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[georg jetson]

Not trying to be intentionally dense Georg but...
If the GFSZ law allows all constitutionally protected activities involving guns how it is that it prohibits the possession of a gun in a GFSZ? It doesn't say concealed gun it says NO GUNS allowed in a GFSZ.
It prohibits and allows? Contradictory.

I hear ya Tdog... I'm not trying to be dense either... I think you're putting to much faith in the fact that the legislature knew what it was doing when they enacted 14:95.2. Remember most people are unaware of OCing in the first place... the same was probably true back in the early '90s when this became law.

My fingers are tired... I think I've typed all I'm gonna type on this for a while... whew...

 

[georg jetson]

Then there must be case law or AG opinion to support your opinion as such. The GFSZ law is null and void if what you state is accurate. Legislation is not typically written to be self-nullifying. When the carry of weapons is banned in a statute, the carry of weapons is not going to be exempted in the same statute.


You appear to be confusing your opinion about what C(5) means, with what the legislative body intended it to mean. Do you have authoritative citation that supports your opinion? Do you understand that if your opinion is accurate, the law itself was null and void as soon as it was engrossed as written (prior to HB556)?

You're statement about a "self-nullifying" statute is VERY reasonable. However, the statute was enacted due to political pressure.... as many are... Politics tends to warp the "intentions" of our representatives. The actual intention(it appears to me) was to come down on those that shouldn't possess firearms in the first place. There's already a law, but people want another one...

By "null and void" do you mean "useless"??? Not necessarily...

It's being used to add charges to minor's and felon's (CCing particularly) who happen to do their dirty work in a GFSZ's. The cases I read typically involve drugs, minors and concealment. RS 14:95.2 just adds an additional charge... I see it as an extra chip on the side of the prosecution when a plea agreement becomes prudent to the defendant.

 

[estcrh]

My apologies for not being clear... again it's difficult to be clear about law that is NOT...

Keep in mind that speaking of several points at once can cause confusion.

We must first decide whether we're speaking of state law or federal law. Second we must discern between statues relevant to OC versus CC... Since this is OCDO, I will stick to laws relevant to OCing.

Let's start with state law concerning OCing...
Because of 14:95.2 C(5), OCing has ALWAYS been legal in a STATE DEFINED GFSZ... and still is...

Conversely, federal law usurps our state constitutionally protected rights and provides NO exception for OCing in ITS GFSZ legislation. Therefore according to federal law, OCing is illegal in a federally defined GFSZ. Here is THE OCer's problem. See 18 USC 922q.

Short summery.... State law says legal... fed law says illegal.


At this point I think I've answered estrch's question... However, here's where things get complicated.


Let's move to a hybrid situation... where the laws of CCing may affect an OCer... Here's the complicated part... because it involves a more complicated mix of federal law and state law.

RS 14:95.2 provides an exception for OCing... but federal law, 18 USC 922q does not, but fed law DOES provide an exception for POSSESSION and the La. CC permit meets this requirement.

Also the fed law does not differentiate between OCing and CCing so if it's requirements are met for one, then they are met for both. Soooooo....

The final mind twister is this... If the CC permit meets this part 922q(2)...

(B) Subparagraph (A) does not apply to the possession of a firearm—
SNIP
(ii) if the individual POSSESSING the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;

AND it HAS met this requirement for quite some time... then one MAY OC in a state OR federally defined GFSZ PROVIDED one has the CC permit to satisfy the fed possession requirement... AND this HAS been the case prior to ACT 925.

Thanks George, I understand what your point is.

 

[wrightme]

You're statement about a "self-nullifying" statute is VERY reasonable. However, the statute was enacted due to political pressure.... as many are... Politics tends to warp the "intentions" of our representatives. The actual intention(it appears to me) was to come down on those that shouldn't possess firearms in the first place. There's already a law, but people want another one...

So, can you link to an authoritative source that supports your opinion or not?

By "null and void" do you mean "useless"??? Not necessarily...

