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Is Maine going consitutional carry?

OC4me

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I checked the laws in other states and I saw no state that had both permitless carry and a duty to notify, despite claims to the contrary earlier in this thread. There may have been a time when states had duty to inform and no requirement for a permit but not now. I've been told that Maine could pass this law and fix the duty to inform later, and that is true. What I'm saying is that so long as the duty to inform exists the permitless carry law would be a hollow victory.
Given that a Maine concealed carry permit would be required under existing federal law in order to possess a firearm within 1,000 foot of a school zone (and these school zones are unmarked and everywhere, especially in cities), one could reasonably argue that they have no legal obligation to potentially incriminate themselves (thus no duty to inform).
 

Grapeshot

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Maine just got a major boost towards Constitutional Carry !!

A recent court decision originating in Puerto Rico went to the 1st Circuit which encompasses the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
http://www.saf.org/?p=6431
This decision now allows the good people there to carry (OC or CC) w/o a permit. :banana:

Totally awesome.
 

Grapeshot

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Given that a Maine concealed carry permit would be required under existing federal law in order to possess a firearm within 1,000 foot of a school zone (and these school zones are unmarked and everywhere, especially in cities), one could reasonably argue that they have no legal obligation to potentially incriminate themselves (thus no duty to inform).
The first GFZA was declared unconstituional - have no doubt that the current one will also be.
 

Grapeshot

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Maine just got a major boost towards Constitutional Carry !!

A recent court decision originating in Puerto Rico went to the 1st Circuit which encompasses the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
http://www.saf.org/?p=6431
This decision now allows the good people there to carry (OC or CC) w/o a permit. :banana:

Totally awesome.
From the link URL: "Gottlieb said the lawsuit was brought in a Puerto Rican Commonwealth court, rather than a federal court. Puerto Rico is a U.S. territory and thus is subject to federal court jurisdiction. "
Woops - looks like jumped the gun, misread as to application to other states :(
 

IA_farmboy

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Linn County, Iowa, USA
How would it be meaningless? You are now able to conceal without a permit. That's HUGE, not meaningless.
Where have you been? It's meaningless because there is a requirement to inform enforced by penalties.

Also, you CANNOT carry a concealed weapon without a permit now, the bill has not become law yet.

Given that a Maine concealed carry permit would be required under existing federal law in order to possess a firearm within 1,000 foot of a school zone (and these school zones are unmarked and everywhere, especially in cities), one could reasonably argue that they have no legal obligation to potentially incriminate themselves (thus no duty to inform).
Okay, you do that while I read about your court case in the news.

The first GFZA was declared unconstituional - have no doubt that the current one will also be.
Do you know why it was declared unconstitutional? It wasn't over the Second Amendment, it was over the Commerce Clause.

It will someday . . . until then no legal duty to inform if there is any remote chance one may be carrying within a 1,000 foot Federal gun-free school zone.
While you are in court for carrying a concealed weapon and failing to inform the police the state will no doubt argue that you were in fact licensed by the state to carry by virtue of state law and therefore cannot use that as a defense. If you were in fact inside a GFSZ at the time then to use that defense against a $100 fine you would have to admit, in a court of law, that you have committed a felony. I'm no lawyer, and I'm certainly not YOUR lawyer, but it seems to me that double jeopardy protections would not apply here.

If taken to federal court the federal government will no doubt argue that you had violated federal law as the state had not issued you a license. I suppose it it possible the state might send an attorney to argue in your defense but I would not count on it. This would be especially problematic for the state if you had already gone to court for failure to inform, you won't look like a squeaky clean law abiding citizen any more.

Good luck to you in either case, I hope you have some wealthy friends to pay your lawyers.

The problem with the GFSZA is that it is never, or rarely, enforced. I suspect this is by design. The powers that be have to know that if challenged in court it is quite possible that the GFSZA could be struck down. Getting GFSZA declared unconstitutional by a federal court would undoubtedly take years. During which time anyone accused would likely be sitting in prison. So, do you want to be the test case? You do that.

