Open Carry *MAY* already be legal - An Assignment

[Aknazer]

As I said earlier, this section of 1290.22 is really about property rights, not gun rights. I think what is it saying is 1272 and 1290 are not to be considered to infringe on a persons real property rights. (as in: secure in person and property in the 4th ammendment, and whatever section of the OK constition equates to the 4th)

Consider your F&W laws. Can you hunt with a handgun? Can you carry when you hunt or fish? Do you have to have a CC license to carry at all when you hunt and fish? If you can hunt in OK with a handgun, and if you do not have to have a CC license to do so, you will have proof that not all carry is regulated by 1290..Right?

Unfortunately, I do not have time rght now to look up your F&W law, but if OK is like most other states it is legal to hunt with a handgun...and I would also lay odds that you do not need a CPL to do so, and I bet that you can OC that hunting handgun.

All I am trying to do with this argument is to show that 1272, and 1290 are not as "exclusive" as you believe them to be.

1272 Flys in the face of your constitition, I still cannot believe it has not be challenged...

1272 (unlawful carry) gives an exemption for hunting, fishing, and recreational use. 1289.6 (conditions under which one may carry) also states that one may carry when hunting/fishing.

So yes, someone may OC while hunting/fishing, but only because there are exemptions built into the law. There is no exemption for being in your house/on your property and as such to "legally" be able to OC (or CC w/o a permit) on your property you need to be able to meet one of the exemptions. But unless you aren't in city limits or you have a range on hand, you are going to run into firearm discharge issues.

I do appreciate all this work you have been putting into this to try and find a way around it though. I tried similar things when I first moved here and maybe a different set of eyes will be able to see something that we have missed. But so far the only thing we have been able to find is that it is simply unconstitutional, but everyone I know that has tried to get a ruling from the AG has been stonewalled.

 

[hermannr]

The big difference is public land, V. private land. A public government building V a private business. What you do on your private land, or in private business, has to negatively impact the public at large (that is the legal arguments behind most building codes) before it can be regulated..OC or CC on your private land/business does not fit what can be regulated. That is the reason for 1290.22...leaving that out would open a trap that would be so big some business with enough money to take the state to court would have that whole law in court in a minute...and the state WOULD loose...and they knew it when it was originally passed.

The state has no interest or right to regulate what you do on your own private property that does not perminantly negatively impact someone else. If you look at court rulings where zoning laws and building codes have been challanged the pervailing interest of the state is in the public in general, and if your property was never sold, ever, then in theory you would be exempt of any building code. The theory of the reason the state can impose a building code is the assumption that at some time it will be sold to someone else, and that who is being protected by that code, not you.

Otherwise, private property rights would overrule any attempt to impose something like a building code. Same goes to a city's rule that you cannot discharge a firearm within the densely populated city. It is a general rule for the greater public. OC or CC or parking a car or travel trailer in your private yard do not affect anyone in the public at large, and therefore are not regulated.

Yes, I know some "planned communities" do ban cars parked outside a garage or other things like that, but that is not law, it is part of a contract you sgn when you join that "planned community".

Another point is back to the OK constitution Sec II-26 (in part) The right of a citizen to keep and bear arms in defense of his
home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited;

This first part says: You can bear arms as you see fit to protect your person or property and the right cannot be prohibited. If a law were to prohibit, or license, a persons right to protect his property (not just his house) it would automatically be unconstitutional.

The second part says this right may be regulated by the legislature. Again, only in the greater general interest of the public at large. There is no way, with this section of the constitution in place, that the state can regulate what you do, in relation to carry, on your own property.

Another interesting thing with this section of the constitution is, it would also seem that local governments cannot make any law as concerns the right to bear arms. It specifically states "the legislature may regulate", and the word "public" is implied.

In other states with similar constitutional statements (ie ID) that allow the legislature to regulate carry, the courts have ruled that the legislature may regulate CC, but not OC in the general public...they do allow for places where no-one can carry (as inside a jail)

For me to agree that I could not CC or OC on my own property if it was specifically stated in a specific law that carry was not lawful on my own property or business, but I would be in court so fast it would spin your head. And I would receive summery judgement. That type of law goes totally against the OK constitution.