I will clarify my statement to only be about the "carrying of a weapon in a GFSZ" only. In fact, that is exactly what I stated. Once that statute was engrossed, the portion about "carrying of a weapon in a GFSZ" would have nullified itself, if it is as you claim. Again, can you cite an authoritative source that supports your claim or not?

It's being used to add charges to minor's and felon's (CCing particularly) who happen to do their dirty work in a GFSZ's. The cases I read typically involve drugs, minors and concealment. RS 14:95.2 just adds an additional charge... I see it as an extra chip on the side of the prosecution when a plea agreement becomes prudent to the defendant.

Yet the portion forbidding weapons in the GFSZ does not operate IF your claim is correct. That portion is not necessary in the case of criminal activity, so IF it is as you claim, why is it there? Once again, can you cite an authoritative source that supports your claim or not?

 

[georg jetson]

So, can you link to an authoritative source that supports your opinion or not?

I will clarify my statement to only be about the "carrying of a weapon in a GFSZ" only. In fact, that is exactly what I stated. Once that statute was engrossed, the portion about "carrying of a weapon in a GFSZ" would have nullified itself, if it is as you claim. Again, can you cite an authoritative source that supports your claim or not?

Yet the portion forbidding weapons in the GFSZ does not operate IF your claim is correct. That portion is not necessary in the case of criminal activity, so IF it is as you claim, why is it there? Once again, can you cite an authoritative source that supports your claim or not?

Ok... as I've stated before, I can't find any cases disposed that are relevant to our discussion. In the strict sense there is NO authoritative source to support EITHER of our positions on this matter. (That I know of...)

To answer your questions, I revert to a plain reading of the law... It did not nullify itself because it applies to the carrying of weapons in constitutionally UNPROTECTED ways. This would apply to felons, under age possession, concealed possession and until recently licensed concealed possession.

Using La. RS 14:3 we see how any judge MUST interpret any part of La. criminal code.
http://www.legis.state.la.us/lss/lss.asp?doc=78396
§3. Interpretation

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

In light of 14:3 it can be plainly seen that C(5) will be given "genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision."

I'm confident in my position to the point that IF I had a CC permit, I would carry OPENLY in GFSZ's. However, I can see where readers may find I'm a bit TOO confident so... they should probably make a more cautious interpretation of 14:95.2

Also, you can reference La. Attorney General Opinion 94-0131.
http://www.ag.state.la.us/Opinions.aspx?articleID=0&catID=6
Though this is JUST an AG opinion and it's not specifically relevant to 14:95.2 C(5), it does give a good example of how an attorney in La. would go about interpreting a statute when no authoritative cases exist.

If anyone thinks my position is wrong, then all they need to do is draw up a petition requesting a declaratory judgment and injunction, file it in a court of competent jurisdiction, and see what a judge says... What I THINK would happen next is that the named respondents would file for summary judgment which the judge would grant because there is NO issue here. In other words, failure to state a claim for which relief may be granted.

Hell... I might do this myself... I could use the practice.

 

[wrightme]

To answer your questions, I revert to a plain reading of the law... It did not nullify itself because it applies to the carrying of weapons in constitutionally UNPROTECTED ways. This would apply to felons, under age possession, concealed possession and until recently licensed concealed possession.

Only in part. I refer to the FIRST portion:

§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.

"Carrying a firearm......on school property....is unlawful."

That specifically calls out what you refer to as "constitutionally protected activity," yet the statute clearly makes this an unlawful act.

Section "A" does not speak to "constitutionally unprotected" specifics.

 

[turbodog]

Only in part. I refer to the FIRST portion:

Originally Posted by georg jetson
§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.

"Carrying a firearm......on school property....is unlawful."

That specifically calls out what you refer to as "constitutionally protected activity," yet the statute clearly makes this an unlawful act.

