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Thread: AG Opinion on OC in Vehicle W/O Permit Has Been Requested

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    Founder's Club Member Brass Magnet's Avatar
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    AG Opinion on OC in Vehicle W/O Permit Has Been Requested

    In another thread I had said I was going to ask my representative to request an AG opinion on OC in a vehicle without a permit under Wisconsin's new carry law. I received notice today that it was requested on June 30th and that it usually takes a while to get an answer.

    I hesitate to post the actual .pdf request but here is the text from the body:

    June 30, 2011

    J.B. Van Hollen
    Attorney General
    114 East, State Capitol
    Madison, WI 53707-7857

    RE: Open Carry of Weapons in a Vehicle

    Dear Attorney General Van Hollen:

    I'm writing to request your opinion on how persons openly carrying a weapon in a vehicle, who do not possess a license to carry a concealed weapon, shall be treated under the law when considering State v. Walls <snip> , and enrolled 2011 Senate Bill 93.

    If a handgun on the seat of a car that is indiscernible from ordinary observation by a person outside and within the immediate vicinity of a vehicle is considered hidden from view, or concealed, under Wis. Stats. 941.23, then how shall a person who openly holsters a weapon on their hip, for example, be treated under the law while seated in a vehicle?

    Thank you in advance for your attention to this request.
    Last edited by Brass Magnet; 08-03-2011 at 03:06 PM.
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    Founder's Club Member protias's Avatar
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    I hope he gives the correct opinion.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by protias View Post
    I hope he gives the correct opinion.
    I would think that he would. I would have liked my rep to include the part that I sent him about what I believe the legislative intent was but maybe he thought that was obvious. It's fresh in everybody's minds right now so I would think it would lead to the most accurate opinion verses getting one years down the line.
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    Regular Member Outdoorsman1's Avatar
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    Good Job....

    Good on you for geting this addressed at the highest level....

    I also hope the A.G. understands the concept and the fact that O.C. loaded and holstered in a vehicle is included as "legal" in the C.C. bill already signed by Gov. Walker.

    I plan on geting the WI permit (for other reasons) but it should also cover me in this issue as well..???? as I plan on continuing to O.C. after Nov. 1 and even after I get my license.. I MIGHT (final decision to be made at a later date) even O.C. loaded and holstered in my vehicles (car and boats). after Nov. 1 (reads to be legal in the new bill), I will just be EXTRA CAREFULL to avoid school zones until I get the WI Permit, or unload and case if I am in a non-familiar location....and see what happens if I get stopped for anything else...

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    Last edited by Outdoorsman1; 08-03-2011 at 04:25 PM.
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    Regular Member davegran's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    In another thread I had said I was going to ask my representative to request an AG opinion on OC in a vehicle without a permit under Wisconsin's new carry law. I received notice today that it was requested on June 30th and that it usually takes a while to get an answer.

    I hesitate to post the actual .pdf request but here is the text from the body:
    Is this going to be a formal or informal opinion, because it makes a difference.
    Dave
    45ACP-For when you care enough to send the very best-
    Fight for "Stand Your Ground " legislation!

    WI DA Gerald R. Fox:
    "These so-called 'public safety' laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over..."

    Remember: Don't make old People mad. We don't like being old in the first place, so it doesn't take much to piss us off.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by davegran View Post
    Is this going to be a formal or informal opinion, because it makes a difference.
    I'm not sure, but I'd guess that it will be "informal" since it is being requested by a legislator and not a DA. I do think however; that it is the AG's prerogative to issue it either way.
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    Regular Member Interceptor_Knight's Avatar
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    I would not hold my breath for an answer... You will likely never receive what you are requesting. It is a safe bet that you will not. If you recall, the AG refused to make a statement regarding Open Carry and disorderly conduct until several DAs formally requested it and even then he still refused to provide a formal (or informal) opinion. He is not legally obligated to give any opinions if requested by from you or I and as a matter of policy does not. The advisory memorandum which we (they) received carries zero weight in court.

    http://www.doj.state.wi.us/ag/opinions/

    Attorney General Opinions
    The attorney general shall . . . [g]ive his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.
    -- Wis. Stat. 165.015

    By statute, the Attorney General must, when asked, provide the legislature and designated Wisconsin state government officials with an opinion on legal questions. The Attorney General may also give formal legal opinions to district attorneys and county corporation counsel under certain circumstances. Wis. Stat. 165.25(3) and 59.42(1)(c).

    Opinions of the Attorney General (OAG) typically provide guidance when confusion exists about the meaning of a statute and Wisconsin appellate courts have not yet definitively answered the question. Wisconsin courts do not have any obligation to follow an interpretation provided by an OAG, but they often do. As the Wisconsin Court of Appeals has written, "Well-reasoned attorney general's opinions have persuasive value when a court later addresses the meaning of the same statute."