A quick internet search tells me that a concealed handgun license in Maine costs $35. With the fine for failure to inform being $100, and it being a federal felony for carrying in a school zone without a license I suspect that anyone that plans to carry a concealed weapon with any regularity will do the math and get a license.

I also did some searching on how Vermont handles this, as they never had a concealed carry permit system. I found two possible answers. First, by virtue of having no state law prohibiting the carry of weapons, and no permitting system in place, the GFSZA cannot be enforced in Vermont as concealed carry is not a crime. Second, as federal enforcement officers don't often find themselves wandering outside of schools looking for armed citizens there is little chance of anyone actually being caught.

If someone wants to claim that the probability of getting caught for failure to inform by the very nature of the weapon being concealed just tells me that the law as it stands right now is equally ineffective. Why then wait for the law to change? Just carry concealed now.
 

IA_farmboy

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I realized after posting the lengthy reply above that I could have just boiled that down to the last paragraph, but I'll keep the post as it is regardless. There might be something of value there.

In case that post above was too long to bother with I'll repeat the part of interest here:

If you are going to argue that it is highly unlikely of getting caught under the either the failure to inform portion of this bill, or the GFSZA, by nature of the weapon being concealed and breaking no other law then why wait for this bill to become law? Just carry concealed with the confidence that no one is going to find out.
 

OC4me

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Northwest Kent County, Michigan
Just saying from a theoretical rather than practical point of view. My posts are meant to foster an academic discussion about the effect of the legislation as it pertains to a 'duty to notify', it does not amount to providing legal advice to anyone. Few individuals have deep enough pockets to fight the system, however, my point is that the legal argument that one cannot be forced to self-incriminate is still a valid defense (theoretically).

"the state will no doubt argue that you were in fact licensed by the state to carry by virtue of state law and therefore cannot use that as a defense."

By the way, in order to satisfy the Federal gun-free school zone statute, one has to be licensed AND that license can only be obtained after law enforcement authorities determine that the individual is qualified.

I don't see how, by virtue of the contemplated Maine constitutional carry legislation, someone would be considered 'licensed' in the first place since the license requirement is optional and they didn't bother to get it. Second, even if so, by what mechanism would Maine then argue that the relevant law enforcement authorities have determined that the arrested individual had been deemed qualified. Note: having a law enforcement determine qualifications on an individual case-by-case basis is completely different than the State claiming that law-abiding citizens are qualified by blanked action of state law. In other words, a law enforcement agency (not the State legislature) must make the determination to satisfy the Feds. Hence, the Federal requirement cannot be met when carrying pursuant to the Main constitutional carry bill in question.

Here is the relevant text of the two-pronged Federal requirement:

" . . . if the individual possessing the firearm is licensed to do so by the State . . . and the law of the State . . . requires that . . . the law enforcement authorities of the State . . . verify that the individual is qualified under law to receive the license . . ."
 
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boyscout399

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Lyman, Maine
Do you know why it was declared unconstitutional? It wasn't over the Second Amendment, it was over the Commerce Clause.
Wrong. The first GFSZ act was declared unconstitutional because the Supreme Court said Congress had no authority under Article I Section 8 to write such a law. Their attempt to make it constitutional was to re-pass it under the commerce clause. They added the text that the firearm must be involved in interstate commerce. The new law has been untested.
 

IA_farmboy

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Linn County, Iowa, USA
Just saying from a theoretical rather than practical point of view. My posts are meant to foster an academic discussion about the effect of the legislation as it pertains to a 'duty to notify', it does not amount to providing legal advice to anyone. Few individuals have deep enough pockets to fight the system, however, my point is that the legal argument that one cannot be forced to self-incriminate is still a valid defense (theoretically).
I also wish to foster an academic discussion, my use of "you" above is not necessarily directed at "you, the author" but also to "you, the reader". I also see that my explanation for why your theory is flawed was insufficient.

"the state will no doubt argue that you were in fact licensed by the state to carry by virtue of state law and therefore cannot use that as a defense."

By the way, in order to satisfy the Federal gun-free school zone statute, one has to be licensed AND that license can only be obtained after law enforcement authorities determine that the individual is qualified.