Anyway: lets go back to 1272. It states "except as permitted by statute or the self-defence act" Also, note that 1290 is called teh "self defence act" Not the "concealed firearms act" 1290 does not just deal with CC.

As I said before...read 1290.22(A) carefully...it is your license to carry on your own property.

TITLE 21 § 1290.22 BUSINESS OWNER’S RIGHTS
A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.

Edited to add: Note in 1290.22 it says "...existing rights..." Where are these "existing rights" enumerated? The OK state constitution right to bear arms.

 

[okiebryan]

I'm not going into the circular argument that is Oklahoma State law, but I will tell you this:

I have a wrecker business in Oklahoma City, and a state impound. Cops sometimes come here to inspect vehicles, and once they came to arrest someone I had trespassed when he refused to leave. I OC on the property of this business. The cops haven't had any problem with it. One of the cops who came to arrest the trespasser asked me "Do you have a CC permit?" My response was, "I'm not CCing". He then said, "Oh, yeah, you are on your own property." and walked away after he asked me a question about the guy they were arresting.

Anyone ever been to H&H? Or Gun World in Del City? Every employee is open carrying. The owner of Gun World is a Deputy Sheriff. I think the precedent has been set, if not in a court of law.

 

[hrdware]

I'm not going into the circular argument that is Oklahoma State law, but I will tell you this:

I have a wrecker business in Oklahoma City, and a state impound. Cops sometimes come here to inspect vehicles, and once they came to arrest someone I had trespassed when he refused to leave. I OC on the property of this business. The cops haven't had any problem with it. One of the cops who came to arrest the trespasser asked me "Do you have a CC permit?" My response was, "I'm not CCing". He then said, "Oh, yeah, you are on your own property." and walked away after he asked me a question about the guy they were arresting.

Anyone ever been to H&H? Or Gun World in Del City? Every employee is open carrying. The owner of Gun World is a Deputy Sheriff. I think the precedent has been set, if not in a court of law.

Glad that the LEO didn't bother you about your OC, however, LEO and businesses (H&H and Gun World) do not set precedent, courts do. Just because the LEO did not know, or decided not to prosecute the violation of the law does not make it correct. Have you ever gotten a warning ticket, or had an officer pass you while you were speeding? Does that then mean there is a precedent to allow you to speed because the officer did not give you a citation of violating the law...I think not. Also what Officer A does in his jurisdiction does not have to be what Officer B does in theirs, hence the state needs to fix this as we have state preemption.

H&H and Gun World are private businesses and can allow whatever they want in the confines of their business, just as you can allow whatever in your own home. What a private business allows and what people allow in/on their own property do not set precedents.

 

[hrdware]

The big difference is public land, V. private land. A public government building V a private business. What you do on your private land, or in private business, has to negatively impact the public at large (that is the legal arguments behind most building codes) before it can be regulated..OC or CC on your private land/business does not fit what can be regulated. That is the reason for 1290.22...leaving that out would open a trap that would be so big some business with enough money to take the state to court would have that whole law in court in a minute...and the state WOULD loose...and they knew it when it was originally passed.

The state has no interest or right to regulate what you do on your own private property that does not perminantly negatively impact someone else. If you look at court rulings where zoning laws and building codes have been challanged the pervailing interest of the state is in the public in general, and if your property was never sold, ever, then in theory you would be exempt of any building code. The theory of the reason the state can impose a building code is the assumption that at some time it will be sold to someone else, and that who is being protected by that code, not you.

Otherwise, private property rights would overrule any attempt to impose something like a building code. Same goes to a city's rule that you cannot discharge a firearm within the densely populated city. It is a general rule for the greater public. OC or CC or parking a car or travel trailer in your private yard do not affect anyone in the public at large, and therefore are not regulated.

Yes, I know some "planned communities" do ban cars parked outside a garage or other things like that, but that is not law, it is part of a contract you sgn when you join that "planned community".