    Over the years, the Attorney General has answered a wide range of questions. Sometimes an inquiry concerns the constitutionality of proposed legislation. Other times, the question might concern the scope of a government agency's authority. Whatever the issue, the Attorney General has an obligation to offer the highest-quality analysis without regard to any political or partisan favor or consequences that might follow.
    The Department has also received requests from individuals and legislators for a formal Opinion of the Attorney
    General on the legality of openly carrying firearms in Wisconsin. We declined these requests, principally because
    (a) the individual requestors were not entitled to a formal opinion
    under Wis. Stat. 59.42(1)(c), 165.015(1), or
    165.25(3), and (b) the circumstances involved “an issue that [was] the subject of current or reasonably imminent
    litigation, since an opinion of the attorney general might affect such litigation.” 77 Op. Att’y Gen. Preface (1988),
    at 3.D. While we acknowledge the recent filing of a federal civil lawsuit pertaining to open carry in the Eastern
    District of Wisconsin—Gonzalez v. Village of West Milwaukee, et al., No. 09-CV-384-LA—we note that the State
    of Wisconsin is not a party to this federal action. We further note that, as explained below, this informal Advisory
    Memorandum does not carry the same legal significance as a formal Opinion of the Attorney General on a matter of
    state law.
    2
    This informal Advisory Memorandum does not constitute a formal opinion of the Wisconsin Attorney General or
    the Wisconsin Department of Justice
    under Wis. Stat. 165.015(1). The Department offers this Advisory
    Memorandum for educational and informational purposes only. It does not prevent the Attorney General, the Wisconsin
    Department of Justice, or any Wisconsin district attorney, special prosecutor or municipal prosecutor from bringing any
    particular charge or making any particular argument in the course of litigation. It does not create any rights beyond those
    established under the constitutions, statutes, regulations and administrative rules of the United States of America and the
    State of Wisconsin.
    Last edited by Interceptor_Knight; 08-04-2011 at 01:34 PM.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    I would not hold my breath for an answer... You will likely never receive what you are requesting. It is a safe bet that you will not. If you recall, the AG refused to make a statement regarding Open Carry and disorderly conduct until several DAs formally requested it and even then he still refused to provide a formal (or informal) opinion. He is not legally obligated to give any opinions if requested by from you or I and as a matter of policy does not. The advisory memorandum which we (they) received carries zero weight in court.

    http://www.doj.state.wi.us/ag/opinions/
    I didn't personally request it from the AG and you'd know that if you would have read the OP. I requested that my representative issue a formal request; which he did. The AG is required to respond to the legislature.

    Also, I'm not the only one working on this. Other legislators will most likely be requesting an opinion about the same thing.

    Oh, and your being a negative Nancy...... You should stop, as the CDC has said it may be habit-forming......and my unicorn has requested that you don't rain on our parade...
    Last edited by Brass Magnet; 08-04-2011 at 02:25 PM.
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    Regular Member Outdoorsman1's Avatar
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    Oh, and your a negative Nancy......
    Now thats funny.....

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    Last edited by Outdoorsman1; 08-04-2011 at 02:26 PM.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    I didn't personally request it from the AG and you'd know that if you would have read the OP. I requested that my representative issue a formal request; which he did. The AG is required to respond to the legislature.
    It is irrelevant whether it is from you as an individual or your representative as an individual (which you would have known had you read my post above...) He is not legally required to respond to individuals and likely will not. He was asked for an opinion by individual representatives regarding Open Carry and refused to issue an opinion. Only if the
    house thereof or the senate or assembly committee on organization, or by the head of any department of state government
    request it is he obligated to do so.
    I am not trying to be negative and mean no offense to your Unicorn . I am simply doing a reality check.
    Last edited by Interceptor_Knight; 08-04-2011 at 02:32 PM.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    It is irrelevant whether it is from you as an individual or your representative as an individual (which you would have known had you read my post above...) He is not legally required to respond to individuals and likely will not. He was asked for an opinion by individual representatives regarding Open Carry and refused to issue an opinion. Only if the request it is he obligated to do so.
    I am not trying to be negative and mean no offense to your Unicorn . I am simply doing a reality check.
    No, you're just narrowly interpreting the law and you forgot to quote part of it. I helped you below:

    <snip> by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.
    -- Wis. Stat. 165.015
    I'd say that a request from a legislator is a request by the legislature, otherwise why would the statute need to continue with "[or] either house thereof".

