Why do we need new laws for open carry?

[Slack]

PART 1

I keep reading the the Oklahoma State statutes and keep coming to the same logical conclusion: Open carry is lawful in Oklahoma as long as your purpose is "legitimate" and you do not carry in places specifically prohibited.

I know there are some problems with this line of thought...

1. Logic does not drive the law
2. I am not a lawyer
3. I can't afford to "test" the laws

So according to 21 O.S. § 1272, you are not allowed to carry any weapon concealed or unconcealed anywhere except for the enumerated exceptions:

Title 21. Crimes and Punishments
Chapter 53 - Manufacture, Sale, and Wearing of Weapons
Section 1272 - Unlawful Carry

A. It shall be unlawful for any person to carry upon or about his or her person, or in a purse or other container belonging to the person, any pistol, revolver, shotgun or rifle whether loaded or unloaded or any dagger, bowie knife, dirk knife, switchblade knife, spring-type knife, sword cane, knife having a blade which opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife, blackjack, loaded cane, billy, hand chain, metal knuckles, or any other offensive weapon, whether such weapon be concealed or unconcealed, except this section shall not prohibit:

1. The proper use of guns and knives for hunting, fishing, educational or recreational purposes;

2. The carrying or use of weapons in a manner otherwise permitted by statute or authorized by the Oklahoma Self-Defense Act;

3. The carrying, possession and use of any weapon by a peace officer or other person authorized by law to carry a weapon in the performance of official duties and in compliance with the rules of the employing agency;

4. The carrying or use of weapons in a courthouse by a district judge, associate district judge or special district judge within this state, who is in possession of a valid concealed handgun license issued pursuant to the provisions of the Oklahoma Self-Defense Act and whose name appears on a list maintained by the Administrative Director of the Courts; or

5. The carrying and use of firearms and other weapons provided in this subsection when used for the purpose of living history reenactment. For purposes of this paragraph, "living history reenactment" means depiction of historical characters, scenes, historical life or events for entertainment, education, or historical documentation through the wearing or use of period, historical, antique or vintage clothing, accessories, firearms, weapons, and other implements of the historical period.

B. Any person convicted of violating the foregoing provision shall be guilty of a misdemeanor punishable as provided in Section 1276 of this title.

So the bold section above allows other statutes and the SDA (more statutes?) to be an exception to the unlawful carrying of a weapon.

Most everyone is familiar with the exception that allows the carrying of a concealed handgun and transporting loaded rifles and shotguns as provided by the SDA, aka 21 O.S. § 1290. That would be one major exception to 21 O.S. § 1272.

We are allowed an exception to transport unloaded weapons in our vehicles in accordance according to 21 O.S. § 1289.7.

And the primary purpose of this posting, 21 O.S. § 1289.6 enumerates the conditions of lawful (open) carrying of shotguns, rifles, and pistols loaded and unloaded:

Title 21. Crimes and Punishments
Chapter 53 - Manufacture, Sale, and Wearing of Weapons
Oklahoma Firearms Act of 1971
Section 1289.6 - Lawful Carrying of Firearms

A. A person shall be permitted to carry loaded and unloaded shotguns, rifles and pistols, open and not concealed and without a handgun license as authorized by the Oklahoma Self-Defense Act, Sections 1 through 25 of this act, pursuant to the following conditions:

1. When hunting animals or fowl;

2. During competition in or practicing in a safety or hunter safety class, target shooting, skeet, trap or other recognized sporting events;

3. During participation in or in preparation for a military function of the state military forces to be defined as the Oklahoma Army or Air National Guard, Federal Military Reserve and active military forces;

4. During participation in or in preparation for a recognized police function of either a municipal, county or state government as functioning police officials;

5. During a practice for or a performance for entertainment purposes; or

6. For any legitimate purpose not in violation of the Oklahoma Firearms Act of 1971, Sections 1289.1 through 1289.17 of this title or any legislative enactment regarding the use, ownership and control of firearms.


B. A person shall be permitted to carry unloaded shotguns, rifles and pistols, open and not concealed and without a handgun license as authorized by the Oklahoma Self-Defense Act pursuant to the following conditions:

1. When going to or from the person's private residence or vehicle or a vehicle in which the person is riding as a passenger to a place designated or authorized for firearms repairs or reconditioning, or for firearms trade, sale, or barter, or gunsmith, or hunting animals or fowl, or hunter safety course, or target shooting, or skeet or trap shooting or any recognized firearms activity or event and while in such places; or

2. For any legitimate purpose not in violation of the Oklahoma Firearms Act of 1971, Sections 1289.1 through 1289.17 of this title.

