Wednesday, June 12, 2013

A.G. draft opinion: Legal to ban firearms in courthouses and on private property. UPDATED

Update: The official opinion is posted below. I have not had time to review it in regards to this post. 

The Mississippi Attorney General stated firearms can be banned from courthouses and private property in an opinion drafted for Sheriff Brad Lance. The A.G. said such restrictions can take place even under the "open-carry" law that goes into effect on July 1. The opinion is in draft form and is not an official statement of the Attorney General.

The draft states a firearm is not concealed if "if enough of the firearm is visible so that it is readily apparent to "common observation," then the firearm is not concealed." (p.1) A permit is required if the weapon is concealed. However, the weapon is not concealed if it is carried in a holster or sheath. The firearm can be carried in the waistband if "enough of the weapon is visible". (p.4).

Firearms are still banned from educational property under Section 97-37-1 of the Mississippi Code. The draft deals with the issue of private property owners:

"6. Can an individual carry a firearm openly on private property such as a
retail store, grocery store or restaurant?"

At the core of this question, as well as question 7.. is whether the change to the
concealed weapons statute alters the power of private property owners and of
custodians of public property generally to prohibit conduct on that property that is not
criminal, in particular, the carrying of unconcealed weapons. Our answer is that it does
not.

A private property owner or manager of a retail store, grocery store or restaurant may
exercise his property rights and deny entry to persons carrying weapons on his
property (verbally, by posting a sign or by other means). A private property owner may even prohibit concealed permit holders from their property.
"


However, the issue that seems to raise the most controversy is whether the Sheriff can ban firearms, concealed or open carry, from the courthouse. Judge Tomie Green's order notwithstanding. The A.G. opines:

"Thus, it is our opinion that the sheriff has the state-law authority, if he determines it reasonable and necessary to the security of the courthouse, to disallow the open carry of firearms in the courthouse.....

it is our opinion that a county courthouse would easily be characterized as a "sensitive area." The courthouse is the scene of emotionally charged disputes such as child custody battles, criminal prosecutions, property forfeitures, tax sales, etc. Opposing parties are often in close contact with one another. Judges, prosecutors and other elected officials who routinely make unpopular decisions affecting persons have their offices there and are vulnerable. Further, the ban, being limited to the courthouse, is reasonably tailored to serve the governmental interest in preserving security for courthouse proceedings and personnel. The provision by the county of security measures such as the presence of deputies and metal detector checkpoints would further support the Constitutionality of the sheriff's action.

In any case, the sheriff should be able to articulate the government interest being
served by such a ban, and why the ban is a reasonable means to achieve that interest.
Likewise, any ordinance adopted by a county or municipality pursuant to Section 45-9-
53 of the Code should be supported by similar findings, preferably reflected in the
minutes. Any regulation adopted by a state agency which restricts firearm possession
on state property should be supported by similar findings, preferably placed in the
administrative record
."

There you have it. The A.G. says Sheriffs and government bodies can ban firearms in courthouses. Private property owners retain the right to do so as well. The draft also states a police officer can confiscate the weapon during a traffic stop but has to return the weapon if the owner of the weapon is not arrested. Keep in mind this is a draft opinion. Attorney General opinions do not carry the force of law and are merely advisory. However, they do provide legal protection to a government official who obeys the opinion.




30 comments:

Anonymous said...

Can't wait for the GUN NUTS to light up this one.

Anonymous said...

Well, the legislators shouldn't ban guns from the Capitol. They should assume the risks with the rest of us!

But, somehow I just have this feeling they will ban guns to protect themselves.

Anonymous said...

The assumption that a balancing test applies is dubious, up front. Note that, unless I missed it, there's no discussion of Section 12 of the Miss. Constitution as cited by Gipson in that JJ post the other day.

Anonymous said...

In other words, when in doubt, prohibit and confiscate. Cause guns are scary.

I wish all these haplophobics would move to a liberal utopia where guns are banned, like Chicago.

Anonymous said...


Tyrone Lewis would rather be a PR spin machine than actually fight crime. Someone, anyone, please tell us what the hell Othor Cain knows about anything beyond running his mouth.