    Can someone find where "legislature" is defined in the statutes.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    I'd say that a request from a legislator is a request by the legislature, otherwise why would the statute need to continue with "[or] either house thereof".
    That is twice now that you posted without reading my post through. An individual legislator IS NOT "The legislature". They are neither "The House" nor "The Senate" nor an "Assembly Committee". I will post it again for your benefit. The AG refused requests by individual legislators because he is not legally required to give them as individuals an opinion....
    The Department has also received requests from individuals and legislators for a formal Opinion of the Attorney
    General on the legality of openly carrying firearms in Wisconsin. We declined these requests, principally because
    (a) the individual requestors were not entitled to a formal opinion
    Last edited by Interceptor_Knight; 08-04-2011 at 03:27 PM.

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    Founder's Club Member Brass Magnet's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    That is twice now that you posted without reading my post through. An individual legislator IS NOT "The legislature". They are neither "The House" nor "The Senate" nor an "Assembly Committee". I will post it again for your benefit. The AG refused requests by individual legislators because he is not legally required to give them as individuals an opinion....
    Whoops. I indeed missed the "and legislators". I only saw "(a) the individual requestors were not entitled to a formal opinion" for some reason. HOWEVER, it does say they were declined a formal opinion and not an informal one.
    Last edited by Brass Magnet; 08-04-2011 at 03:44 PM.
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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Brass Magnet View Post
    Whoops. I indeed missed the "and legislators". I only saw "(a) the individual requestors were not entitled to a formal opinion" for some reason. HOWEVER, it does say they were declined a formal opinion and not an informal one.
    Since no informal opinion was ever published, we know that none was given. If you follow my link you will see that both formal and informal opinions are published. There was absolutely zero response until DAs requested an opinion. Even then he refused to give even an informal opinion. All he was willing to do was to pen a memorandum which has even less authority than an informal opinion.

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    Campaign Veteran GLOCK21GB's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    Since no informal opinion was ever published, we know that none was given. If you follow my link you will see that both formal and informal opinions are published. There was absolutely zero response until DAs requested an opinion. Even then he refused to give even an informal opinion. All he was willing to do was to pen a memorandum which has even less authority than an informal opinion.
    it's amazing these officials think that they are so above "we the people" of Wisconsin that they think we are not ENTITLED to a formal opinion. Who the FK do they think they are ?
    http://youtu.be/xWgVGu3OR4U AACFI, Wisconsin / Minnesota Carry Certified. Action Pistol & Advanced Action pistol concepts + Urban Carbine course. When the entitlement Zombies begin looting, pillaging, raping, burning & killing..remember HEAD SHOTS it's the only way to kill a Zombie. Stockpile food & water now.

    Please support your local,county, state & Federal Law enforcement agencies, right ???

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    Regular Member Interceptor_Knight's Avatar
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    Quote Originally Posted by Glock34 View Post
    it's amazing these officials think that they are so above "we the people" of Wisconsin that they think we are not ENTITLED to a formal opinion. Who the FK do they think they are ?
    For things to be different we need a Statute change....

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    Founder's Club Member Jim675's Avatar
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    They'd have to raise taxes a bit to hire a lot more lawyers if everyone in the state was entitled to have the AG's office answer their every legal question.
    He's the State's lawyer; we need to pay for our own.

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    I'm not being negative, just realistic. I too think it's highly unlikely we'll get an opinion that suddenly makes holster carry in a car OK.

    Our statutory definition of "concealed" hasn't changed in any way meaningful to holstered carry in a car.

    Stick the holster on top of your dash and you might get away with calling that open carry, now that we no longer have the DNR restriction preventing that. However, my reading of the new law does not reveal anything that would negate Fry or Walls, even in light of Article 1 S25 and other recent case law.

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    Campaign Veteran GLOCK21GB's Avatar
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    Quote Originally Posted by Jim675 View Post
    They'd have to raise taxes a bit to hire a lot more lawyers if everyone in the state was entitled to have the AG's office answer their every legal question.
    He's the State's lawyer; we need to pay for our own.
    Thats why we pay taxes, remeber the AG works for US as long as WE pay Taxes. No he is paid by our tax dollars which makes him OUR lawyer. Why would the AG need to hire more Lawyers in order to answer our questions...HE IS THE ATTORNEY GENERAL, HE HAS ALL THE ANSWERS.
    Last edited by GLOCK21GB; 08-05-2011 at 12:40 AM.
    http://youtu.be/xWgVGu3OR4U AACFI, Wisconsin / Minnesota Carry Certified. Action Pistol & Advanced Action pistol concepts + Urban Carbine course. When the entitlement Zombies begin looting, pillaging, raping, burning & killing..remember HEAD SHOTS it's the only way to kill a Zombie. Stockpile food & water now.

    Please support your local,county, state & Federal Law enforcement agencies, right ???

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    Campaign Veteran GLOCK21GB's Avatar
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    Quote Originally Posted by Interceptor_Knight View Post
    For things to be different we need a Statute change....
    LOL, now would be a good time to ram that through..
    http://youtu.be/xWgVGu3OR4U AACFI, Wisconsin / Minnesota Carry Certified. Action Pistol & Advanced Action pistol concepts + Urban Carbine course. When the entitlement Zombies begin looting, pillaging, raping, burning & killing..remember HEAD SHOTS it's the only way to kill a Zombie. Stockpile food & water now.