I don't see how, by virtue of the contemplated Maine constitutional carry legislation, someone would be considered 'licensed' in the first place since the license requirement is optional and they didn't bother to get it. Second, even if so, by what mechanism would Maine then argue that the relevant law enforcement authorities have determined that the arrested individual had been deemed qualified. Note: having a law enforcement determine qualifications on an individual case-by-case basis is completely different than the State claiming that law-abiding citizens are qualified by blanked action of state law. In other words, a law enforcement agency (not the State legislature) must make the determination to satisfy the Feds. Hence, the Federal requirement cannot be met when carrying pursuant to the Main constitutional carry bill in question.

Here is the relevant text of the two-pronged Federal requirement:

" . . . if the individual possessing the firearm is licensed to do so by the State . . . and the law of the State . . . requires that . . . the law enforcement authorities of the State . . . verify that the individual is qualified under law to receive the license . . ."
I'll again play this out by example. You (the reader) are in a city in Maine with this bill as written having passed into law and stopped by both a state law enforcement officer (SLEO) and a federal law enforcement officer (FLEO). As you are unsure if the duty to inform applies, and/or believe stating you are armed may incriminate you under federal law, you remain silent. During this interaction it is discovered you are armed. Now, you may ask why the stop came about. Let's assume this was over a minor infraction of the law (perhaps littering) or you were a witness to a crime (say purse snatching or a fender bender as earlier) meaning you were lawfully detained but unlikely to get any citation for violation of law if the firearm was not discovered. You are arrested by both officers. Rather than plead guilty to any crime you go to court for both, state court first.

In state court you admit that you did not inform the SLEO of being armed because, not knowing exactly how far from any school you were, that you feared incriminating yourself to either the FLEO or both officers. The state prosecutor argues that after review of both state and federal law this defense cannot apply. The state views you as properly licensed as they see it as all persons are presumed to be fit to possess and carry a firearm unless found otherwise, the state does not see any potential violation of federal law. The SLEO is brought on the stand, verifies the location of the arrest, and and states every SLEO was instructed by the chief of police that anyone outside of the 500 feet from a school, as defined in Maine law, cannot be charged with carrying a concealed weapon in a school zone. The court finds against you, you are fined $100.

Confident that the state found that federal law does not apply you make your case in federal court. You state in court that the state of Maine views all persons lawfully carrying a concealed firearm has fulfilled the requirements of the GFSZA as laid out in federal law, therefore there was no violation. The prosecutor states that after review of federal and state law only those people that have stated they were armed may claim protection as "lawfully licensed". They have record of the state court proceedings and/or FLEO testimony of the encounter as verification of what happened. The court rules that as you did not state plainly that you were armed during the encounter that you had violated federal law, guilty as charged.

There are some variations on this theme that I could play through. Perhaps you paid the state fine and in federal court this created some reasonable doubt as to what happened. Perhaps only one officer, SLEO or FLEO, was present. Having just one officer there may make things simpler, or perhaps complicate it more, either way I do not see how keeping silent is going to act in your favor.

Again, if you are going to claim that keeping silent is going to keep you out of jail then you are telling me that you can carry concealed weapons now. All they did was change the size of the fine for getting caught for carrying a concealed weapon from a possible infraction ($100 fine) from a misdemeanor ($1000 fine). If you truly fear that you may find yourself inside a federally defined GFSZ then it would be in your best interest to get a permit rather than roll the dice on remaining silent.

All that said this bill does nothing to change the state defined 500 foot GFSZ around a school. Getting caught in there with a firearm, concealed or not, is a misdemeanor. Getting caught without a license also carries the possibility of a federal felony. So, get a license and shut up with or without this bill becoming law.
 