Tyrone came to our NEJax HOA mtg under the pretense of "helping" us. He can't do shit except send his own crime prevention "experts" around to tell us what the damn JPD "experts" already told us.

Hollowpoint said...

How much time and effort does JJ intend to spend proving Hood is lost in a fog? An AG's opinion is worth 50 cents. In 'draft form', 25 cents.

Do we not all realize he has interns writing these damned opinions?

Anonymous said...

I'm as libertarian as anyone, but what the hell is wrong with these gun fetishists?

These guys apparently sit around jerking off to the thought of carrying a Desert Eagle into a courthouse or an elementary school. Or telling their employer, "Screw you, I'll bring a trunk full of shotguns and AR-15s to work whenever I want, and I dare you to fire me for it."

I mean, yes, you have the right to own a gun. And apparently, to carry it around in public in case you get challenged to a duel, or they get your order wrong at Wendy's. But there are places where security is better left to professionals. If you don't like it, don't go there.

Anonymous said...

Must be a school (8:26 PM) of red herring swimming the JJ waters these days.

Anonymous said...

IRS agents now training with AR-15s at Federal Law Enforcement Training Centers.

Bite me Libertarian.

Anonymous said...

I agree with 8:26. Just because you legally can do something doesn't mean it is the common sense thing to do. I own guns, and the balls to the wall attitude shown by some on this blog is just crazy.

Anonymous said...

Then stay home and hide in your closet.

Anonymous said...

10:17 - that's because half the people who comment here are idiots. Idiots' page clicks generate ad revenue like anyone else's.

Anonymous said...

I'm not planning on carrying a trunkful of weapons to work just to piss off my employer. Nor am I interested in arming myself and heading to the courthouse or school playground. Simply discussing here what the law is and, more importantly, what the law is NOT.

It's aways good to be informed instead of simply idle-minded 8:26.

KF Lapdog said...

Right. We're just a pack of KF's lapdog here only to help generate ad revenue for him. I may be an idiot but only a numbskull would believe you.

Bill Dees said...

The law allowing restrictions on the right to openly carry a gun are directly contrary to the Mississippi constitution, which says that the right to carry "shall not be called in question". It should be very interesting to see what the Mississippi Supreme Court says about this issue.

Anonymous said...

I use my guns for Home protection, business protection and automobile protection. I have n desire to carry them open anywhere but the firing range. I do have a CC permit but would never carry a gun in a courthouse restaurant etc.

Anonymous said...

Bill: " It should be very interesting to see what the Mississippi Supreme Court says about this issue."

They seldom have allowed the law to interfere with a desired outcome, so I suspect they would maintain the status quo. But would the pro-gun folks get an amendment referendum going to undo any such ruling?

Anonymous said...

Anonymous said...

The assumption that a balancing test applies is dubious, up front. Note that, unless I missed it, there's no discussion of Section 12 of the Miss. Constitution as cited by Gipson in that JJ post the other day.

The MS Constitution provision is cited in the Opinion, but is not given any discussion. I was at the law enforcement seminar yesterday and the AG lawyer did not discuss the MS Constitution provision.

Anonymous said...

Just read it and it appears to be a well thought out, reasonable opinion by the AG.

Anonymous said...

" But there are places where security is better left to professionals." Are we talking about the professionals who break into homes and kill people because they got the address wrong? Are we talking about full swat attacks by professionals on people's homes for trivial causes? I wonder!

Anonymous said...

8:46, thanks. So these questions "must be considered in light of Section 12," and then the op goes on to consider them without mentioning Section 12.

Par for an AG op.

Anonymous said...

ok...here we go. A judge is God Almighty when it comes to the courthouse and the grounds. "Enhanced Carry Law" states that "No one can conceal carry in a courtroom thats in session but, a judge can deem the WHOLE courthouse property a courtroom and they can also say that a courtroom is ALWAYS in session. If they choose to. If the judge says THATS THE WAY IT IS, THEN THATS HOW IT IS. Any property owner/caretaker, there of, can ask someone to leave private property for any reason, hence the name PRIVATE PROPERTY. If you have an Enhanced Carry permit and someone posts a sign that says NO FIREARMS ALLOWED you can be asked to leave but, you can not be arrested or fined because you have a legal right under the Enhanced Carry Law to do so but, they can ask you to leave and you must do so. By the way, if you are concealed carry then NO ONE is supposed to know you are anyway. If you dont leave then you are trespassing. now what does this all mean for OPEN CARRY...my position is...GET A CONCEALED CARRY PERMIT with an ENHANCED CERTIFICATION then you wont have to worry about the other stuff. Remember, people who conceal carry never have to usually worry about all this because no one knows if they have a gun or not.