C. The provisions of this section shall not be construed to prohibit educational or recreational activities, exhibitions, displays or shows involving the use or display of rifles, shotguns or pistols or other weapons if the activity is approved by the property owner and sponsor of the activity.

So the above bold item allows the open carry of loaded shotguns, rifles and pistols for "any legitimate purpose" not in violation to any other law. Wow! what a broad statement. So it seems key to define "any legitimate purpose". IMHO, anything that is not a violation of the law would be considered a "legitimate purpose".

CONTINUED...

 

[Slack]

PART 2

If we want to take a different tack, we could identify a specific purpose and determine if it is indeed "legitimate".

So I propose there are several legitimate purposes, but the purpose I choose to pursue is open carry of a loaded shotgun, rifle, or pistol for the purpose of self defense.

It would seem obvious to talk about our US Constitution, 2nd Amendment rights to keep and bear arms, but I would rather defer to the Oklahoma State Constitution which more strongly enforces our rights:

Oklahoma Constitution
Article 2 - Bill Of Rights
Section Article 2 section 26 - Bearing arms - Carrying weapons

§ 26. Bearing arms - Carrying weapons.

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; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.

It seems quite clear, that the use of arms for personal protection is "legitimate" according to our state constitution.

Further more 21 O.S. § 1289.2 support attempts to support this:

Title 21. Crimes and Punishments
Chapter 53 - Manufacture, Sale, and Wearing of Weapons
Oklahoma Firearms Act of 1971
Section 1289.2 - Legislative Findings

The Legislature finds as a matter of public policy and fact that it is necessary for the safe and lawful use of firearms to curb and prevent crime wherein weapons are used by enacting legislation having the purpose of controlling the use of firearms, and of prevention of their use, without unnecessarily denying their lawful use in defense of life, home and property, and their use by the United States or state military organizations and as may otherwise be provided by law, including their use and transportation for lawful purposes.

And from the SDA, 21 O.S. § 1290.25:

Title 21. Crimes and Punishments
Chapter 53 - Manufacture, Sale, and Wearing of Weapons
Oklahoma Self-Defense Act
Section 1290.25 - Legislative Intent

LEGISLATIVE INTENT

The Legislature finds as a matter of public policy and fact that it is necessary to provide statewide uniform standards for issuing licenses to carry concealed handguns for lawful self-defense and self-protection, and further finds it necessary to occupy the field of regulation of the bearing of concealed handguns to ensure that no honest, law-abiding citizen who qualifies pursuant to the provisions of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, is subjectively or arbitrarily denied his or her rights. The Legislature does not delegate to the Oklahoma State Bureau of Investigation any authority to regulate or restrict the issuing of licenses except as provided by the provisions of this act. Subjective or arbitrary actions or rules which encumber the issuing process by placing burdens on the applicant beyond those requirements detailed in the provisions of the Oklahoma Self-Defense Act or which create restrictions beyond those specified in this act are deemed to be in conflict with the intent of this act and are hereby prohibited. The Oklahoma Self-Defense Act shall be liberally construed to carry out the constitutional right to bear arms for self-defense and self-protection. The provisions of the Oklahoma Self-Defense Act are cumulative to existing rights to bear arms and nothing in Section 1290.1 et seq. of this title shall impair or diminish those rights.

However, the conditions that mandate the administrative actions of license denial, suspension, revocation or an administrative fine are intended to protect the health, safety and public welfare of the citizens of this state. The restricting conditions specified in the Oklahoma Self-Defense Act generally involve the criminal history, mental state, alcohol or substance abuse of the applicant or licensee, a hazard of domestic violence, a danger to police officers, or the ability of the Oklahoma State Bureau of Investigation to properly administer the Oklahoma Self-Defense Act. The restricting conditions that establish a risk of injury or harm to the public are tailored to reduce the risks to the benefit of the citizens of this state.

So based upon all of the above it seems that Open Carry for the purpose of Self Defense should be an appropriate exception to 21 O.S. § 1272 per 21 O.S. § 1289.6 (A6).

Of course there are plenty of statutes that keep this from applying universally, since felons aren't allowed to carry weapons, weapons are unlawful in certain locations and situations. Primarily the same places it would be unlawful for conceal carry.

What are your thoughts?

 

[Poke78]

I understand your logic and can support your reasoning until it requires me to be a "test case" where I have to get an expensive lawyer to keep me out of jail. The recent open carry confrontation in Madison WI comes to mind. It always comes down to what the officer on the scene thinks he/she can pull out his shiny bracelets for while giving you a lift to the local graybar hotel.

