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  • Hot: Kansas 2011 attorney general opinion - open & concealed carry!!

    March 11, 2011 Kansas Attorney General Derek Schmidt issued an opinion that concealed carry permit holders can legally open carry a firearm with state preemption of local city ordinances and county resolutions. In addition to preemption, cities and counties cannot make open carry laws that require firearms to be unloaded while carrying and those municipalities may only regulate unlicensed open carry not licensed permit holders on property open to the public.

    A grass roots organization, Open Carry Kansas, requested the opinion through Kansas Legislator, Representative Lana Gordon, District 52 of Topeka.

    Open Carry Kansas appreciates the support of the Kansas State Rifle Association and the mentorship of President Patricia Stoneking in helping make this opinion possible.

    The opinion reads as follows:


    March 11, 2011

    ATTORNEY GENERAL OPINION NO. 2011- 006

    The Honorable Lana Gordon
    State Representative, 52nd District
    300 SW 10th Avenue
    Topeka, Kansas 66612

    Re: Cities and Municipalities—Miscellaneous Provisions—Firearms and
    Ammunition; Regulation by City or County, Limitations; Openly Carrying a
    Loaded Firearm.

    Synopsis: A city or county may regulate the manner of openly carrying a loaded
    firearm on the person of a concealed carry permit holder. A city or county
    may regulate the manner of openly carrying a loaded firearm on the
    person of a non-holder of a concealed carry permit holder. A city or
    county may regulate the manner of openly carrying a loaded firearm in the
    immediate control of a non-holder of a concealed carry permit holder,
    whether on public or private property. A city or county may not regulate
    the manner of openly carrying a loaded firearm in the immediate control of
    a holder of a concealed carry permit when such holder is on public
    property. Cited herein: K.S.A. 2010 Supp. 12-16,124.

    * * *
    Dear Representative Gordon:
    As Representative for the 52nd District, you ask for direction and clarification concerning
    K.S.A. 2010 Supp. 12-16,124(b)(2) that provides:

    Nothing in this section shall: . . . prohibit a city or county from regulating the
    manner of openly carrying a loaded firearm on one's person; or in the immediate
    control of a person, not licensed under the personal and family protection act
    while on property open to the public;


    Representative Lana Gordon
    Page 2
    The italicized language in that provision was added to the statute during the 2007
    legislative session.1

    In general, courts will first look to the plain language of a statute to determine its
    meaning .2 From the plain language of this statutory provision, several elements of its
    meaning are clear. First, the overall purpose of this provision is to set forth an
    exception to the state’s general policy of pre-emption of local authority to regulate
    firearms. Second, the 2007 amendment to this statutory language clarifies the scope of
    that exception by narrowing it to allow cities and counties to regulate only the open carry
    of firearms, not the concealed carry of firearms. Third, the 2007 amendment further
    clarifies the scope of that exception by narrowing it to allow cities and counties to
    regulate only the open carry of loaded firearms, not unloaded firearms.

    Thus, it is clear that this provision of law preserves the authority of cities or counties to
    regulate the open carrying of loaded firearms but does not preserve cities or counties’
    ability to regulate the concealed carry of firearms or their ability to regulate the open
    carry of unloaded firearms.

    The remaining language in this statutory provision further qualifies the authority of cities
    and counties to regulate the open carrying of loaded firearms. However, the meaning of
    the remaining language is not apparent from a plain reading of it. Its ambiguity results
    from two items of punctuation: The placement of the semicolon in this provision has
    created a sentence fragment that has no independent meaning, and the placement of
    the comma in this provision results in uncertainty about what word or words the phrase
    after the comma is intended to modify.

    Thus, the plain language of this statutory provision reveals some but not all of the law’s
    meaning. When the plain language of a statute does not reveal the law’s meaning,
    courts then will look behind the statutory language and attempt to ascertain the intent of
    the legislature in enacting the ambiguous statutory language.3

    The legislative history of this provision is instructive. When introduced, the 2007 bill
    initially deleted all exceptions to the prohibition against cities and counties regulating the
    purchase, transfer, ownership, storage or transporting of firearms or ammunitions.4
    That suggests that the original intent of the 2007 amendment was to create uniformity in
    the state law to advance the policy of preemption of local authority to regulate firearms.