This is what I was referring to when I said the law was contradictory and that the legislators had ignored the state constitution. They banned the possession and carry of a firearm in the GFSZ. Isn't the keeping and bearing of arms constitutionally protected? Apparently not in a GFSZ. In a zone, the only way keeping and bearing is protected is in a limited set of circumstances. In a residence, on private property and inside a vehicle. That's it, the only places your right is valid in a zone. Suspended otherwise. How is it, if the state has no constitutionally provided authority to regulate the carry of arms except concealed, can they lay down a blanket ban on possession and carry of a firearm openly? The language in the GFSZ law, as quoted above, clearly shows they did.

Sorry Georg, I just can't see the logic in your argument that OC has always been legal in a GFSZ. Though I also think the medium of written messages does not do justice to your argument, my understanding of it or my own responses in reply. One of these days we're just gonna have to meet up and talk this through.

 

[XD-GEM]

Sorry Georg, I just can't see the logic in your argument that OC has always been legal in a GFSZ. Though I also think the medium of written messages does not do justice to your argument, my understanding of it or my own responses in reply. One of these days we're just gonna have to meet up and talk this through.

turbodog, what he's referring to is something that might be called the "hierarchy of laws," - a term I am making up myself as an explanatory device.

Dealing strictly with the state aspect and leaving aside the federal for the moment, the State Constitution stands at the top of the hierarchy. No law that is passed under the constitution can trump it. Therefore, as afar as state law is concerned, the open-carry aspect of a GFSZ has always been legal by the constitution trumping the law.

Unfortunately, our system of jurisprudence has grown in a way that demands a trial to settle such an issue, even if, on it's face, it should be obvious. Since it would appear that no one has challenged the law, either by asking for a declaratory judgement or by getting arrested for violating the law and using constitutionality as a defense, the law stands; and LEO may try to enforce any law that is on the books.

Now, on the federal side, until the Heller opinion from the US Supreme Court, the 2A was not officially recognozed as an individual right which the federal government could not infringe. Add to that the McDonald decision that the 2A applies to the states as well as the federal government, and the whole GFSZ argument gets upended.

Now, all of the state and federal GFSZ laws may be called into question on constitutional grounds. The difficulty will be that both Heller and McDonald majority opinions suggested that schools were a place in which it would be reasonable to restrict the RKBA. The phrasing was "in" schools, however, not "near" schools. So I think that a challenge to the 1000 foot exclusionary zone would win based on that, but a challenge to possesion on campus would fail.

Just my opinion, of course.

 

[georg jetson]

This is what I was referring to when I said the law was contradictory and that the legislators had ignored the state constitution. They banned the possession and carry of a firearm in the GFSZ. Isn't the keeping and bearing of arms constitutionally protected? Apparently not in a GFSZ. In a zone, the only way keeping and bearing is protected is in a limited set of circumstances. In a residence, on private property and inside a vehicle. That's it, the only places your right is valid in a zone. Suspended otherwise. How is it, if the state has no constitutionally provided authority to regulate the carry of arms except concealed, can they lay down a blanket ban on possession and carry of a firearm openly? The language in the GFSZ law, as quoted above, clearly shows they did.

Sorry Georg, I just can't see the logic in your argument that OC has always been legal in a GFSZ. Though I also think the medium of written messages does not do justice to your argument, my understanding of it or my own responses in reply. One of these days we're just gonna have to meet up and talk this through.

No problem Tdog… If you don’t understand my logic then that simply means that I’ve done a poor job of explaining myself. Using the written word is one of the MOST important aspects of law. If I’m going to challenge this issue in court then I MUST learn to do so with the written word in such a manner that the judge has NO questions when he’s done reading my brief.

Let me ax you…
Do you have the same concern as wrightme? That the words "Carrying a firearm......on school property....is unlawful." includes constitutionally protected activity?

 

[georg jetson]

turbodog, what he's referring to is something that might be called the "hierarchy of laws," - a term I am making up myself as an explanatory device.

