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Thread: 2nd Kansas Attorney General Opinion on City preemption & Open Carry within a year!!

  1. #1
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    2nd Kansas Attorney General Opinion on City preemption & Open Carry within a year!!

    The City of Wichita requested an AG opinion on their city weapons ordinance and received one in December 2011. AG Opinion 2011-024

    Please read:

    http://www.handgunlaw.us/documents/a...ion12_2011.pdf

    March 2011 Open Carry Kansas requested an Attorney General opinion on open carry and received one. AG Opinion 2011-006

    Please compare:

    http://www.handgunlaw.us/documents/a...dOpenCarry.pdf

    This is a very significant development!! Two A.G. Opinions in one year.

    We have two open carry bans in Kansas, Kansas City & Overland Park.

    Kansas last year changed our right to bear arms amendment to our state constitution - 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; and with two A.G. Opinions it’s time to challenge Kansas City and Overland Park.

    I believe the most restrictive cities and counties can be is unloaded open carry.

    I would love to have open carriers nationwide opinion? Please respond
    Last edited by marine0300; 01-21-2012 at 01:13 PM. Reason: add

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    It would appear from the two AG opinions that local power to regulate open carry is very limited - so much so that localities cannot ban open carry ouright.

    Importantly, the latest AG Opinion opines that the entire weight of the preemption statute applies to local "carry" regulations because, per US S. Ct. ruling in Muscarello v. U.S., 524 U.S. 125, 135 (1998), "carrying" firearms is included by the term "transporting."

    The Kansas preemption statute is at http://kansasstatutes.lesterama.org/...12-16x124.html.

    Can one of you Kansas experts draw up a little 2-dimensional diagram to communicate the limits of local power to regulate open carry to open carriers living in or traveling through Kansas?

    It appears the extent of local power may depend on (1) where the open carrier is (local property, public place on foot, and public place in vehicle), and (2) whether the open carrier is a concealed carry licensee.

    And what does the term "loaded" mean under Kansas law?

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    Kansas City is slowly getting on board

    Kansas City, KS is finally teaching it's police officers that unloaded open carry is legal. I know this because I have been used as the example of the kind of "person who would want to do something like that" I will say only that I am a non sworn employee of the government in Kansas City, KS, so a lot of them know me. I have been telling them that it is legal since pre emption came into being, and it is finally starting to come across. With this new AG opinion, and the slowly dawning realization that a state constitutional amendment cannot be contradicted and invalidated by a local ordinance, full fledged open carry is within sight.

    Would anyone like to help me find a local restaurant in KCK that would be friendly to a C lunch or dinner?
    Grimjack

    Quote Originally Posted by marine0300 View Post
    The City of Wichita requested an AG opinion on their city weapons ordinance and received one in December 2011. AG Opinion 2011-024

    Please read:

    http://www.handgunlaw.us/documents/a...ion12_2011.pdf

    March 2011 Open Carry Kansas requested an Attorney General opinion on open carry and received one. AG Opinion 2011-006

    Please compare:

    http://www.handgunlaw.us/documents/a...dOpenCarry.pdf

    This is a very significant development!! Two A.G. Opinions in one year.

    We have two open carry bans in Kansas, Kansas City & Overland Park.

    Kansas last year changed our right to bear arms amendment to our state constitution - 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; and with two A.G. Opinions itís time to challenge Kansas City and Overland Park.

    I believe the most restrictive cities and counties can be is unloaded open carry.

    I would love to have open carriers nationwide opinion? Please respond

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    Quote Originally Posted by grimjack View Post
    Kansas City, KS is finally teaching it's police officers that unloaded open carry is legal.
    But the AG opinion number 2 opines that localities are preempting from demanding that open carriers remain unloaded - only regulations on loaded open carriers such as using a holster or mechanical safety would be acceptable.

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    One little step at a time

    While I wholeheartedly agree with you, it took several years to get them this far, hopefully the next change will come faster. My personal belief is that the state constitutional amendment we passed a while back removes their ability to regulate much of anything, but it takes time.
    Grimjack


    Quote Originally Posted by Mike View Post
    But the AG opinion number 2 opines that localities are preempting from demanding that open carriers remain unloaded - only regulations on loaded open carriers such as using a holster or mechanical safety would be acceptable.

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    Quote Originally Posted by grimjack View Post
    While I wholeheartedly agree with you, it took several years to get them this far, hopefully the next change will come faster. My personal belief is that the state constitutional amendment we passed a while back removes their ability to regulate much of anything, but it takes time.
    Grimjack
    +10000

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    What is loaded?

    I looked and looked, and Kansas apparently does not define what a "loaded" firearm is. In the absence of Kansas having a definition, I went looking for a federal definition, which says nothing either. Apparently it would be up to a jury to decide.
    If there is to be a push for a definition, mine would be simple. A firearm is loaded when, barring mechanical failure or misfire, pulling the trigger causes the weapon to discharge. A double action semi auto with a full mag with an empty chamber wouldn't be loaded under this definition, but a DA revolver carrying with loaded chambers would. Any single action firearm would not be loaded, as long as it was carried hammer down, as pulling the trigger would do nothing.
    Just my thoughts, in no means a legal definition.
    Grimjack

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    Movement

    It is good to see movement on this topic and I appreciate all who are fighting the good fight on this important topic... The last time I was in Wichita over the holidays, I opened carried "unloaded" without and issue. So, it is good that our efforts are creating a global mindset with the community and LEOs.
    Last edited by Damiansar-15; 01-31-2012 at 09:49 AM.