Another point is back to the OK constitution Sec II-26 (in part) The right of a citizen to keep and bear arms in defense of his
home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited;

This first part says: You can bear arms as you see fit to protect your person or property and the right cannot be prohibited. If a law were to prohibit, or license, a persons right to protect his property (not just his house) it would automatically be unconstitutional.

The second part says this right may be regulated by the legislature. Again, only in the greater general interest of the public at large. There is no way, with this section of the constitution in place, that the state can regulate what you do, in relation to carry, on your own property.

Another interesting thing with this section of the constitution is, it would also seem that local governments cannot make any law as concerns the right to bear arms. It specifically states "the legislature may regulate", and the word "public" is implied.

In other states with similar constitutional statements (ie ID) that allow the legislature to regulate carry, the courts have ruled that the legislature may regulate CC, but not OC in the general public...they do allow for places where no-one can carry (as inside a jail)

For me to agree that I could not CC or OC on my own property if it was specifically stated in a specific law that carry was not lawful on my own property or business, but I would be in court so fast it would spin your head. And I would receive summery judgement. That type of law goes totally against the OK constitution.

Anyway: lets go back to 1272. It states "except as permitted by statute or the self-defence act" Also, note that 1290 is called teh "self defence act" Not the "concealed firearms act" 1290 does not just deal with CC.

As I said before...read 1290.22(A) carefully...it is your license to carry on your own property.

TITLE 21 § 1290.22 BUSINESS OWNER’S RIGHTS
A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the. possession of weapons on any property owned or controlled by the person or business entity.

Edited to add: Note in 1290.22 it says "...existing rights..." Where are these "existing rights" enumerated? The OK state constitution right to bear arms.

In general, I don't think anyone is disagreeing with you that OK laws are contradictory to each other and to the state constitution, but no one has the extra $$$ or time to try and fight it in court, so we are trying to have the legislature fix it.

1290.22 Says that the Self-Defense Act does not diminish the right of the property owner to decide who they want to allow in or out of their property. The self defense act specifically deals with concealed weapons, and a permit allows you to carry a concealed weapon. 1290.22(A) only says the owner can determine if they want to allow those persons carrying a concealed weapon to come into their business. Sure you could stretch this to mean that I (as a property owner) can decide if I want people to carry concealed in my house, but it has nothing to do with open carry. Your permit allows you to carry a concealed weapon....that's all it allows you to do.

 

[okiebryan]

Glad that the LEO didn't bother you about your OC, however, LEO and businesses (H&H and Gun World) do not set precedent, courts do. Just because the LEO did not know, or decided not to prosecute the violation of the law does not make it correct. Have you ever gotten a warning ticket, or had an officer pass you while you were speeding? Does that then mean there is a precedent to allow you to speed because the officer did not give you a citation of violating the law...I think not. Also what Officer A does in his jurisdiction does not have to be what Officer B does in theirs, hence the state needs to fix this as we have state preemption.

H&H and Gun World are private businesses and can allow whatever they want in the confines of their business, just as you can allow whatever in your own home. What a private business allows and what people allow in/on their own property do not set precedents.

Perhaps you should read my post again. I understand what precedence means and doesn't mean. I posted that I OPEN CARRY in the confines of my own business, and that LEOs come here often and most don't say a word. My understanding is that open carrying at my own business is not a violation of the law. That appears to be the understanding of law enforcement, as well.

 

[hrdware]

Perhaps you should read my post again. I understand what precedence means and doesn't mean. I posted that I OPEN CARRY in the confines of my own business, and that LEOs come here often and most don't say a word. My understanding is that open carrying at my own business is not a violation of the law. That appears to be the understanding of law enforcement, as well.

Maybe I did misunderstand your post.

Open carry in your business is certainly legal, no disputing that. Open carry outside your business dwelling even on your own business property is what is technically not legal. I would agree that many cops would probably give someone a pass for OC on their own property. However this won't always work. If I'm out mowing my lawn and the neighbors call in, the cops will probably not do much the first time or 2. After that, it could get to be a nuisance for them and they could cite me with disorderly conduct or disturbing the peace. At anytime in this process or even at the onset they could arrest me for open carry.

