Legally exempted?

This is a discussion on Legally exempted? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; OK, this is going to be somewhat long, but I'm going to try to keep this brief. I was reading the CCW class law and ...

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Thread: Legally exempted?

  1. #1
    Member Array soundwave's Avatar
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    Legally exempted?

    OK, this is going to be somewhat long, but I'm going to try to keep this brief. I was reading the CCW class law and legal PDF file that our DPS gives out that was written for CCW lawyer Michael Anthony (one of the expert witnesses for the Fish vs. Arizona case). In it he brought up the question of whether the exemptions held in ARS 13-3102 of where carrying a weapon is allowed applied to CCW holders.

    The law Mr. Anthony brings up is ARS 13-3102.C.4: " C. Subsection A, paragraphs 1, 2, 3, 7, 10, 11, 12 and 13 of this section shall not apply to:... 4. A person specifically licensed, authorized or permitted pursuant to a statute of this state or of the United States." This exempts the statues referring to CCW without a permit, CCW without a permit in immediate control or in a vehicle, possessing a knowingly defaced weapon, the trespass law reference weapon carry, entering a polling place on election day, carrying on school grounds, and entering a nuclear or hydroelectric generating station carrying, respectively.

    Mr. Anthony argues that since ARS 13-3102.C.4 was enacted prior to the CCW statute (ARS 13-3112) that it could not have contemplated CCW permits. He does admit that lower courts have accepted the argument but appellete courts have not had it brought before them. He also states that the legislature has not passed legislation to clarify the statute. This is where I find something wrong with his argument and hopefully a lawyer on the board can correct me here...

    If said statute (ARS 13-3102) was enacted prior to the statute about CCW permits (ARS 13-3112), then why is it that the original statute (ARS 13-3102) specifically mentions the other? The first two sections of ARS 13-3102:

    " A. A person commits misconduct involving weapons by knowingly:

    1. Carrying a deadly weapon without a permit pursuant to section 13-3112 except a pocket knife concealed on his person; or

    2. Carrying a deadly weapon without a permit pursuant to section 13-3112 concealed within immediate control of any person in or on a means of transportation
    "

    Our CCW permits state: "I hereby certify that the person described hereon has been granted the privilege of carrying a concealed weapon in compliance with Arizona Revised Statute 13-3112." Given authorizing a person pursuant to a state statute authorizing the person to carry a firearm and concealed on his person, which, given the statute should validate a CCW permit as an exemption.

    Combine that with the other legal block on school carry, the Gun-Free School Zones Act (18 USC 922(q)) which states as an exemption that an individual possessing a firearm "is licensed to do so by the State in which the school zone is located or a political subdivision of the State." This is providing that the person is required to have law enforcement authorities verify that the person is qualified under law to receive the license... Arizona requires this specifically.

    Now, I'm not going to try to test these theories, but is it just me or does it seem to provide for these exemptions, provided that the firearm remain concealed (in some cases)?

    Cheers.

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  3. #2
    Senior Member Array A1C Lickey's Avatar
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    I'm sorry but you lost me in legalese. Is there any way you can explain that a little better?
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  4. #3
    Member Array soundwave's Avatar
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    lol Sure. There are two major statutes in Arizona that outlines where you can carry/not carry (Carry Law) and concealed weapons permits (CCW Law). Carry Law gives a series of exemptions to people that are licensed pursuant to a state statute. Concealed weapon permits are issued pursuant to the state's CCW Law statute. Hence, without further interpretation of that law it would appear that you are exempted from certain parts of Carry Laws saying where you can't carry as long as you follow CCW Laws.

    The lawyer that wrote the state's (Arizona's) CCW permit class outline says that the exemption doesn't include CCW permits because Carry Law was enacted prior to CCW Law. He says that because it was enacted prior to CCW Law that the legislature couldn't have thought of CCW Law because it wasn't created yet. However, Carry Law's first two parts specifically mention the exact statutes of CCW Law as a reference. Meaning, either the legislature originally thought of CCW Laws or they revised Carry Laws to include CCW Laws, either way -- they definitely thought of them.

    I don't have any exact references, but that lawyer said that the exemption was used as a defense in cases where someone was charged with breaking Carry Law by taking a firearm where they shouldn't in some lower courts... Those lower courts upheld the exemption because the person had a CCW permit. He also says that no one has appealed those cases so appellete (appeal) courts have never ruled on it. Finally he says that the legislature has never revised the Carry Laws to specifically state that CCW permits are either allowed or not allowed to use the exemption.

    So here's what I'm wondering... If the legislature has obviously thought of Carry Laws and CCW Laws together (because they each mention each other) and the courts have upheld that a CCW permit definitely is qualified under the exemption -- does this mean that the state is actually allowing CCW permit holders to take weapons where they're not supposed to?

    One of those places that the Carry Law seems to allow CCW permit holder to have a firearm in is at a school. The other legal block is the federal Gun-Free School Zone Act. That law states that one of its exemptions is someone that's licensed to carry a firearm by the state that the school is in, provided that the state requires the permit holder to be qualified by a law enforcement authority. DPS -- a law enforcement authority of the state -- qualifies a permit holder and licenses the holder to carry a firearm concealed.

