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

marine0300

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Nov 14, 2008
Messages
367
Location
Topeka, Kansas, USA
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/agopinions/KSAGOpinionPreemption12_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/agopinions/KSAGOpinionCitiesandOpenCarry.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
 
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Mike

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May 13, 2006
Messages
8,706
Location
Fairfax County, Virginia, USA
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/Chapter_12/Article_16/12-16x124.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?
 

grimjack

Regular Member
Joined
Oct 13, 2009
Messages
25
Location
Kansas City, KS
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

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/agopinions/KSAGOpinionPreemption12_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/agopinions/KSAGOpinionCitiesandOpenCarry.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
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,706
Location
Fairfax County, Virginia, USA
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.
 

grimjack

Regular Member
Joined
Oct 13, 2009
Messages
25
Location
Kansas City, KS
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


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.
 

sha-ul

Regular Member
Joined
Jun 3, 2009
Messages
96
Location
Kansas
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
 

grimjack

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Joined
Oct 13, 2009
Messages
25
Location
Kansas City, KS
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
 

Damiansar-15

Regular Member
Joined
Nov 25, 2009
Messages
199
Location
Mercer Island, WA
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.
 
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opencarryeveryday

Regular Member
Joined
Mar 1, 2010
Messages
13
Location
op,ks
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.
 

Damiansar-15

Regular Member
Joined
Nov 25, 2009
Messages
199
Location
Mercer Island, WA
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?
 

grimjack

Regular Member
Joined
Oct 13, 2009
Messages
25
Location
Kansas City, KS
Difference between regulate and prohibit

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:

(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.

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 one’s 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
 

campfire

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Apr 8, 2010
Messages
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Location
KC Metro, Kansas, USA
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. :confused:
 

grimjack

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Messages
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Location
Kansas City, KS
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. :confused:

"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
 

campfire

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Location
KC Metro, Kansas, USA
"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.
 
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campfire

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Apr 8, 2010
Messages
54
Location
KC Metro, Kansas, USA
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?)
 

marine0300

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Nov 14, 2008
Messages
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Location
Topeka, Kansas, USA
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
 

campfire

Regular Member
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Apr 8, 2010
Messages
54
Location
KC Metro, Kansas, USA
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?
 
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