Technically they could do that even if the firearm was unloaded as the law sets out specific times when you can carry a firearm either loaded or unloaded.

 

[okiebryan]

Since my impound lot is INSIDE the same building as the office, and on the same property, I'd venture to say that I'm well covered open carrying at work.

 

[Grapeshot]

Since my impound lot is INSIDE the same building as the office, and on the same property, I'd venture to say that I'm well covered open carrying at work.

How is a "lot" (open area of land) inside a building? Seems that would make it a garage in this instance.

 

[hermannr]

Maybe I did misunderstand your post.

Open carry in your business is certainly legal, no disputing that. Open carry outside your business dwelling even on your own business property is what is technically not legal. I would agree that many cops would probably give someone a pass for OC on their own property. However this won't always work. If I'm out mowing my lawn and the neighbors call in, the cops will probably not do much the first time or 2. After that, it could get to be a nuisance for them and they could cite me with disorderly conduct or disturbing the peace. At anytime in this process or even at the onset they could arrest me for open carry.

Technically they could do that even if the firearm was unloaded as the law sets out specific times when you can carry a firearm either loaded or unloaded.

OK, to openly show and counter your last statement as absolutely invalid. see Title 21-1289(16) (in part):

It shall be unlawful for any person to willfully or without lawful cause point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or not, at any person or persons....except...or in defense of any person, one's home or property

You may want to also read more of thsi Ag opinion: "Moreover, the language of Section 1290.22 expresses a Legislative intent that the ability of property owners and holders to control weapons thereon is not affected by the legislative preemption"

Now, lets say I have a large parcel of land (I do, just not in OK) and I have an equipment shed 2 miles away from my home, and I catch someone breaking in and stealing stuff... Now, 1289(16) says it is lawful for me to point my loaded pistol at that thief...If I cannot have posession of the pistol loaded outside of my house, how am I going to protect my Property as provided in this section? You can OC or CC without a license in OK on your own property, or property you are and invited guest

You might want to reference this link: http://www.oscn.net/applications/oscn/DeliverDocument.asp?citeid=69757

 

[okiebryan]

How is a "lot" (open area of land) inside a building? Seems that would make it a garage in this instance.

Since "Impound Garage" makes little to no sense, I chose to use a more familiar term to communicate that the impound "area" was "inside the business".

Do you often nitpick people to death? It's somewhat annoying, especially since the meaning of the sentence was pretty clear.

 

[Grapeshot]

Since "Impound Garage" makes little to no sense, I chose to use a more familiar term to communicate that the impound "area" was "inside the business".

Do you often nitpick people to death? It's somewhat annoying, especially since the meaning of the sentence was pretty clear.

Strange you're considering one question as "nitpick(ing) people to death" - the question was not of major import, but it was seriously made. Firearms laws sometimes have a different application whether inside a building or outside.

Don't see a reason for a rude attitude. Would benefit you to take a more reasoned approach.

 

[hrdware]

OK, to openly show and counter your last statement as absolutely invalid. see Title 21-1289(16) (in part):

It shall be unlawful for any person to willfully or without lawful cause point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or not, at any person or persons....except...or in defense of any person, one's home or property

You may want to also read more of thsi Ag opinion: "Moreover, the language of Section 1290.22 expresses a Legislative intent that the ability of property owners and holders to control weapons thereon is not affected by the legislative preemption"

Now, lets say I have a large parcel of land (I do, just not in OK) and I have an equipment shed 2 miles away from my home, and I catch someone breaking in and stealing stuff... Now, 1289(16) says it is lawful for me to point my loaded pistol at that thief...If I cannot have posession of the pistol loaded outside of my house, how am I going to protect my Property as provided in this section? You can OC or CC without a license in OK on your own property, or property you are and invited guest

You might want to reference this link: http://www.oscn.net/applications/oscn/DeliverDocument.asp?citeid=69757

The law allows you to use a firearm in defense of your property...to that end, you may carry a firearm while defending your property. Other than that, in an incorporated area, where you are not allowed to discharge your firearm for hunting or recreational purposes, you would not be allowed to openly carry a firearm outside of your home because you might need to use it for defense.

