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mvpel
Member
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Posted: Tue Jun 17th, 2008 03:48 pm |
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I don't have a lot of detail at this point.
Per a discussion I had with with attorney Evan Nappen at PorcFest 2008, the victim is a non-resident of New Hampshire who was availing himself of the open carry provision in exercise of his Article 2a right to armed self-defense.
He was stopped for a traffic infraction while armed with his loaded, holstered firearm, and was arrested and charged with a violation of the carry statute RSA 159:4, which prohibits unlicensed carry of a loaded firearm "in any vehicle."
The "in any vehicle" wording has existed in the law since before the Article-2a amendment to the Constitution was enacted, so arguably this constitutional provision has superceded it. It sounds like, from my brief conversation, that Mr. Nappen and his client may intend to make just this kind of challenge to the validity of the law.
The Article-2a right doesn't disappear the moment you step into a vehicle, even though the law at present says otherwise.
Last edited on Tue Jun 17th, 2008 03:49 pm by mvpel
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MarkNH
State Researcher
| Joined: | Fri May 25th, 2007 |
| Location: | New Hampshire USA |
| Posts: | 53 |
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Posted: Tue Jun 17th, 2008 04:35 pm |
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Assuming the non-resident does not have a CCW license that is valid in NH it sounds like he was breaking the law as it is currently written and the police officer took the "correct" action under the law.
It would be interesting to see this go all the way to the State Supreme court considering their ruling recently that it was valid to revoke a Pistol and Revolver license (CCW) because the person could still open carry and exercise their article 2a right - how could the same people say that forcing someone to remove the magazine/ammunition when entering a vehicle is constitutional?
(Article 2a: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. )
I doubt it will go that far though considering it is "just" a misdemeanor.
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mvpel
Member
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Posted: Tue Jun 17th, 2008 04:50 pm |
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Indeed, I don't particularly fault the cop in this situation because it's not up to them to resolve on the roadside which of two conflicting provisions of law should be applied. In order for a consitutional validity challenge to be brought against an invalid provision of law which the legislature has failed to repeal in the past 24 years, someone has to be charged under it, and for better or worse, that's what's happened here.
If you doubt that this case will go that far, you probably don't know very many ornrey Free Stater political activists who cut their teeth mounting legal challenges against $5 parking tickets. Evan Nappen is a past president of the Free State Project, and the person charged is a participant.
Last edited on Tue Jun 17th, 2008 04:53 pm by mvpel
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Gunslinger
Member
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Posted: Tue Jun 17th, 2008 05:35 pm |
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| Having lived in NH for 16 years--with a CCW the whole time, I would say that the guy will be found guilty for the simple reason that the pistol was concealed, i.e., not open to easy viewing of the cop, being holstered, and it was loaded. NH laws says you can't carry a concealed, loaded handgun in your vehicle without a CCW. Secondly, as the pistol was concealed (I'm assuming this and that he had it in a belt holster the cop couldn't see) it is NOT open carry. If he was outside his car, fine--holstered = OC; but he wasn't. I think he loses and I don't see any constitutional issue here.
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mvpel
Member
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Posted: Tue Jun 17th, 2008 07:41 pm |
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EVEN IF your pistol is velcroed to the dashboard, or duct-taped to your forehead in a vehicle, if it's loaded you're "breaking the law." It's not about "concealed" vs. "open" here.
Without a Pistol/Revolver License, there is NO LEGAL WAY to exercise your Article 2a right to armed self defense in any vehicle.
That's the Constitutional issue here.
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Gunslinger
Member
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Posted: Tue Jun 17th, 2008 08:54 pm |
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mvpel wrote: EVEN IF your pistol is velcroed to the dashboard, or duct-taped to your forehead in a vehicle, if it's loaded you're "breaking the law." It's not about "concealed" vs. "open" here.
Without a Pistol/Revolver License, there is NO LEGAL WAY to exercise your Article 2a right to armed self defense in any vehicle.