Dealing strictly with the state aspect and leaving aside the federal for the moment, the State Constitution stands at the top of the hierarchy. No law that is passed under the constitution can trump it. Therefore, as afar as state law is concerned, the open-carry aspect of a GFSZ has always been legal by the constitution trumping the law.

Unfortunately, our system of jurisprudence has grown in a way that demands a trial to settle such an issue, even if, on it's face, it should be obvious. Since it would appear that no one has challenged the law, either by asking for a declaratory judgement or by getting arrested for violating the law and using constitutionality as a defense, the law stands; and LEO may try to enforce any law that is on the books.

Now, on the federal side, until the Heller opinion from the US Supreme Court, the 2A was not officially recognozed as an individual right which the federal government could not infringe. Add to that the McDonald decision that the 2A applies to the states as well as the federal government, and the whole GFSZ argument gets upended.

Now, all of the state and federal GFSZ laws may be called into question on constitutional grounds. The difficulty will be that both Heller and McDonald majority opinions suggested that schools were a place in which it would be reasonable to restrict the RKBA. The phrasing was "in" schools, however, not "near" schools. So I think that a challenge to the 1000 foot exclusionary zone would win based on that, but a challenge to possesion on campus would fail.

Just my opinion, of course.

The hierarchy issue is part of it. In a republic, a constitution is enacted by the people whereby the legal authority of that constitution comes form the consent of the people. From there, statutes are codified receiving their legal authority from the constitution and so forth...

I think a major source of confusion with the intentions of 14:95.2 can be squared away by asking 2 questions...

1. If something is constitutionally protected then it it lawfull?
2. If something is lawfull then is it constitutionally protect?

 

[DZelenka]

I don't see what the problem is. The statute is pretty clear to me.

§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.


C. The provisions of this Section shall not apply to:

(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.

If OC is a "constitutionally protected activity" which we all agree it is (as does the LA attorney general), then R.S. 14:95.2 does not apply. Period. End of discussion.

 

[DZelenka]

To answer your questions, I revert to a plain reading of the law... It did not nullify itself because it applies to the carrying of weapons in constitutionally UNPROTECTED ways. This would apply to felons, under age possession, concealed possession and until recently licensed concealed possession.

This is how I interpret it. I don't think this is how the legislature intended it because most people, including legislators, don't know that OC is legal and is a constitutionally protected activity.

 

[georg jetson]

I don't see what the problem is. The statute is pretty clear to me.

§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.


C. The provisions of this Section shall not apply to:

(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.

If OC is a "constitutionally protected activity" which we all agree it is (as does the LA attorney general), then R.S. 14:95.2 does not apply. Period. End of discussion.

I tried the simple approach Dan... it didn't work...

 

[georg jetson]

This is how I interpret it. I don't think this is how the legislature intended it because most people, including legislators, don't know that OC is legal and is a constitutionally protected activity.

I agree, I wasn't trying to show intent... I was showing that there are ways to carry that are not constitutionally protected.

 

[wrightme]

I don't see what the problem is. The statute is pretty clear to me.

§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.


C. The provisions of this Section shall not apply to:

(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.

If OC is a "constitutionally protected activity" which we all agree it is (as does the LA attorney general), then R.S. 14:95.2 does not apply. Period. End of discussion.

The "problem" is that you and gj are basically stating that the operation of law would be to nullify it. I do not agree that this is the case. And until there IS a case, LE is free to enforce item A.

 

[estcrh]

I don't see what the problem is. The statute is pretty clear to me.

§95.2. Carrying a firearm, or dangerous weapon, by a student or nonstudent on school property, at school-sponsored functions or firearm-free zone

A. Carrying a firearm, or dangerous weapon as defined in R.S. 14:2, by a student or nonstudent on school property, at a school sponsored function, or in a firearm-free zone is unlawful and shall be defined as possession of any firearm or dangerous weapon, on one's person, at any time while on a school campus, on school transportation, or at any school sponsored function in a specific designated area including but not limited to athletic competitions, dances, parties, or any extracurricular activities, or within one thousand feet of any school campus.