    After the initial bill was introduced, spirited testimony was presented before the House
    Federal and State Affairs Committee by proponents and opponents of the bill.5 Much of

    1 L. 2007, ch. 166, § 1.
    2 Tompkins v. Bise, 259 Kan. 39, 43 (1996).
    3 State v. Raschke, 289 Kan. 911, 914 (2009).
    4 2007 HB 2528.
    5 Minutes, House Federal and State Affairs Committee, February 20, 2007.


    Representative Lana Gordon
    Page 3

    the testimony appears to center on a debate about the merits or demerits of a policy of
    preemption. Following amendments made by this Committee and the House Committee
    of the Whole, the bill arrived in the Senate in substantially the same form that now
    appears in K.S.A. 2010 Supp. 12-16,124(b)(2).

    Thus, it would seem that reading the ambiguous language of this statutory provision in
    the manner that results in the greatest preemption of local control over the conduct of
    concealed carry permit holders would be the interpretation most consistent with the
    apparent legislative intent.6

    To that end, it is necessary to analyze the variables in the remaining language of the
    statutory provision. There are two variables remaining in the language: Its application
    to concealed carry permit holders versus its application to non-permit holders and its
    application to persons openly carrying a firearm on their person (whether on public or
    private property) versus its application to persons openly carrying a firearm in their
    immediate control while on property open to the public.

    Considering each possible combination of those variables results in four factual
    circumstances in which this provision may be applied. We consider those below and, in
    each case, offer our conclusion as to the most likely interpretation of the statutory
    provision in light of the language of the statute and the overall legislative intent of
    promoting preemption.

    First, regulation of the manner of openly carrying a loaded firearm on the person of a
    concealed carry permit holder. We conclude that a city or county may regulate because
    the language of the statute is clear and unambiguous. The pertinent language would be
    read: “Nothing in this section shall: . . . prohibit a city or county from regulating the
    manner of openly carrying a loaded firearm on one's person…” This language does not
    distinguish between a holder of a concealed carry permit and a non-holder.

    Second, regulation of the manner of openly carrying a loaded firearm on the person of a
    non-holder of a concealed carry permit. We conclude that a city or county may regulate
    because the language of the statute is clear and unambiguous. The pertinent language
    would be read: “Nothing in this section shall: . . . prohibit a city or county from
    regulating the manner of openly carrying a loaded firearm on one's person…” This
    language does not distinguish between a holder of a concealed carry permit and a nonholder.

    6 See testimony of Sen. Phillip Journey, Minutes, House Federal and State Affairs Committee, February
    20, 2007 ("Cities may also prohibit non-licensees from carrying concealed or loaded unconcealed
    firearms on their persons.") and testimony of Ed Klumpp, Kansas Association of Chiefs of Police, Minutes,
    House Federal and State Affairs Committee, February 20, 2007 ("Our goal in working with the House
    members and others on this bill has been two fold. First, we need to retain the ability for cities to regulate
    persons not licensed under the act relating to firearms. . . .Second we wanted to clarify legislative intent to
    minimize any misunderstanding about what cities and counties can and can't do relating to concealed
    carry and other firearm issues addressed in this bill.")


    Representative Lana Gordon
    Page 4

    Third, regulation of the manner of openly carrying a loaded firearm in the immediate
    control of a non-holder of a concealed carry permit holder (whether on public or private
    property). We conclude that a city or county may regulate because the most
    reasonable manner of reading the statute to give meaning to its final, grammatically
    challenged phrase, is as follows: “Nothing in this section shall: . . . prohibit a city or
    county from regulating the manner of openly carrying a loaded firearm … in the
    immediate control of a person[,] not licensed under the personal and family protection
    act while on property open to the public[;]”

    Fourth, regulation of the manner of openly carrying a loaded firearm in the immediate
    control of a holder of a concealed carry permit when such holder is on public property.
    We conclude that a city or county may not regulate. The statute is silent on this factual
    circumstance. Therefore, this circumstance does not give rise to an exception to the
    general rule of pre-emption of local authority. This interpretation is consistent with the
    overall legislative intent of the 2007 amendments to this statute.