That's the Constitutional issue here.
I said: "that the pistol was concealed, i.e., not open to easy viewing of the cop, being holstered, and it was loaded." That is two separate potential charges: loaded gun in the car; concealed loaded firearm with no permit.
I then mentioned that it is NOT an open carry issue.
And there is no constitutional issue here, with respect to the NH Constitution. You can have 26 guns in your car, if you want. Just not loaded with no permit. Nothing stops you from having as many firearms--every one of them loaded, in your home, or on your person--openly if no CCW, open or concealed, with CCW. Travel on public ways is regulated over and over--drivers licenses, vehicle safety, weight limits, etc, etc by the states. And so are concealed carry laws--even in the most gun friendly states. No state--not one, has ever lost a case dealing with their power to regulate concealed carry.
Last edited on Tue Jun 17th, 2008 08:56 pm by Gunslinger
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mvpel
Member
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Posted: Tue Jun 17th, 2008 09:36 pm |
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Gunslinger -
Your argument seems to be that if you are facing towards a cop while carrying openly in a small-of-back holster, you're "carrying concealed," since after all, since a gun behind your back is not "open to easy viewing of the cop" standing in front of you.
In Kansas, as I recall, a concealed carry prosectuion was defeated because evidence established that the only reason the cop knew about the sidearm is because the end of the muzzle was showing below the bottom hem of the individual's jacket, and therefore could not be considered "concealed."
Regardless of how heavily travel on public roads is regulated, doing so cannot possibly strip you of an explicit Constitutional right. What if it were illegal to criticize politicians or pray "in any vehicle?"
Last edited on Tue Jun 17th, 2008 09:37 pm by mvpel
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Gunslinger
Member
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Posted: Tue Jun 17th, 2008 10:03 pm |
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mvpel wrote: Gunslinger -
Your argument seems to be that if you are facing towards a cop while carrying openly in a small-of-back holster, you're "carrying concealed," since after all, since a gun behind your back is not "open to easy viewing of the cop" standing in front of you.
In Kansas, as I recall, a concealed carry prosectuion was defeated because evidence established that the only reason the cop knew about the sidearm is because the end of the muzzle was showing below the bottom hem of the individual's jacket, and therefore could not be considered "concealed."
Regardless of how heavily travel on public roads is regulated, doing so cannot possibly strip you of an explicit Constitutional right. What if it were illegal to criticize politicians or pray "in any vehicle?"
Don't get me wrong, I'm on your side--and lived in Merrimack for 16 years, btw. I'm merely saying there is no constitutional issue which the NHSC would take up. Remember in a trial there are both law and facts to be determined. The law may or may not be clear; the facts have to be established and then the judgement of the two issues weighed--by the judge on law, and the jury on facts. One trial may go for and another--exactly the same law but a jury differs on the interpretation of the 'facts,' against. In VA while I lived there, two concealed carry violations were charged. Both had guns on the seat, towards the back cushion, but mostly visable to the two different cops. Almost same facts and the same law. One G and the other NG. Two different doughnut eaters, two different magistrates--no jury in either case.
As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
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MarkNH
State Researcher
| Joined: | Fri May 25th, 2007 |
| Location: | New Hampshire USA |
| Posts: | 53 |
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Posted: Tue Jun 17th, 2008 10:06 pm |
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I have to agree with mvpel and say that I doubt "carried openly in a outside waistband holster on a car drivers right hip" will be seen as meeting the definition of a concealed weapon under NH law.
Things like this make me glad that, with the exception of the "no loaded carry in a car without a permit" BS (that is more of a hunting regulation than anything else), NH is a pretty no-nonsense state when it comes to gun laws.
You don't have to notify LEO if you are carrying.
You don't need permission to buy a gun.
You can get a "shall issue" CCW permit.
There is State preemption of local laws.
Our State Constitution uneqivically declares our individual right to keep and bear arms.
"Live free or die! Death is not the worst of evils."