C. The provisions of this Section shall not apply to:

(5) Any constitutionally protected activity which cannot be regulated by the state, such as a firearm contained entirely within a motor vehicle.

If OC is a "constitutionally protected activity" which we all agree it is (as does the LA attorney general), then R.S. 14:95.2 does not apply. Period. End of discussion.

Ok, so much for state law, if you are caught open carrying in La. in a school zone then you should be able to argue this in court and win (hopefully!) but then there are those pesky federal laws hovering above the state law...isnt that the bigger problem that now needs to be dealt with..I mean that is were the eroding of our real right to protect ourselves started? Gun free zones in EVERY city and town that do not have to be clearly marked or marked at all and the people who are trapped living in these zones or who just enter them with out knowing are made into criminals. Were is the attempt from ANY politician from either side to correct this horrible and inhumane law?

 

[georg jetson]

Here we go 'round in circles

Ok, so much for state law, if you are caught open carrying in La. in a school zone then you should be able to argue this in court and win (hopefully!) but then there are those pesky federal laws hovering above the state law...isnt that the bigger problem that now needs to be dealt with..I mean that is were the eroding of our real right to protect ourselves started? Gun free zones in EVERY city and town that do not have to be clearly marked or marked at all and the people who are trapped living in these zones or who just enter them with out knowing are made into criminals. Were is the attempt from ANY politician from either side to correct this horrible and inhumane law?

See posts 5 and 21... then follow the comments back to this point...

repeat.

Edit - post 10 is a good one too...

 

[georg jetson]

OCing may have been legal this whole time... federally and state... with some caveats

This is how I interpret it. I don't think this is how the legislature intended it because most people, including legislators, don't know that OC is legal and is a constitutionally protected activity.

Dan,

Since the intention of this thread was to acknowledge some firearms victories in the state legislature for CC permit holders, many posters here are trying to tie relevance to OCing... since that's what OCDO is all about... makes sense to me.

Here's a summary of points.

1. IF OCing in a GFSZ has always been protected by the LA. Const AND by the provision reiterating this in 14:95.2
2. AND IF OCing has always been ILLEGAL in a GFSZ at the federal level because 18 USC 922q B(ii) requires a state issued licensed for firearm possession.
3. AND If the CC permit fulfills the requirement of the fed law... and IF it has ALWAYS fulfilled it on the fed level as state law was the only thing barring CC cary in GFSZs
4. THEN OCing in a GFSZ has always been lawful provided the OCer had a CC permit that would satisfy the "possession" requirement of the fed law...

If this is the case then it is relevant to the OCer... but, maybe not the ideal situation because of the permit needed to fulfill fed law...

Thoughts...

 

[DZelenka]

Dan,

Since the intention of this thread was to acknowledge some firearms victories in the state legislature for CC permit holders, many posters here are trying to tie relevance to OCing... since that's what OCDO is all about... makes sense to me.

Here's a summary of points.

1. IF OCing in a GFSZ has always been protected by the LA. Const AND by the provision reiterating this in 14:95.2
2. AND IF OCing has always been ILLEGAL in a GFSZ at the federal level because 18 USC 922q B(ii) requires a state issued licensed for firearm possession.
3. AND If the CC permit fulfills the requirement of the fed law... and IF it has ALWAYS fulfilled it on the fed level as state law was the only thing barring CC cary in GFSZs
4. THEN OCing in a GFSZ has always been lawful provided the OCer had a CC permit that would satisfy the "possession" requirement of the fed law...

If this is the case then it is relevant to the OCer... but, maybe not the ideal situation because of the permit needed to fulfill fed law...

Thoughts...

I would agree with the above, but would say to just cover it if you have a CHP. By the way, our CC statute provides a concealed handgun permit so carrying a rifle in a school zone may not be legal even with a permit under federal law. - just thought about that, haven't reviewed it.

 

[AmosMoses]

Can a state/local LEO enforce federal law?