Anonymous said...

" If the judge says THATS THE WAY IT IS, THEN THATS HOW IT IS."

At common law, yes. But if Section 12 expressly limits the state's power, that applies to all three branches of gov't.

The court can't tell Jews they're not allowed in the courtroom (tho Harold Cox came close sometimes), because that violates a constitutional right. How is Section 12 different?

Anonymous said...

Well hear hear for freaking common sense for once. The wing nuts are a bigger enemy of conservatism than the democrats, glad to see this ruling.

Anonymous said...

@2:20 ~ Here's the flaw in your logic. You keep harping on the fact that if you're carrying conceled, then nobody will know it. Your logic fails if the carrier is detained by the constabulary, hit by a TV set falling from a window and responded to by authorities, show up on a gurney at the hospital, run afoul of any number of other legalities requiring pat down, draw your weapon for any reason, etc. Suddenly a police report will reveal that you had a concealed weapon on your person and a competent investigation or followup on the report will reveal you weren't authorized to carry concealed.

If this were not so, nobody would apply for a permit in the first place. Only upon discovery of a concealed weapon is a permit of any value. Well, other than allowing people with little peckers to announce "I've got a permit!"

Totin' said...

Constables, immediately upon winning elective office, have an automatic erection. Black windows, black rims with chrome lug nuts, black car with name in gold-leaf, multiple antennas.

Many permit holders I know feel the same sense of euphoria when their application is approved and thereafter. The only difference in them and me is they spent a hundred plus bucks.

Kingfish said...

I supported the bill. However, a few thoughts.

I think a private property owner has every right to ban them from his premises. Just like I think he has the right to allow smoking if he so desires. I also think Sheriffs should have the authority to ban them in the courthouses. Just what I want. Some thug walking into a courthouse when a member of his gang or family gets convicted of murder and gets into it with the victims family. Better yet, chancery courthouse where divorces take place. Spouses and family members are mad as hell at each other. Boom. Yeah, right.

I'm also not crazy about carrying a weapon in open fashion. Someone comes in armed, has already scouted the place and sees you are packing, you are the first one getting hit if he has any sense and remember, surprise is everything. He walks up, puts gun to your face and says hand it over or else, you're handing it over.

NOW if it is concealed, he doesn't know you have one, you have an advantage of sorts over him but hey, you looked like billy bad ass when you walked in packing', didn't you?

Then there is just plain common sense. You going to walk into a day care center wearing one in the open? Just wondering.

Anonymous said...

The pendulum swings in one direction or the other. Law enforcement in various parts of the state, bolstered by Hood, was harassing peaceful, lawful and legal concealed carry permit holders.

Next time the statewides roll around I hope Candidate Hood is forced to articulate for voters his positions on carry and the 2nd amendment in general.

Don't be surprised if he starts to look like Tyrone Lewis if forced to take a position.

Anonymous said...

I'm convinced now that Kingfish is also the elocutionist who posted multiple, lengthy diatribes ^^^^.

Talk about red herrings. Freaking at the imaginary prospect of somebody appearing in a daycare, carrying. What if I show up armed at the bait store and everybody drops their bags of minnows and the floor has to be mopped and I'm expected to pay for replacement bait for all the fisherman. GASP!

You MUST be a JFP Intern said...

June 14, 2013 at 2:32 PM: I'm convinced now that Kingfish is also the elocutionist who posted multiple, lengthy diatribes ...

Really?

elocutionist
el·o·cu·tion[el-uh-kyoo-shuhn]
noun
1.a person's manner of speaking or reading aloud in public: The actor's elocution is faultless.
2.the study and practice of oral delivery, including the control of both voice and gesture.

Get back to your workshop greenhorn. You've got lots to learn.



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