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    While it isn't Vermont or Alaska, Idaho is pretty darn good.

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    Regular Member ColeMD17's Avatar
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    Thumbs up

    Okay, so we're covered. Got it, guys, thanks!
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    Regular Member ColeMD17's Avatar
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    Quote Originally Posted by MKEgal View Post
    *** This is where they need to add the phrase "which is hidden from ordinary view".
    That would make the prohibition completely clear, & allow nobody to misinterpret it as prohibiting OC.
    And I'm sure there would be some prosecutor somewhere who just might have tried, without the opinion from the AG.
    Thank you! That is EXACTLY what I was trying to point out lol and I thought the same thing about them adding the part " that is hidden from ordinary view" but I doubt they'd push a bill that made such a small change
    "Molon Labe."

    "People sleep peacably in their beds at night only because rough men stand ready to do violence on their behalf."

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    It was mentioned but go read State v. Brickley. We have case law on our side.

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    Regular Member hermannr's Avatar
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    Remember, concealed means out of sight of normal observation.

    Concealed carry IN a car does not mean "concealed BY the car" it means concealed, where as, if an LEO were to stop you, he could not see it IN the car.

    ID has better permitless OC than WA. WA, in a car, no CLP, no ammo in gun (with some very specific exceptions). As I read it, there is no such restriction in ID.

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    We don't have "permitless" open carry in that way. We have CONSTITUTIONAL open carry.

    They can't limit it because the constitution says so.

    And anyone saying it can't be seen even though it's carried openly, in a holster with no clothes covering and over the seatbelt will result in an arrest is most likely just playing it extra safe.

    They aren't citing or following any case law *in* Idaho.

    And just so you know, concealed DOES NOT always mean "out of sight of normal observation." - Again, unless there is case law from Idaho saying that, it isn't the case.

    By that logic, standing around a corner means it's "out of sight of normal observation" to those on the other side of the corner. Standing next to a pole with the gun behind the pole, is "out of sight of normal observation."

    Walking with your arm swinging in front of the gun can cause it to "out of sight of normal observation."

    That is particularly due to the fact that we have Constitutional Open Carry.

    Unless you're actively covering the firearm with clothing or a seatbelt, I doubt you'd ever have an issue.
    Last edited by Zhukov; 06-26-2011 at 10:56 PM.

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    Regular Member oldbanger's Avatar
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    Quote Originally Posted by MKEgal View Post
    And you can oc in a car anywhere without a permit
    Schools ~ Idaho State says yes...(e) A person who lawfully possesses a firearm or other deadly or dangerous weapon in a private vehicle while delivering minor children, students or school employees to and from school or a school activity;

    http://legislature.idaho.gov/idstat/...CT18-3302D.htm

    But ~ The Gun Free School Zones Act of 1995 States:
    (A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone...
    (B) Subparagraph (A) does not apply to the possession of a firearm...
    (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located...


    http://en.wikipedia.org/wiki/Gun-Fre...es_Act_of_1990

    Not on USPS property (car park)
    1.4.6. Weapons and Explosives
    No person while on Postal property, or while performing services under a Postal contract, shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed.

    http://www.usps.com/suppliers/_txt/SOW.txt

    Not on a Military Facility in Idaho.
    Last edited by oldbanger; 06-27-2011 at 12:30 AM.

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    Also prohibited on the VA facility and [probably] the parking lot of the federal building next to the VA.

    Zhukov, you're good at researching, has anyone ever been in Idaho court over OC'ing while "under the influence" or imbibing?

    Is it tested that you can, in fact, be drunk with a gun on your hip and only face a challenge on standard D&D?

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    Just to put it into perspective:

    Federal law = the only thing that places restrictions on Open Carry.

    Having a Concealed Carry License should prevent GFZ issues and how Idaho law is regarding police enforcing federal law, you have a low likelihood of having a problem.

    Now, with the recent SCOTUS rulings regarding standing and the ability to challenge a law personally, people can most likely start filing Gun Free Zone Challenges under the 2nd and 10th amendments that the feds were overreaching on some of those laws.

    No longer can just the state do so. Usually we'd be told we don't have standing because it was meant as a state's interest.

    I believe the Second Amendment Foundation will probably do so as soon as their plans go into action. They're busy right now with hammering the crap out of NYC and other places over their arcane gun laws.

    Anyways, I'll see if I can pull anything up on the Open Carry/Intoxication thing. I know recently a Deputy got popped for Concealed Carry in a bar and got himself quite drunk. When he was riding a mechanical bull, his gun was exposed and he was asked to leave.

    When he got a lot of "I'm a cop!" attitude and refused to leave, they called the police.

    He was arrested.

    Not sure how it's gone since, but if I get the name, you can search https://www.idcourts.us/ for semi-updates on case status.

  24. #24
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    This is in response to earlier:
    The general test of concealment is whether a weapon is so carried that it is not discernible by ordinary observation.  State v. McNary, 100 Idaho 244, 247, 596 P.2d 417, 420 (1979).   In State v. Button, 136 Idaho 526, 37 P.3d 23 (Ct.App.2001), a driver was stopped for fictitious display of license plates.   The officer approached the driver's side of the vehicle, scanned the interior, and observed no weapons present.   However, when asked about weapons, the driver informed the officer of a handgun located between the front seats and under a purse.   The officer moved to the passenger's side and, looking through the window, spotted approximately two inches of the butt of a handgun between the seats.   The driver was arrested for possession of a concealed weapon.   A further search revealed possession of drugs.   The driver moved to suppress the evidence found as a result of the arrest, arguing that because the handgun was visible to the officer, it was not concealed.   The Court concluded that, because the weapon remained concealed until the officer moved to a particular vantage point, the weapon was not discernible by ordinary observation.   The Court held that the district court did not err when it denied the driver's motion to suppress.

    That was from a case in '03 - Now, remember, though these guns and everything were NOT on the person. Every case saying ordinary observation is when they were between seats, or on the floor, etc.

    I don't believe there has ever been a case when it was holstered in a gun and they got popped for it.

    And to Ed: I'm not seeing any arrests for 18-3302(B) for anyone that didn't have a concealed weapon on them.
    Last edited by Zhukov; 06-27-2011 at 02:15 PM.

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