    While we believe that the above analysis and conclusions are the interpretation of the
    statute that most nearly reflect the intent of the legislature, the ambiguity in the
    language itself does tend to render difficult the sort of “clear direction and precise
    clarification” you requested with respect to K.S.A. 2010 Supp. 12-16,124(b)(2). Should
    you wish to proceed with legislative clarification through a further amendment to this
    statute, legal staff at my office would be at your service.

    Sincerely,


    DEREK SCHMIDT
    ATTORNEY GENERAL

    DS:AEA:ke
    "There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights."- Marine General Smedley Butler.
    "For those who fight for it life has a special flavor the protected never know" By Unknown Marine Battle Khe Sahn Vietnam
    National Rifle Association Life Member * Kansas State Rifle Association Life Member * 2nd Amendment Foundation Life Member
    Students For Concealed Carry on Campus Life Member * Gun Owners of America

  • #2
    Earl, it was most assuredly my great pleasure to assist in obtaining this formal AG opinion. I am very proud of AG Schmidt for taking the time to discuss this issue with me and to agree to issue a formal opinion, most especially one of such thoughtful and careful evaluation of the section of statute in question. Who better than someone who had been part of the legislature at the time it was passed to understand the "intent" of the legislature when those laws were passed. It was also my great pleasure to help you in your endeavor to further open carry rights. I too would like to thank Representative Lana Gordon for requesting the opinion for us. She is a great supporter of the Second Amendment and her willingness to assist us will not go unnoticed by the KSRA.

    Kansans should be pleased with this most important decision. It is another step in the right direction in obtaining true Second Amendment freedom. Although there is still much work to do, every step is a victory and should not be slighted for its importance in the grand scheme of things.

    Thank you Earl, for all of your tenacious persistence and unwavering effort to further and promote open carry rights in Kansas. I'm proud to call you a fellow patriot.
    Immediate Past President & Lobbyist
    Kansas State Rifle Association (KSRA)
    Retired October 2015

    Comment


    • #3
      OK, maybe I'm thick, but doesn't this opinion basically reinforce the ability of a county or city to limit open carry by licensed CCers?

      First, regulation of the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. We conclude that a city or county may regulate because the language of the statute is clear and unambiguous.
      Maybe I'm missing something?
      Regardless, thanks to Patricia (and everyone else involved) for all your hard work over the years!
      Je Suis Charles Martel...

      Comment


      • #4
        Good job to all those involved!
        A great quote from 19th-century U.S. Senator Samuel Pomeroy:
        Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for … purposes [that are] vile, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.

        Comment


        • #5
          PDF file/text copy didn't get all fonts?

          I'm guessing that this post copied and pasted a PDF file. Some of the parts of the opinion are hard to understand because none of the italicized parts copied thye format.

          [PDF] 2011-006 | 3/11/2011 | Kansas Attorney General Opinion | Derek Schmidt

          File Format: PDF/Adobe Acrobat - View as HTML
          Mar 11, 2011 ... ATTORNEY GENERAL OPINION NO. 2011- 006. The Honorable Lana Gordon. State Representative, 52nd District. 300 SW 10th Avenue. Topeka, Kansas ...
          ksag.washburnlaw.edu/opinions/2011/2011-006.pdf
          The people think the Constitution protects their rights; But government sees it as an obstacle to be overcome.
          If your religion says suicide and murder are wrong; Aren't you doing both if you are not prepared to defend your life and the lives of others?
          I am not a lawyer, but I have personal opinions.

          Comment


          • #6
            I'm excited but have the same question as ksmedman
            Originally posted by Turbobuddha
            The eyes can lie. I've seen it. There are some truly sick people out there and if you look in their eyes, you'll see loving kindness, while their hands are making animal balloons with your intestine.
            Originally posted by Over40andA40
            I believe you need to revaluate your existence within our community here and perhaps disconnect yourself from those of us still living in the REAL world.

            Comment


            • #7
              Originally posted by marine0300 View Post
              Fourth, regulation of the manner of openly carrying a loaded firearm in the immediate
              control of a holder of a concealed carry permit when such holder is on public property.
              We conclude that a city or county may not regulate. The statute is silent on this factual
              circumstance. Therefore, this circumstance does not give rise to an exception to the
              general rule of pre-emption of local authority. This interpretation is consistent with the
              overall legislative intent of the 2007 amendments to this statute.