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IA_farmboy

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Wrong. The first GFSZ act was declared unconstitutional because the Supreme Court said Congress had no authority under Article I Section 8 to write such a law. Their attempt to make it constitutional was to re-pass it under the commerce clause. They added the text that the firearm must be involved in interstate commerce. The new law has been untested.
Congress argued that they had the authority to pass the first iteration of the GFSZA under the commerce clause, the courts rejected it. In response they passed a nearly identical law only adding an explanatory clause on how it is under congressional authority to pass this law, per the commerce clause, and add some conditions on how the firearm must have crossed state lines and attaching incentives for states to enact enforcement under penalty of losing federal school funding.

So, as I said, the law was ruled unconstitutional as it did not meet the provisions of the commerce clause which, as you point out, can be found in Article I Section 8.

Yet you would still be able to carry concealed with no permit. How is that "meaningless"? Your all or nothing approach is laughable.
It's meaningless because I have you telling me that there is no issue so long as anyone carrying under this bill informs the officer, while at the same time I have OC4me telling me that so long as there is doubt that the federal GFSZA applies (which could apply anywhere in a city) that informing could be a violation of the Fifth Amendment. Also, it appears that all parties in this conversation agrees that so long as you keep your firearm concealed, obey the law, and keep quiet that is very unlikely anyone would be charged under this bill as written.

Then I have what you said back in post #80:

Part of the beauty of the law is that it leaves the current permitting process intact exactly as it currently stands. If you don't want to have to inform, then you can get a permit.
So, to keep quiet and not get caught up in this law all you have to do is get a permit. This is precisely what I have been saying all along. Without the permit in your pocket I have two conflicting opinions on how to best handle this law if enacted, always keep quiet or always inform.

Yet you still don't see a problem with this?

Again, if we are going to apply the "keep quiet and stay out of trouble" to avoid having to be caught in the dilemma of having to inform or not then this is no different than the way the law is now. The only difference is the penalty for getting caught, $100 fine for an infraction or $1000 fine for a misdemeanor.

Yes, getting the penalty for violation reduced is a win to me. What it is not is a VP Biden approved "big f***ing deal" as you claim.
 

press1280

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The Maine legislature says it was sent back to the Senate and the Senate put it on the Special Appropriations table. My understanding is that meant it needed one more procedural vote by Appropriations Committee before being sent to the Governor. I could be wrong here. I don't know the inner workings and the documents are hard to read and interpret.
http://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280055116
My understanding is because the permit won't be necessary, they're thinking there's going to be lost revenue as a result. It could be a BS procedural maneuver to derail the bill. I would hope they would take in the fact that the new reciprocity law will dramatically increase the coverage of the Maine permit, and it should lead to reciprocity with NH, which must be passed when traveling to any other state. This should help nullify any potential losses.
 

Grapeshot

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Originally Posted by boyscout399

Wrong. The first GFSZ act was declared unconstitutional because the Supreme Court said Congress had no authority under Article I Section 8 to write such a law. Their attempt to make it constitutional was to re-pass it under the commerce clause. They added the text that the firearm must be involved in interstate commerce. The new law has been untested.
Where have you been? It's meaningless because there is a requirement to inform enforced by penalties.

Also, you CANNOT carry a concealed weapon without a permit now, the bill has not become law yet.

Okay, you do that while I read about your court case in the news.

Do you know why it was declared unconstitutional? It wasn't over the Second Amendment, it was over the Commerce Clause.

--snipped--
The last/revised GFSZA may still be unconstitutional under the commerce clause, then add in a violation of the 10th Amendment.
https://books.google.com/books?id=F...6AEwBA#v=onepage&q=compare both GFSZA&f=false
 
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IA_farmboy

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The last/revised GFSZA may still be unconstitutional under the commerce clause, then add in a violation of the 10th Amendment.
https://books.google.com/books?id=F...6AEwBA#v=onepage&q=compare both GFSZA&f=false
Of course the GFSZA as enacted is unconstitutional, it's also just plain poorly written. Just one example of how the act is poorly written is that there is an exception for private property within the school zone, an exception for people traveling through (by unloading and placing firearm in a container), but no exception for allowing people to take the firearm between their vehicle and their private property. A firearm in a home before the act went into effect cannot lawfully leave, and any one that wishes to take a firearm to their private property cannot lawfully do so.