Edit to add, gunslinger, I know we are all on the same side here  A judges opinion in VA is not necessarily the same as one in NH and I hold out hope that if it gets that far (very unlikely) that the hunting regulation ban on loaded open carry in a vehicle will be determined to infringe the strongly worded NH State Constitution.
Last edited on Tue Jun 17th, 2008 10:22 pm by MarkNH
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mvpel
Member
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Posted: Tue Jun 17th, 2008 10:42 pm |
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Gunslinger wrote:
As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
There's a difference between "restriction" and "abrogation."
What we have in New Hampshire is a law that does not merely "restrict" the unlicensed exercise of the Article 2a right to armed self defense in a motor vehicle, but completely eliminates it.
There is no legal way in New Hampshire to carry a loaded firearm in any vehicle without applying for permission from and paying a fee to the government. "Nothing is absolute," except for New Hampshire's prohibition on having a loaded firearm in any vehicle without a license.
Article 2a reads: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."
It was enacted in December 1982, and I believe that it had the effect of nullifying the existing "in any vehicle" restriction in RSA 159:4, given that Part Second, Article 5 of the New Hampshire Constitution sets forth that laws, statutes, ordinances, etc shall not be "repugnant or contrary to this constitution." As this case moves forward, we'll find out if the New Hampshire courts take our Constitution seriously.
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Gunslinger
Member
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Posted: Tue Jun 17th, 2008 10:54 pm |
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mvpel wrote: Gunslinger wrote:
As far as "explicit constitutional rights," nothing is an absolute. Freedom of Speech--and recently of religion, have both been restricted historically. Not saying it's right, just saying it's reality.
There's a difference between "restriction" and "abrogation."
What we have in New Hampshire is a law that does not merely "restrict" the unlicensed exercise of the Article 2a right to armed self defense in a motor vehicle, but completely eliminates it.
There is no legal way in New Hampshire to carry a loaded firearm in any vehicle without applying for permission from and paying a fee to the government. "Nothing is absolute," except for New Hampshire's prohibition on having a loaded firearm in any vehicle without a license.
Article 2a reads: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."
It was enacted in December 1982, and I believe that it had the effect of nullifying the existing "in any vehicle" restriction in RSA 159:4, given that Part Second, Article 5 of the New Hampshire Constitution sets forth that laws, statutes, ordinances, etc shall not be "repugnant or contrary to this constitution." As this case moves forward, we'll find out if the New Hampshire courts take our Constitution seriously.
Good luck. It would be nice and please me if you won, but I doubt it very much. Libertarianism--even in the Granite State, isn't going to hold the day on issues like this. Maybe it would have 20 years ago, but not in this day and age with all the M@#$%s you have living there now.
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mvpel
Member
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Posted: Wed Jun 18th, 2008 03:32 pm |
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The M@#$%s don't get to say what the Constitution means, the courts do. The nice thing about Article 2a is that a lot of the people who wrote it are still around, and members of Gun Owners of New Hampshire, so the court can't make specious claims about the "original intent" without someone immediately calling BS.
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Gunslinger
Member
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Posted: Wed Jun 18th, 2008 03:40 pm |
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mvpel wrote: The M@#$%s don't get to say what the Constitution means, the courts do. The nice thing about Article 2a is that a lot of the people who wrote it are still around, and members of Gun Owners of New Hampshire, so the court can't make specious claims about the "original intent" without someone immediately calling BS.
The M@#$%s vote for the dumbsh**ts you've recently elected, and one of them appoints the judges--including SC Justices. That's the problem.
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mvpel
Member
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Posted: Wed Jun 18th, 2008 03:44 pm |
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If you look at the results from the 2004 presidential election, you'll see that the southern border towns went overwhelmingly for Bush until you get out to the very easternmost towns near Boston, while towns along our western border leaned to Kerry. So I submit that most of the M@#$%s moving here are actually political refugees, and that it's the influence Vermonters that we need to worry about.
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