I'm not sure why you think we disagree about property owners deciding who can and can not carry on/in their property, I think we are on the same page there. In an incorporated area, you can carry in your own property, but not on your own property. This is because the exemptions for when you can carry "just because" don't generally happen on private property inside an incorporated area. I can't hunt in my backyard, I'm not preparing for a reenactment, I'm not in a parade, I can't set up a recognized sporting event in my backyard. Those are mostly all of the exceptions for when you can carry a loaded firearm.

The state has preemption in regards to ownership and carrying, municipalities can regulate the discharging of firearms however. Most municipalities make it illegal to discharge a firearm in city limits, therefore I am not allowed to hunt in the city limits so saying I'm carrying for hunting is out of the question. The problem is that there is not an exemption for carrying for self-defense when not on your property.

 

[hermannr]

The law allows you to use a firearm in defense of your property...to that end, you may carry a firearm while defending your property. Other than that, in an incorporated area, where you are not allowed to discharge your firearm for hunting or recreational purposes, you would not be allowed to openly carry a firearm outside of your home because you might need to use it for defense.

I'm not sure why you think we disagree about property owners deciding who can and can not carry on/in their property, I think we are on the same page there. In an incorporated area, you can carry in your own property, but not on your own property. This is because the exemptions for when you can carry "just because" don't generally happen on private property inside an incorporated area. I can't hunt in my backyard, I'm not preparing for a reenactment, I'm not in a parade, I can't set up a recognized sporting event in my backyard. Those are mostly all of the exceptions for when you can carry a loaded firearm.

The state has preemption in regards to ownership and carrying, municipalities can regulate the discharging of firearms however. Most municipalities make it illegal to discharge a firearm in city limits, therefore I am not allowed to hunt in the city limits so saying I'm carrying for hunting is out of the question. The problem is that there is not an exemption for carrying for self-defense when not on your property.

Hrdware: We disagree simply because what you see as a privilage (if you need a license it is a privilage) I see as a RIGHT. A RIGHT cannot be licensed because if it was, it would no longer be a right, but a privilage. You have personal private property RIGHTS and what you do on your property, that does not damage your neighbor, is none of the government's business. Carrying a firearm ON your property is one of them.

IMHO you are absolutely wrong about carry UPON your own property and I do not understand where your idea that you could not carry as you please ON your own property comes from. For the life of me I cannot understand. You live in OK not Washington DC. That is why I asked you to show me a LAW that says you CANNOT do as you please ON your own property? to me, if nothing else, 21-1290.22 specifically states that you can, regardless of what anything else says.

There is also the same implied in 1289.2 "...without unnecessarily denying their lawfull use in defence of life, home and PROPERTY..."

Anyway, we will see if Rep Paul Wesselhoft will reply to my email and his answer to the question for us. I tried him first. If I get no reply in a couple weeks I'll try Rep Randy Terrill.

Thanks for those email addresses BTW:

Edited to add: There is no exemption to add carry for self defence on your property because there is no need for an exemption..the OK constitution Article 2 (the bill of RIGHTS) section 26 (sorry if I said 24 before, that is WA section) declares the RIGHT for you to protect yourself, others, and your PROPERTY. That RIGHT IS your exemption.

 

[okiebryan]

Strange you're considering one question as "nitpick(ing) people to death" - the question was not of major import, but it was seriously made. Firearms laws sometimes have a different application whether inside a building or outside.

Don't see a reason for a rude attitude. Would benefit you to take a more reasoned approach.

I didn't see a reason for a rude attitude, either. That's why I didn't choose to exhibit one. I didn't realize that communicating that your question annoyed me was out of line. Annoy away, I won't say a word.

 

[hermannr]

I'm not going into the circular argument that is Oklahoma State law, but I will tell you this:

I have a wrecker business in Oklahoma City, and a state impound. Cops sometimes come here to inspect vehicles, and once they came to arrest someone I had trespassed when he refused to leave. I OC on the property of this business. The cops haven't had any problem with it. One of the cops who came to arrest the trespasser asked me "Do you have a CC permit?" My response was, "I'm not CCing". He then said, "Oh, yeah, you are on your own property." and walked away after he asked me a question about the guy they were arresting.