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    Article in the KC Star "913" section today on this topic

    The article can be read at joco913.com

    The Johnson County Sheriff Frank Denning was quoted as saying "for now, the sheriff's department would proceed as if the county ordinance barring residents from openly carrying weapons in county buildings is not in effect". Denning also said that "officials are very concerned" about the recent AG opinion. The article also mentioned that the AG opinion said that cities could require guns to be kept in a holster or unloaded. Denning said that deputies will not stop someone just because that are openly carrying a gun in public buildings. "We will handle them case by case", Denning said.


    So it would seem to me that the JOCO Sherrif's Department is informed and up to date with the opinion of the AG. As a resident of Overland Park, I would hope and like to see that the OPPD and surrounding areas also become informed. My major gripe with OP is that they have do not allow OC. Having moved from KCMO, where I used to OC everyday, I'm anxiously awaiting/hoping that true OC will come to Overland Park, and etc.

    As far as "unloaded OC"......how is that defined? Obviously, you cannot have a round chambered. Does it also mean that you cannot have a magazine in? If not, your magazine is stored on your belt in a mag holder or? Unloaded OC would not be ideal but better than nothing, I suppose.

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    this is great news!

    Here is the link http://joco913.com/news/attorney-gen...into-question/
    Last edited by marine0300; 02-01-2012 at 01:10 PM.

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    Regular Member Damiansar-15's Avatar
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    Simple legislation

    Why can't Kansas submit legislation that will simplify the mess of firearm ordinances across the State? See an example approach that is getting pushed through in Missouri...

    http://www.youtube.com/watch?v=ujTWy3KXqFg

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    Unloaded Carry?

    Does not the firearm have to be in a "loaded" condition in order for the City to regulate? So would not the firearm have to be loaded in order to regulate the manner in which it is carried? Also, what is the legal difference in regulating and banning loaded open carry?

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    Difference between regulate and prohibit

    Quote Originally Posted by Damiansar-15 View Post
    Does not the firearm have to be in a "loaded" condition in order for the City to regulate? So would not the firearm have to be loaded in order to regulate the manner in which it is carried? Also, what is the legal difference in regulating and banning loaded open carry?
    I have made this same argument for years. Regulate and prohibit are not the same.

    K.S.A. 2010 Supp.
    12-16,124(b)(2), which reads as follows:
    (b) Nothing in this section shall:
    Ö
    (2) prohibit a city or county from regulating the manner of openly carrying
    a loaded firearm on oneís 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.

    The legislature used both words in the same sentence, showing that they are not meant to be the same thing. If the legislature had meant regulate to mean prohibit, they could have just said " prohibit a city or county from regulating the manner of or prohibiting openly carrying a loaded firearm on oneís person;..."

    They did not say that, and according to numerous rulings of the State Supreme court (not hard to find, almost every ruling they make about a law mentions it) the plain language of the law is the primary method of discernment as to meaning. As I said before, I have few problems with some regulations, handguns in holsters, not cocked and locked, revolvers have hammer down on an empty chamber, just basic safety things.

    It is apparently going to take a court case to actually get these questions resolved. Who wants to pitch in for bail money for me?
    Grimjack

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    I'm curious what you all think about this: the law says property open to the public but the AG opinions seem to use the term public property interchangeably with the aforementioned phrase. In my common reading of those phrases, they don't mean the same thing.

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    Quote Originally Posted by campfire View Post
    I'm curious what you all think about this: the law says property open to the public but the AG opinions seem to use the term public property interchangeably with the aforementioned phrase. In my common reading of those phrases, they don't mean the same thing.
    "Public Property" is property owned by the people, through a government entity. "Property open to the public" is privately owned but generally open to all comers, usually for a commercial purpose. A city park is public property, a Wal-Mart is property open to the public.

    Grimjack

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    Quote Originally Posted by grimjack View Post
    "Public Property" is property owned by the people, through a government entity. "Property open to the public" is privately owned but generally open to all comers, usually for a commercial purpose. A city park is public property, a Wal-Mart is property open to the public.

    Grimjack
    This is what I thought too, so I am surprised to see the AG opinion seem to use the terms interchangeably, and for some of the statements/implications to be limited to public buildings or public property when the term used in the law covers more ground.

    I would like to see a much simpler statement from the AG of what cities can and can't do in terms of regulating and what people can't and can't do regarding carry and transport. I would like to see emphasis that after we updated our constitution to clarify our gun rights are individual, open carry is allowed state-wide without license (even if concealed is considered a privilege and licensed--yes I know that might change with const. carry). Just to be thorough I would like to see state preemption of all the firearms carry laws to give us consistency and legal protection from town to town--this only makes sense.
    Last edited by campfire; 02-18-2012 at 10:17 PM.