    From what I can see, as long as CCW permit holders carry their firearms according to their license (e.g. concealed under CCW Laws), they would be exempted by state Carry Law and federal law to carry in certain places that others are not. As I said before, I'm not planning on testing this exemption but I'd like to know if I'm the only one that sees this as a possibility.

    Cheers.

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    Combine that with the other legal block on school carry, the Gun-Free School Zones Act (18 USC 922(q)) which states as an exemption that an individual possessing a firearm "is licensed to do so by the State in which the school zone is located or a political subdivision of the State." This is providing that the person is required to have law enforcement authorities verify that the person is qualified under law to receive the license... Arizona requires this specifically.

    Now, I'm not going to try to test these theories, but is it just me or does it seem to provide for these exemptions, provided that the firearm remain concealed (in some cases)?
    Interesting. Since we in Arkansas are checked by the FBI and the State Police, it would seem that in accordance with 18 USC 922(q)) we too would be exempt and OK to carry in a school.

    This needs to be checked into further. This could be the very thing that allows it to be so as I have heard on several occasions that it is Federal Law that dictates that CCW on school grounds is prohibited.
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    Hmm... Sehr interessant. So this implies that teachers would be allowed to carry on school grounds here. Or is what you are saying more to the side of CCW's in general?

    As well, if this implies that schools are within limits, does that mean our restaurant exemption is nullified?
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    Under 18 USC 922 (q) a CCW does not mean you are liscensed to carry a weapon on school grounds. The legislative intent (which is important in court) can be assumed to mean LEO in this case. However, the debate is taking place in state houses as we speak (or type as the case may be). One thing is certain, unless your state's law clearly says that a CCW can carry on school property, you are not able to do so. However, one may be able to avoid prosecution by making the above argument. If it is a gun friendly DA, they may decide to assume you really tried to inform yourself and you just happened to come to the wrong conclusion. I doubt that would happen, but it could. More importantly, as a person that has a CCW, you simply complicate the problem if you do something stupid. We can justify and argue all we want, but we all know you really can't have a gun at a school. If you decide to take one to a school you're just giving the grabbers ammunition to use against the rest of us.
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    Member Array katmandoo122's Avatar
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    Anthony seems to have some pretty poor legal judgement. This is not a legal opinion, but here goes:

    No law ever created can ever anticipate the laws that will be enacted subsequent to it. So, yes, they probably did not anticipate the CCW law when the Carry Law was enacted. Then again, the Founders of this country may not have anticipated Louis Farrakhan when they recommended the passage of the First Amendment.

    However, when a new law is enacted, it is ASSUMED that it was the intent of the legislature to override previous portions of the law where there is a direct disagreement. So, for instance, the 14th Amendment extended the protections of the previous 13 Amendments (and the rest of the Consitution) to blacks, even in the south even though the Constitution explicitly recognized slavery.

    Similarly, in any direct confrontation between clauses in legislative law, the latest is given precedence.

    There are two caveats to this. First, it is poor law writting that enacts new legislation in direct confrontation rather than amending or repealing. Second, a prosecutor could and would argue that clauses are not in direct confrontation and would potentially be helped by the idea that the legislature, if it really intended to allow CCW to be exempted from the Carry restrictions, would have written it that way and clearly amended or repealed from the Carry Law as necessary. So, there is not much protection there.

    However, the principle is the same. For instance, without looking it up, I believe that the books in Michigan list out a number of places that you cannot carry a firearm (unless you are a peace officer). However, the CCW law (called CPL here) specifically states a new set of "gun free zones" for CPL holders, most of which matches up with the previous law but which is somewhat less restrictive. Therefore, a defendent is entitled to protection, if properly licensed, under the new law, even is he is prosecuted for earlier laws.

    That's pretty quick and dirty. I would not test it as you would probably lose, especially if you tried to go toe to toe with the federal law, which has dozens of precedents and legislative intent rulings behind it.

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    Member Array sailormnop's Avatar
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    My understanding is that the Federal gun free zone law does not apply to CHL holders, but most states make school property off-limits to everyone, CHL notwithstanding. The only state that doesn't, I believe, is Utah.
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    Member Array soundwave's Avatar
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    For those of you saying that the Gun-Free School Zones Act doesn't apply to CCW holders, here's the thing that got me thinking about that part... Sent from the BATF, the ones in charge of enforcing that law:

    http://x-mirror.com/batf_school_zone.pdf

    You've probably seen this before.

    Cheers.

  11. #10
    Member Array sailormnop's Avatar
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    So, if you have a RESIDENT permit issued by the state and the state requires a police background check to get that permit, then you are exempt from the GFZA. In Utah, that's the end of the story.

    Every other state fills in that gap with state law, forbidding EVERYONE from carrying on school property.
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    Ex Member Array one eyed fatman's Avatar
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    OH BOY! Here we go trying to figure out the law again. Face it guys the law is made by lawyers for lawyers. The more they confuse you the more money they make. That's the only law you can depend on.

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