Kansas AG Says Localities Cannot Ban Unloaded Open Carry

Kansas Attorney General Says Localities Cannot Ban Unloaded Open Carry in Town, or at City Hall
But Law Remains Clear as Mud When it Comes to Concealed Handgun Permit Holders.
AG Standing Ready to Help Legislature Clarify Permit Holders’ Rights.

Sacramento, California –-(Ammoland.com)- Like most states, Kansas state law allows law-abiding adults to openly carry properly holstered handguns without any permit.

And now Kansas Attorney General Derek Schmidt has issued an opinion clarifying that localities cannot ban “unloaded” open carry.

Op. Atty. Gen. No. 2011-006 (Kan., March 11, 2011)1 provides in relevant part that Kansas law allows “cities and counties to regulate only the open carry of loaded firearms, not unloaded firearms.”2 (underlined emphasis in original).

See www.ksag.washburnlaw.edu/opinions/2011/2011-006.pdf.

43 states allow open carry in public, and the only state besides Kansas which does not yet generally preempt localities from banning open carry is neighboring Missouri.

Though most Kansas localities do not regulate open carry at all, a few have enacted bans on open carry that would reach even “unloaded” open carry. General Schmidt’s confirmation that localities cannot regulate unloaded open lends urgency to the need for these localities to identify and repeal such unlawful ordinances.

“What needs to happen now,” says John Pierce, co-founder of OpenCarry.org, “is for localities to review their ordinances, regulations, and policies for compliance with Kansas law and ensure that any local open carry restrictions apply only to “loaded” open carry.”

But Pierce goes further and urges Kansas localities to “just repeal all open carry bans on the books because the police cannot constitutionally seize open carriers and inspect firearms unless they first have ‘reasonable suspicion’ that the gun is loaded or some other crime being committed.” Detaining open carriers to check them out “is a good way for cities and counties to get sued and taxpayers to pay judgments,” adds Pierce.3

Unfortunately General Schmidt’s opinion raises more questions than it answers as to whether localities may ban concealed handgun permit holders from carrying loaded guns openly. Opines Schmidt without any explanation:

“A city or county may regulate the manner of openly carrying a loaded firearm on the person of a concealed carry permit holder. . . . [But 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.” (bolded emphasis added).

Without the aid of any court opinion yet construing these two apparently conflicting rules of law, it’s not completely clear what they mean. However, the term “on the person” would appear to either be a subset of, or synonymous with, the term “in the immediate control.” Either way, construed in this manner, the second rule of law provides a safe harbor from the regulation allowed by the first rule whenever the permit “holder is on public property” (presumably meaning property open to the public).

See www.forum.opencarry.org/forums/showthread.php?88117-Loveland-CO- pays-15-000-to-settle-open-carry-lawsuit.

To be honest, we at OpenCarry.org believe that the best construction of the statute is, especially under the rule of lenity,4 that the exception for permit holders on public property means what it says and largely swallows the general rule that localities may regulate loaded open carry by permit holders. We wish General Schmidt had opined as much, in which case OpenCarry.org could have adjusted our maps to categorize Kansas as a “Licensed Open Carry State.”5

But to be fair to General Schmidt, he explicitly states in his opinion to the requesting official, Representative Lana Gorden (R – Topka), that “the ambiguity in the [statutory] language itself does tend to render difficult the sort of ‘clear direction and precise clarification’ you requested.” Schmidt added, hint, hint, that “[s]hould you wish to proceed with legislative clarification through a further amendment to this statute, legal staff at my office would be at your service.” Hmmmmm.

So, the ball is now in the legislature’s court. Most states allow open carry without any license, and OpenCarry.org’s Kansas members now look to the Kansas Legislature to fully preempt localities on open carry. “89% of Kansas voters approved a state constitutional right to bear arms,6 notes Pierce,

• See www.duhaime.org/LegalDictionary/R/RuleofLenity.aspx.
• So for now, out of an abundance of caution, OpenCarry.org will continue to list Kansas as merely an “Open Carry Friendly State” at www.opencarry.org/opencarry.html (hold cursor over legend for definitions).
• See www.jurist.org/paperchase/2010/11/kansas-voters-approve-measure- clarifying-right-to-bear-arms.php.

Carry on!

About:
OpenCarry.org was founded in 2004 by Virginia gun-rights activists John Pierce and Mike Stollenwerk and has served to ignite the “Open Carry Movement” that is sweeping the country. In addition to being an invaluable legal resource for gun owners, the site has quickly grown to be a social networking portal for thousands of American gun owners. Visit: www.OpenCarry.org