Anyone ever been to H&H? Or Gun World in Del City? Every employee is open carrying. The owner of Gun World is a Deputy Sheriff. I think the precedent has been set, if not in a court of law.

Hej Okiebryan! I like the wording the officer used..."Oh yeah, you are ON your own property" NOT...in your own business or building...

 

[okboomer]

I'm not going into the circular argument that is Oklahoma State law, but I will tell you this:

I have a wrecker business in Oklahoma City, and a state impound. Cops sometimes come here to inspect vehicles, and once they came to arrest someone I had trespassed when he refused to leave. I OC on the property of this business. The cops haven't had any problem with it. One of the cops who came to arrest the trespasser asked me "Do you have a CC permit?" My response was, "I'm not CCing". He then said, "Oh, yeah, you are on your own property." and walked away after he asked me a question about the guy they were arresting.

Anyone ever been to H&H? Or Gun World in Del City? Every employee is open carrying. The owner of Gun World is a Deputy Sheriff. I think the precedent has been set, if not in a court of law.

Yes, I have OCd in H&H and in my private business. The operator here is that it was private property and the business owner granted permission.

 

[okboomer]

Maybe I did misunderstand your post.

Open carry in your business is certainly legal, no disputing that. Open carry outside your business dwelling even on your own business property is what is technically not legal. I would agree that many cops would probably give someone a pass for OC on their own property. However this won't always work. If I'm out mowing my lawn and the neighbors call in, the cops will probably not do much the first time or 2. After that, it could get to be a nuisance for them and they could cite me with disorderly conduct or disturbing the peace. At anytime in this process or even at the onset they could arrest me for open carry.

Technically they could do that even if the firearm was unloaded as the law sets out specific times when you can carry a firearm either loaded or unloaded.

Nope, as long as the business had a fence around the perimeter and he was inside that perimeter fence, a privacy fence generally, OC about the property is legal. Same with a private residence, except for any current city ordinance prohibiting the public display of a firearm ... which a lot of them do have. So, at a private residence, as long as you have a privacy fence, you can OC behind that privacy fence all day. But, the moment you step into an area where the general public can see you, you had better be concealing that firearm as the laws are currently written.

Now, outside of cities and municipalities, say, at your farm house or out in your wheat field, OC is not regulated in any way. Not even LEO have the right to come on your property absent RAS and/or PC to harrass you about OC.

 

[okboomer]

OK, to openly show and counter your last statement as absolutely invalid. see Title 21-1289(16) (in part):

It shall be unlawful for any person to willfully or without lawful cause point a shotgun, rifle or pistol, or any deadly weapon, whether loaded or not, at any person or persons....except...or in defense of any person, one's home or property

You may want to also read more of thsi Ag opinion: "Moreover, the language of Section 1290.22 expresses a Legislative intent that the ability of property owners and holders to control weapons thereon is not affected by the legislative preemption"

Now, lets say I have a large parcel of land (I do, just not in OK) and I have an equipment shed 2 miles away from my home, and I catch someone breaking in and stealing stuff... Now, 1289(16) says it is lawful for me to point my loaded pistol at that thief...If I cannot have posession of the pistol loaded outside of my house, how am I going to protect my Property as provided in this section? You can OC or CC without a license in OK on your own property, or property you are and invited guest

You might want to reference this link: http://www.oscn.net/applications/oscn/DeliverDocument.asp?citeid=69757

We have a very strong and quite liberal Castle Doctrine

Hey, we can even carry weapons in our vehicles while parked in parking lots :lol:

 

[KBCraig]

Hey, we can even carry weapons in our vehicles while parked in parking lots :lol:

But you can't sleep it off in your car in the parking lot after drinking too much, because you're in "actual physical control of the vehicle" while passed out in the back seat.

Your chances are better to just go ahead and drive drunk. OK has some seriously messed up laws.

(I can say that, because my mother was born outside Marlow, and her father was born in OIT, in what is now Love County.)