You may beat the rap but you won't beat the ride or the opportunity to expend significant sums for a lawyer.

 

[vvvvvvv]

So the above bold item allows the open carry of loaded shotguns, rifles and pistols for "any legitimate purpose" not in violation to any other law. Wow! what a broad statement. So it seems key to define "any legitimate purpose". IMHO, anything that is not a violation of the law would be considered a "legitimate purpose".

CONTINUED...

Pursuant to 21 O.S. § 1289.13A, it would be illegal to transport a loaded firearm via motor vehicle without a permit, so it would be very difficult to get from place to place.

Additionally, the term "legitimate" throws a monkey wrench into the whole deal.

Pierce v. State (1929 OK CR 91, 42 Okl.Cr. 272, 275 P. 393) held that "protection from attack and robbery [is] no defense in prosecution for carrying weapon." On page 277, the Court also noted that the State Constitution does not offer a defense against such offense and explicitly allows the regulation by statute of that right.

Additionally, only 21 O.S. § 1290 is part of the Oklahoma Self Defense Act. The part bolded in § 1290.25 does not apply to § 1272 or § 1289.

 

[tm8634]

It always comes down to what the officer on the scene thinks he/she can pull out his shiny bracelets for while giving you a lift to the local graybar hotel.

i agree with you P78, but thats the case with any law, interpretation...

 

[Slack]

Pursuant to 21 O.S. § 1289.13A, it would be illegal to transport a loaded firearm via motor vehicle without a permit, so it would be very difficult to get from place to place.

It would not be difficult to get from place to place, but it would require unloading for transportation (notwithstanding SDA). Basically my interpretation changes nothing about the transporting of weapons. Also § 1289.6 seems to be more restrictive on carrying unloaded guns than loaded guns! So that may actually require you to be sure to reload before you get out of the vehicle

Pierce v. State (1929 OK CR 91, 42 Okl.Cr. 272, 275 P. 393)
....

I will respond to this later. I see this brought up quite a bit, but I wonder how truly relevant it is to today. I know that it is recognized case law, but the relevant laws have changed significantly since 1929.

Additionally, only 21 O.S. § 1290 is part of the Oklahoma Self Defense Act. The part bolded in § 1290.25 does not apply to § 1272 or § 1289.

I agree but, § 1272 or § 1289 both reference § 1290 and every time I read an AG's opinion it seems to get into legislative intent. It seems that it would be relevant in the discussion of Pierce v. State.

Thanks for the response Veggie and Poke 78

 

[TerryMiller]

From your second post:

"Oklahoma Constitution
Article 2 - Bill Of Rights
Section Article 2 section 26 - Bearing arms - Carrying weapons

§ 26. Bearing arms - Carrying weapons.

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; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."


There is always that exception that gets in the way.
.

 

[Slack]

From your second post:

"Oklahoma Constitution
Article 2 - Bill Of Rights
Section Article 2 section 26 - Bearing arms - Carrying weapons

§ 26. Bearing arms - Carrying weapons.

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; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."


There is always that exception that gets in the way.
.

The purpose of quoting of the state constitution was to support that "self defense" was a legitimate purpose to carry a pistol, rifle, or shotgun. I am trying to work within the Legislative statutes that are regulating our carrying of weapons. It doesn't say we can't carry weapons, it says that it can be regulated.

But that "exception" is exactly what we are trying to understand. The provisions of 21 O.S. § 1289.6 give us some specific conditions when we can carry.

 

[vvvvvvv]

Since I didn't feel like retyping....

The law has not changed to the contrary of those cases, though.

Here's the OSCN link to Pierce v. State (1929) http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=38162

They address what was then Section 1992, C.O.S. 1921, which stated "It shall be unlawful for any person in the state of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided..."

The wording here is very similar to 21 O.S. § 1272. It is similar enough to show that the former is the origin of the latter prior to the reorganization of Oklahoma laws. Byford v. State (1949) makes this clear in that it specifically addresses 21 O.S. § 1272 and refers to Pierce as construing a conclusive interpretation of the statute. Gilio v. State (2001) further held that Pierce applied to firearms outside the confines of the home.

So in fact, there is caselaw as recent as 2001 that addresses the validity of the Pierce ruling in light of modern laws, including the Oklahoma Self Defense Act.

 

[inactive]

Since I didn't feel like retyping....

This sums up the relevant case law that interpreted how the statutes are to be applied, and I don't think it can be said any better.

Though I do admire what the OP is trying to accomplish here, I think the new legislation route is necessary.