    Please support your local,county, state & Federal Law enforcement agencies, right ???

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    Regular Member Trip20's Avatar
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    Quote Originally Posted by Glock34 View Post
    Thats why we pay taxes, remeber the AG works for US as long as WE pay Taxes.
    No no no no you have it all wrong. We pay taxes to help the underprivileged raise kids like these, and so these great young people have programs and such to keep them out of trouble. It's obviously working.................. sorry just so pissed about the story that I can't stand it.

    Last edited by Trip20; 08-05-2011 at 10:23 AM.

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    Regular Member Deadscott's Avatar
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    Quote Originally Posted by Trip20 View Post
    No no no no you have it all wrong. We pay taxes to help the underprivileged raise kids like these, and so these great young people have programs and such to keep them out of trouble. It's obviously working.................. sorry just so pissed about the story that I can't stand it.


    This is the most accurate post in this thread.
    Discussing Concealed Carry in Wisconsin at www.armedbadger.com

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    165.015
    165.015 Duties. The attorney general shall:


    165.015(1)
    (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.

    State departments are (17)

    Administration
    Agriculture, Trade and Consumer Protection
    Commerce
    Corrections
    Employee Trust Funds
    Financial Institutions
    Health and Family Services
    Justice
    Military Affairs
    Natural Resources
    Public Instruction
    Regulation and Licensing
    Revenue
    Tourism
    Transportation
    Veterans Affairs
    Workforce Development

    The heads of the departments are appointed positions by the governor.

    I have been down this road a number of times. Under the above statute the Attorney is not allowed to give an official opinion to anyone without specific authority. He must give an oppinion to any of the heads of the above department if asked. He also must give an opinion to the chair of legislative committees. He must give an opinion to the Houses of the legislature if requested by the majority leader of those houses. He also must give an opinion to district attorneys because they are members of the law enforcement community of which he is the top dog.

    By law, not by personnel decision, the attorney general can not give official published opinions to private citizens or individual members of the legislature speaking on the behalf of their constituents.

    I have personal letters from the Attorney General Office supporting what I have posted.

    The law is wrong. With present communication resources it is outdated. I can possibly understand it if the AG position was a governor appointment but it is not. It is an elected position and in my opinion that makes the AG answerable to "The People".

    Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

    My opinion:

  24. #24
    Regular Member BROKENSPROKET's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    165.015
    165.015 Duties. The attorney general shall:


    165.015(1)
    (1) Give opinion to officers. Give his or her opinion in writing, when required, without fee, upon all questions of law submitted to him or her by the legislature, either house thereof or the senate or assembly committee on organization, or by the head of any department of state government.

    State departments are (17)

    Administration
    Agriculture, Trade and Consumer Protection
    Commerce
    Corrections
    Employee Trust Funds
    Financial Institutions
    Health and Family Services
    Justice
    Military Affairs
    Natural Resources
    Public Instruction
    Regulation and Licensing
    Revenue
    Tourism
    Transportation
    Veterans Affairs
    Workforce Development

    The heads of the departments are appointed positions by the governor.

    I have been down this road a number of times. Under the above statute the Attorney is not allowed to give an official opinion to anyone without specific authority. He must give an oppinion to any of the heads of the above department if asked. He also must give an opinion to the chair of legislative committees. He must give an opinion to the Houses of the legislature if requested by the majority leader of those houses. He also must give an opinion to district attorneys because they are members of the law enforcement community of which he is the top dog.

    By law, not by personnel decision, the attorney general can not give official published opinions to private citizens or individual members of the legislature speaking on the behalf of their constituents.

    I have personal letters from the Attorney General Office supporting what I have posted.

    The law is wrong. With present communication resources it is outdated. I can possibly understand it if the AG position was a governor appointment but it is not. It is an elected position and in my opinion that makes the AG answerable to "The People".

    Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

    My opinion:
    I will call Gerald Fox's office, Jackson County DA, and ask him to request an opinion.

  25. #25
    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by Captain Nemo View Post
    Bottom line: Forget trying to get your senator or representative to obtain an AG opinion. By law the AG can't give him/her one. The only way to make it happen is to find a gun friendly District Attorney. Perhaps a county sheriff may get a AG opinion. Or a gun friendly county sheriff may be able to put pressure on a DA to get one. That's a big perhaps though.

    My opinion:
    Thanks Captain. Do we know a chairperson of a committee? Hmmm... My Senator, Kedzie, is the chairperson of the Committee on Natural Resources and Environment (Chair)

    He has been supportive of the ORIGINAL SB93.

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