Again, I suspect that this law is rarely or never enforced by design. So long as it is not enforced they can keep people fearful of getting caught while not enabling anyone to have standing to challenge. As the penalty is a felony no law abiding citizen is going to challenge the law. No one with ill intent fears the law, as history shows these people have a tendency to know that entering a school while armed means it is likely they will not leave alive. Such people are not deterred by a sign on a door.
 

IA_farmboy

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My understanding is because the permit won't be necessary, they're thinking there's going to be lost revenue as a result. It could be a BS procedural maneuver to derail the bill. I would hope they would take in the fact that the new reciprocity law will dramatically increase the coverage of the Maine permit, and it should lead to reciprocity with NH, which must be passed when traveling to any other state. This should help nullify any potential losses.
I have the same suspicions. This bill passed only with some careful wording added to appease the governor and the gun grabbers. (Did I just repeat myself?) It is quite possible that there are persons with influence in the legislature that are both willing and able to kill this bill. The loss of revenue sounds to me like a poor excuse to kill this bill, there should also be a coincident loss of costs as a result. Fewer applicants paying fees also means fewer licenses getting printed, I'd think that these should balance somewhat or perhaps even be a benefit to the budget.

As for passing through New Hampshire, I recall NH has their own permitless carry bill. Did that die a horrible death? I'll look into myself but I would still appreciate information from reliable sources on the matter.
 

77zach

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I have the same suspicions. This bill passed only with some careful wording added to appease the governor and the gun grabbers. (Did I just repeat myself?) It is quite possible that there are persons with influence in the legislature that are both willing and able to kill this bill. The loss of revenue sounds to me like a poor excuse to kill this bill, there should also be a coincident loss of costs as a result. Fewer applicants paying fees also means fewer licenses getting printed, I'd think that these should balance somewhat or perhaps even be a benefit to the budget.

As for passing through New Hampshire, I recall NH has their own permitless carry bill. Did that die a horrible death? I'll look into myself but I would still appreciate information from reliable sources on the matter.
NH's is on the Demonrat governor's desk. It is against her religion not to veto it.
 

IA_farmboy

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Cop stops person for speeding. Obtains driver's license, insurance, registration. Goes back, calls information in, nothing comes back. Officer returns to vehicle and asks, "Oh, by the way, you don't have any firearms, do you?" Uninformed traveler answers, "Yes, I'm carrying, but no permit is required in Maine, I checked." Here's your $100 ticket.
DING! DING! DING! We have a winner!

To those that claim that silence is golden, failure to answer correctly to the officer could result in a more serious charge.

With a $100 fine no one is likely to fight this. With the law as it is now, a $1000 fine, people will fight. A $100 fine people won't fight, and no lawyer will take that case. People that do fight will likely have an officer as a no-show in court, resulting in the charge getting thrown out. Thrown out or not the officer made their point, "you will obey."

To those that think keeping quiet is the best policy, that could result in a more serious charge. To those that say people should just get a license, then nothing has changed. To those that say you should just follow the law and inform, I give the example that NavyLCDR gave above.

I won't go so far as NavyLCDR and claim this bill would be a loss if passed, I will say that if there is a gain it is very very small.
 

boyscout399

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DING! DING! DING! We have a winner!

To those that claim that silence is golden, failure to answer correctly to the officer could result in a more serious charge.

With a $100 fine no one is likely to fight this. With the law as it is now, a $1000 fine, people will fight. A $100 fine people won't fight, and no lawyer will take that case. People that do fight will likely have an officer as a no-show in court, resulting in the charge getting thrown out. Thrown out or not the officer made their point, "you will obey."

To those that think keeping quiet is the best policy, that could result in a more serious charge. To those that say people should just get a license, then nothing has changed. To those that say you should just follow the law and inform, I give the example that NavyLCDR gave above.

I won't go so far as NavyLCDR and claim this bill would be a loss if passed, I will say that if there is a gain it is very very small.
Ignorance of the law is not an excuse. No different than driving in a different state that doesn't allow right turn on red, making the illegal turn, and then claiming ignorance. You broke the law, you pay the price...
 
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