Legal Considerations of Weapons Carry and Usage May 12,2018

Defense ( Weapons )


Legal Considerations of Weapons Ownership

A friend asked me to write on rules pertaining to gun ownership and use in the United States.  This article is certainly not intended to be a definitive authority on all circumstances in the United States and territories but there are several legal considerations you should review if and when you decide to purchase a weapon.  The laws in each state may vary, you should take some time and look at the law in your state.  “Know Before You Go” so to speak.

First, most states have categories of prohibited persons who cannot legally carry a firearm concealed of otherwise.  These can include people with felony convictions, history of domestic violence, mental illness, drugs or alcohol dependency, and/or a dishonorable discharge from the military.  They may also restrict gun ownership based on age.

Second, states may distinguish between having a gun in your home, in your car, or on your person (while outside your home or your car). 

Third, licensing and permitting:  some states may require licensing of firearms, some specified gun use / safety training, background checks, residency, etc. 

Open Carry.  Open means that the weapon is in plain sight.  However some jurisdictions may consider a weapon that is partially concealed such as in your holster or in your hand to not be in plain sight.  So you will need to know if the state defines “plain sight” to fully visible or partially visible.  For example, until recently in Mississippi partially visible was not considered to be in plain sight, but this has since changed.  As of 2018, 45 states permit open carry with some variations.

 

Concealed Carry:  As of 2017 thirteen states are considered Unrestricted Carry (but the actual definition of “unrestricted” can vary) which means in general you don’t need a CCW to carry a concealed weapon.  Thirty states are “Shall” issue jurisdictions, states will usually issue a CCW permit as long as you are not a prohibited person and you have completed any licensing and permitting requirements.  For the remaining seven “May” issue states:  the status usually requires that you show cause that you need a CCW (or the local authorities get to exercise some discretion about issuing a permit).  In practice, “May” issue states may not issue any CCWs.

I should also mention that states or other jurisdictions may limit the right to carry at certain locations such as government buildings, detention facilities, schools, churches, bars, etc.  So some states have what’s called an Enhanced CCW which may give you permission to carry in some or all of the restricted locations.

Not all states reciprocate with CCW permit holders so if you are traveling, you will need to check the rules for each state you may pass through.

Additionally, some jurisdictions may place restrictions on if the firearms can be loaded and as you should expect in our litigatious society, the definition of if a firearm is loaded also varies considerably from state to state with some states considering a weapon to be loaded if ammunition is readily accessible. 

You should also note that requirements to inform a law officer if you have a gun on your person or in your car vary.  Some states require that you notify the police officer, others do not.

Confused yet?  Remember each state is different and so you need to get familiar with the rules in your state.  A good website to reference is http://www.handgunlaw.us/ which tracks the rules in the US but may on ocassion not be up to date so make sure you verify any information you find on that site or any other reference. 

Use of Force:  Some states require that you have a Duty to Retreat.  In other words, if threatened, you should first seek to move away from the threat so that use of force is no longer required for self defense.  But the trend recently has been to enact Stand Your Ground laws which in most cases permits you to defend yourself without having to attempt to retreat.  However Vermont (and Puerto Rico) are still Duty to Retreat jurisdictions.  Eleven states permit you to defend yourself in your home, also called a Castle law (note that home can be variously defined as your residence, place of business and / or vehicle) but otherwise require a Duty to Retreat in public.  Three states permit you to stand your ground in your vehicle and the remaining 35 have either passed Stand Your Ground laws or are Stand Your Ground in practice. 

However, be aware that you may not qualify for Stand Your Ground consideration if you are going out seeking to engage someone in a gunfight (or a knife fight where you brought a gun or a gunfight where they did not bring a gun….).  The same goes for Castle laws:  you cannot invite someone over to your residence with the intent of shooting them. 

Guys, this is a complex area and it is difficult to speak in general terms for 50 states plus whatever other local jurisdictions may decide to limit gun ownership, carrying or using a gun.  The best advice we can give is check what the law is in your area. 

I am also going to add that if you find yourself in a situation where you had to use a gun (or other weapon) to defend yourself, you should probably get a lawyer.

Honorable mention to Texas which in July 2017 passed an Open Carry Law for Knives over 5.5” which in effect allows you to strap on a broad sword and stroll the streets of Austin, Houston or Dallas.  Contrast this with London’s recent knife ban which is a little disturbing since the police are confiscating screwdrivers, pliers and other tools – I guess home repair will be optional.  Should boost new home sales…

De Oppresso Liber

 

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