              While we believe that the above analysis and conclusions are the interpretation of the
              statute that most nearly reflect the intent of the legislature, the ambiguity in the
              language itself does tend to render difficult the sort of “clear direction and precise
              clarification” you requested with respect to K.S.A. 2010 Supp. 12-16,124(b)(2). Should
              you wish to proceed with legislative clarification through a further amendment to this
              statute, legal staff at my office would be at your service.

              Sincerely,


              DEREK SCHMIDT
              ATTORNEY GENERAL

              DS:AEA:ke
              Jamie, and Caleb, this might help.

              Patricia, am I correct in reading this to mean that local governments my not regulate OC by PFPA licesees?
              Taceant colloquia. Effugiat risus. Hic locus est ubi mors gaudet succurrere vitae.
              The Pale Horse available on Amazon for your digital reader.

              Comment


              • #8
                A city or
                county may regulate the manner of openly carrying a loaded firearm in the
                immediate control of a non-holder of a concealed carry permit holder,
                whether on public or private property.
                I hope that is not intetperated as personal, private property.

                Anyway, great news. Thanks to all. Hindsight is 20/20, but for those who voted for Sixx, do you think he would have issued this? I remember the thread Schmidt vs Sixx was several pages.
                Last edited by madengr; 03-15-2011, 12:08.
                -.- -.. ....- .... ... ---

                Comment


                • #9
                  That letter is so full of double speak, it is difficult to understand his interpretation& intent.

                  We need a constitutional amendment stating that all laws& interpretations will be written in plain English.
                  Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience.
                  http://www.facebook.com/the.armoured.porcupine
                  NRA, SAF-life, CCRKBA-life, JPFO-life,KSRA-life, III

                  Comment


                  • #10
                    I'm assuming that "immediate control" means on one's person, holstered, or otherwise, as opposed to in the redneck gunrack?

                    A city or county may regulate the manner of openly carrying a loaded
                    firearm on the person of a concealed carry permit holder.
                    A city or county may not regulate the manner of openly carrying a loaded firearm in the immediate control of a holder of a concealed carry permit when such holder is on public property.
                    I'm still cornfused. Can I or not open carry? Or can I only open carry if it is in my immediate possesion? Sorry, I'm a little dense at times.
                    President Ronald Reagan said it best, “We must reject the idea that every time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”

                    Comment


                    • #11
                      Originally posted by Sha-ul View Post
                      That letter is so full of double speak, it is difficult to understand his interpretation& intent.

                      We need a constitutional amendment stating that all laws& interpretations will be written in plain English.
                      Good luck in making lawyers write in plain english .. They want to be politically slippery, so they write ambiguous law and interpret the same way.

                      See my sig.
                      Last edited by KS.G36; 03-15-2011, 16:26.
                      "Any man who thinks he can be happy and prosperous by letting the Government take care of him; better take a closer look at the American Indian." Henry Ford

                      Comment


                      • #12
                        Originally posted by KS.G36 View Post
                        Good luck in making lawyers write in plain english .. They want to be politically slippery, so they write ambiguous law and interpret the same way.
                        Maybe a good krotchpunt would get their attention.
                        Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience.
                        http://www.facebook.com/the.armoured.porcupine
                        NRA, SAF-life, CCRKBA-life, JPFO-life,KSRA-life, III

                        Comment


                        • #13
                          Originally posted by Sha-ul View Post
                          Maybe a good krotchpunt would get their attention.
                          It would be satisfying, in any event.
                          WX0RG
                          KSRA Member
                          NRA Life/Benefactor Member

                          Comment


                          • #14
                            I really hate to be the naysayer but tread carefully.

                            This is an Attorney General's (well reasoned) opinion and it's still very likely you're going to get arrested and detained by jurisdictions that disagree with this opinion. Don't expect local cops or District Attorneys to be instantly sympathetic.

                            I don't intend to be the court case, but I am excited about this development.
                            The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

                            Comment


                            • #15
                              In Topeka it never has been a big deal to open carry. I doubt the test case comes from here.

                              tk

                              Comment

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