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Mike
Super Moderator
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Posted: Mon Jul 20th, 2009 05:27 pm |
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A lot of folks have questioned John and I's designation of Mississippi as a licensed open cary state - attached below is our reasoning, i.e., that out of an abundance of caution, open carriers should possess the permit to conceal in Mississippi.
Several lawyers have contacted us to say we are being too cautious, that Judge Lee's concurring opinion in one case is not supported by authority and should be treated as dicta.
OK, fine, good point, but we are trying to promote successful open carry in the real world - not get people caught up in criminal litigation they can't afford and then might get us a judicial holding affirming Judge Lee's dicta.
As Forest Gump might have said, dicta is as dicta does.
Attachment: OCDO Opinion 2007-1.doc (Downloaded 73 times) Last edited on Mon Jul 20th, 2009 05:36 pm by Mike
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Johnny_B
Regular Member
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Posted: Mon Jul 20th, 2009 08:39 pm |
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I apologize for seemingly questioning your decision on licensed open carry on the map, I understand it, and I do agree with it on one hand, but it seriously bothers me knowing how backwards Mississippi can be.  I appreciate the amount of time you two put into this organization and I know I haven't been around that long...
Sorry if it seemed like I was trying to undermine your decision!  Just trying to fully grasp where we stand in Mississippi and understand the legal jargon that does/doesn't limit us and what we're really allowed.
Thanks again! 
Edit:
In fact I think I'm going to printout this OCDO opinion about OC in Mississippi and if I get hassled hand them one of these and tell them to read some research open carry supporters have researched and come to find out about Mississippi and Case Laws regarding it.
Last edited on Mon Jul 20th, 2009 08:45 pm by Johnny_B
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mark edward marchiafava
Regular Member
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Posted: Tue Jul 21st, 2009 12:12 pm |
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For some reason, my computer is unable to open that file.
What is it?
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Mississippian
Regular Member
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Posted: Tue Jul 21st, 2009 12:39 pm |
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I opened it with ms word.
SUBJECT: OpenCarry.org Opinion 2007-1: May a person holding a holding a License to Carry a Concealed Pistol or Revolver open carry a handgun in a holster in plain sight in Mississippi?
Short answer: Yes.
Discussion: Miss. Code §§ 97-37-1 & § 45-9-101 operate together to ban carriage of a handgun "concealed in whole or in part" unless the carrier is inside a motor vehicle or possesses a License to Carry a Concealed Pistol or Revolver. The courts of Mississippi have held that a handgun in a holster, though openly carried, is concealed "in part" within the meaning of Miss. Code §§ 97-37-1 & § 45-9-101 or their processor statutes. E.g., L.M., Jr. v. State, 600 So.2d 967, 971 (Miss. 1992) ("[A] revolver carried in a holster on a man's hip was a partially concealed weapon. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it.") (Lee, J., concurring).
Next we must consider what effect, if any, does § 45-9-101(18) (establishing a program of issuance for a License to Carry a Concealed Pistol or Revolver but noting that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in § 97-37-1, Mississippi Code of 1972") have upon the question of whether a person holding a License to Carry a Concealed Pistol or Revolver may lawfully carry a handgun in a holster.
The Miss. Code does not define the phrase "open and unconcealed carrying." From the teachings of Chief Justice Lee's concurring opinion in L.M., Jr. v. State, supra, it would appear that a holstered handgun is "concealed in whole or in part" within the meaning of Miss. Code § 97-37-1. Therefore, the Miss. Legislature's declaration that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in § 97-37-1" would not reach a holstered handgun. Further, whatever is meant by the phrase "open and unconcealed carrying" in § 45-9-101(18), that section does not make it a crime to carry handguns openly or unconcealed.
If it is in fact possible to carry a handgun openly or unconcealed in Mississippi, Chief Justice Lee seems to think it be extremely difficult, and that "[c]onceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it." L.M., Jr. v. State. Perhaps the legislature meant "open and unconcealed carrying" to be carrying the handgun openly in one's hand. Alternatively, perhaps the legislature perceived holstered handgun carry in plain sight to be "open and unconcealed" and did not wish the license to "authorize" such carry as a matter of state policy per se, even though as a general matter, such carry is not unlawful under § 97-37-1.
Conclusion: It is not a crime under § 97-37-1 to carry a handgun that is not "concealed in whole or in part." Further, a holstered handgun cannot be "concealed in part" and "open and unconcealed" at the same time. It would therefore appear that § 45-9-101(18) does not limit the authority of a person holding a License to Carry a Concealed Pistol or Revolver to carry an unconcealed handgun in a hip holster because either (1) the holster partially conceals the handgun, see L.M., Jr. v. State, meaning that the gun is not carried open and unconcealed," bringing the gun within the scope of the privilege provided by the License to Carry a Concealed Pistol or Revolver, or (2) a holstered handgun is not "concealed in whole or in part" such that a person needs a License to Carry a Concealed Pistol or Revolver to be exempt from § 97-37-1. Accordingly, a person holding a License to Carry a Concealed Pistol or Revolver may open carry a handgun in a holster in plain sight.
NOTE: This opinion was not written by a lawyer licensed to practice law in Mississippi. In fact, the opinion was not even written by a lawyer. As such, it is not "legal advice," and should only be used for informational and research purposes. If you want legal advice on Mississippi state law, then contact a lawyer licensed to practice law in Mississippi.
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Mississippian
Regular Member
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Posted: Wed Jul 22nd, 2009 01:41 pm |
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Several lawyers have contacted us to say we are being too cautious, that Judge Lee's concurring opinion in one case is not supported by authority and should be treated as dicta.
It would be nice to keep a database of these lawyers for future reference. (I am assuming they are lawyers licensed to practice in MS)
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1*
Regular Member
| Joined: | Sun Jul 26th, 2009 |
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| Posts: | 15 |
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Offline
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Posted: Sun Jul 26th, 2009 10:39 pm |
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| Is there a Mississippi state website that we can go to print out the statute that allows us to open carry?
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Mississippian
Regular Member
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Posted: Sun Jul 26th, 2009 10:57 pm |
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Welcome to the forum.
Statutes (or laws) are not written to allow actions, they are written to prohibit actions, So to answer your question...No.
But you can print this and take it with you:
This is section 12 of article 3 (Bill of Rights) of the MS State Constitution.
SECTION 12.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.
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mark edward marchiafava
Regular Member
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Posted: Wed Sep 9th, 2009 12:37 am |
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At the risk of sounding repetitive, what this site needs is ONE good OC attorney to deal with "dicta" such as this.
Hello?
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