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    Quote Originally Posted by marine0300 View Post
    .....
    I believe the most restrictive cities and counties can be is unloaded open carry.
    I think this was what i thought after the first AG opinion. So I re-read the newest (2nd) AG letter. It seems to read that cities can't ban even loaded open carry. Am I reading this incorrectly?

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    Is anyone planning to send the new AG letter to the KCKS or OPKS attorneys or city council members and tell them to please fix their ordinances to comply? (It might be nice not to have to do the court thing, right grimjack?)

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    Campfire,

    To answer your question yes.

    All I can tell you is we are in contact with both municipalities.

    Things will just unfold.

    Might take a little time.

    Thank you for all your support!

    Marine0300

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    Quote Originally Posted by marine0300 View Post
    Campfire,

    To answer your question yes.

    All I can tell you is we are in contact with both municipalities.

    Things will just unfold.

    Might take a little time.

    Thank you for all your support!

    Marine0300
    Glad to hear that you (and/or KSRA?) are already in touch with them. They are not the only two towns that ban OC in KS, but certainly two of the more important in the KC area. I think some time ago I posted all the cities in Johnson County where I found OC bans or questionable ordinances...might have been on here or ksccw.com. Anyway, good luck with them. If they change their ordinances the others should too, although since the AG opinions aren't binding you never know.

    Will you please keep us posted on what OP and KCK say?
    Last edited by campfire; 02-19-2012 at 10:07 PM.

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    KC KS knows

    Quote Originally Posted by campfire View Post
    Is anyone planning to send the new AG letter to the KCKS or OPKS attorneys or city council members and tell them to please fix their ordinances to comply? (It might be nice not to have to do the court thing, right grimjack?)
    As I have mentioned before, I am a civilian employee working in Wyandotte County, and I can tell you, they know about the AG opinions, and about the change to the state constitution. They don't care. I even wrote an email to the Sheriff, who I know personally, and asked what the Sheriff's Department position was on open carry. Two weeks ago. No response. It is my personal opinion from working there that until they lose a lawsuit, they will not change. They may not even change after they lose a lawsuit. I can't speak for OP, but in KC, the upper management of the city and "law" enforcement don't think that a lot of laws in Kansas apply to them. Maybe if more people wrote to the Sheriff and the Chief of Police asking them about these things, they would notice? I wouldn't hold my breath though.
    Grimjack

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    Regular Member Damiansar-15's Avatar
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    Agree

    Quote Originally Posted by grimjack View Post
    As I have mentioned before, I am a civilian employee working in Wyandotte County, and I can tell you, they know about the AG opinions, and about the change to the state constitution. They don't care. I even wrote an email to the Sheriff, who I know personally, and asked what the Sheriff's Department position was on open carry. Two weeks ago. No response. It is my personal opinion from working there that until they lose a lawsuit, they will not change. They may not even change after they lose a lawsuit. I can't speak for OP, but in KC, the upper management of the city and "law" enforcement don't think that a lot of laws in Kansas apply to them. Maybe if more people wrote to the Sheriff and the Chief of Police asking them about these things, they would notice? I wouldn't hold my breath though.
    Grimjack
    I think the same sentiment is in play with Wichita, as well. A letter from the AG was even sent to head of legal in Wichita and they still charged a person for legally open carrying in Wichita. See thread below that also has the specific letter sent to Wichita legal towards the end of the thread...

    http://forum.opencarry.org/forums/sh...earís-Eve-2011

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    Legal Update

    Finally got in touch with City legal...They "say" they are working with WPD to determine IF changes should be made to city ordinances, since AG opinions are not binding on the city. Apparently WPD will continue to enforce local ordinances until "any" changes are made. It appears that they are not concerned that they are in violation of State law and that current practice of arresting open carriers at gun point for doing something perfectly legal is the current mode of operation for now... I wish my hometown had more stand-up leadership like the other Kansas cities who are trying to do the right thing until ordinances/police proceedure are changed to comply with State/Federal law.

    It will be interesting to see what happens with the recent Wichita open carry case that was supposed to have its first court appearance this month... It appears that City does not mind enforcing illegal/unConstitutional ordinances and putting individual officers in jeopardy by exposing them to FBI investigations for civil rights violations.

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    Quote Originally Posted by Damiansar-15 View Post
    It will be interesting to see what happens with the recent Wichita open carry case that was supposed to have its first court appearance this month... It appears that City does not mind enforcing illegal/unconstitutional ordinances and putting individual officers in jeopardy by exposing them to FBI investigations for civil rights violations.
    Will send you as pm.

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    K.S.A. 2010 Supp.
    12-16,124(b)(2), which reads as follows:
    (b) Nothing in this section shall:

    (2) 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.
    I read that to say that the section does not stop a city or county from having the right of creating it's own ordinances, or define the legality of such ordinances, that take away our civil rights defined in the 2nd amendment.
    Last edited by Echo4PapaBravo; 04-08-2012 at 01:39 PM.

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