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Mississippi Supreme Court Upholds End to 'Hiding in Plain Sight'

JURIST Guest Columnist John Frazer argues that the Mississippi legislature's amended definition of a "concealed" weapon is not unduly confusing or vague...

A recent decision by the Mississippi Supreme Court may finally have laid to rest the state's status as home to one of the nation's most rigidly interpreted concealed weapons laws, as well as ending one of the oddest recent episodes of gun-related litigation in the US.

At the beginning of 2013, Mississippi—like most states—prohibited the carrying of handguns and certain other weapons concealed without a permit.

However, unlike any other state's "concealed" carry statute, Mississippi's statute prohibited carrying a weapon concealed "in whole or in part," a provision that had been read absolutely literally since the Mississippi Supreme Court's 1908 decision in Martin v. State. Under Mississippi law, as Attorney General Jim Hood noted in a 2012 opinion, the law prohibited concealing any part of a weapon whatsoever.

Mississippi precedent was so severe that it drew a sharp comment from Chief Justice Roy Noble Lee in the 1992 case of L.M., Jr. v. State. Lee recounted his experience as a young lawyer researching the case law while preparing to defend a client charged under the statute:

To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man's hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person's leg violated the statute; and that covering a weapon with feet, hands or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it. (One Western gunfighter used that method.)
To end this situation, the Mississippi legislature enacted House Bill 2, which amended the statute to define "concealed" as "hidden or obscured from common observation." The new definition expressly excluded arms carried on the person "in a sheath, belt holster ... shoulder holster[,] ... scabbard or case" that are "wholly or partially visible." In other words, the revised statute expresses the common sense idea that if you can see a person's holster or knife sheath, you can fairly well guess that they are armed. Carrying arms openly, even without a license, would be legal (as it is in about half of the states)—a fact that raised the ire of anti-gun groups and officials.

Those parties—late in the afternoon on the last business day before the amendment was to take effect—filed a motion for a temporary restraining order. The document [PDF], which among other things wrongly identified the plaintiff county district attorney and sheriff as the "chief" legal and law enforcement officers "of the State of Mississippi," recited a litany of policy arguments against the open carrying of firearms, as well as various suggestions for what the law "should require."

For example, the plaintiffs noted the level of firearm-related crime in Mississippi, based on statistics that were, of course, counting crimes that had occurred years before the enactment of House Bill 2. The plaintiffs alleged that allowing open carry would cause increased calls from concerned citizens that would burden law enforcement agencies and that open carry would otherwise complicate police officers' duties. They claimed that people openly carrying guns would be easily disarmed by criminals and that the law therefore should require training for the benefit of those carrying firearms openly. Finally, they argued that the open carry of firearms would cause the "escalation of disagreements" and increased violence.

The chief factual flaw in all of these claims is that the concerns expressed by the plaintiffs had never come to fruition in other states that had long allowed open carry. The chief legal flaw was that none of them amounted to a legal argument for why the law should be struck down. Still, the filing was good enough for Hinds County Circuit Court Judge Winston L. Kidd, who issued a temporary restraining order [PDF] from the bench that same evening. The bench ruling was followed two weeks later by a written opinion [PDF], which suggested, among other things, that the law was unconstitutionally vague because it did not specify who could be armed, or where.

As the National Rifle Association later put it, the trial court "veered back and forth between two contradictory notions of vagueness," claiming both that the law could not be understood and that it was somehow vague because clearly allowing open carry was a bad policy.

First, the notion that Mississippi's definition of concealment is impossible to understand would be news to the courts in most of the country. A glance at an American Law Reports annotation on the subject makes clear that Mississippi was a longtime outlier: "In most states, if the weapon is partly exposed to view, there is no concealment within the meaning of the statute." Since 1838, Virginia's concealed weapon statute (with insubstantial variations in wording) has made it unlawful only to carry a weapon "about his person, hidden from common observation." As far back as the nineteenth century, courts throughout the country have adopted tests similar to the definition in Virginia and similar to the wording of Mississippi's new statute — for example, a weapon is concealed if it is hidden from "general view" (Arkansas), "ordinary observation" (Alabama, Colorado, Idaho, Illinois, Kentucky, Maryland, Missouri, New Jersey Ohio and Wisconsin) or "ordinary sight" (Delaware and Florida), among similar tests. These tests sensibly leave the concealment of a weapon as a question for the fact finder and are no more vague than asking a jury to determine whether a vehicle was being operated at "excessive speed," or other issues that are addressed every day.

Second, just because plaintiffs do not like a law as a matter of policy does not make it vague. Far from being vague, the new provisions had simply clarified the law in what the plaintiffs thought was the wrong direction. Faced with the added clarity of the new law, the court was forced to manufacture a series of supposedly unanswered questions, such as whether a person can walk down the street with their hand on their holster or how the police should respond to a hypothetical group of five differently armed men walking down the street—punctuated with a comment that "[r]easonable, law abiding citizens should not be subjected to this type of behavior." In reality, each of the hypotheticals could easily have been answered by reference to the plain text of the statute: Is the weapon "hidden or obscured from common observation?" If not, the conduct is legal.

The drama then moved to the Mississippi Supreme Court, where the state's emergency appeal of the bench ruling had already been denied for unspecified procedural reasons. The state—ably represented by Assistant Attorney General Harold E. Pizzetta II—continued to pursue both interlocutory and direct appeals of the restraining order, now supported by amici including 80 state legislators [PDF] and the National Rifle Association [PDF].

On August 29, the state's highest court brought the curtain down on the whole strange case. In an order [PDF] that barely made it to three pages, the court addressed both the interlocutory and direct appeals, dispensed with any further briefing and vacated the restraining order, saying only that the lower court had "erred as a matter of law" in finding the new statute unconstitutionally vague. Quite possibly, the supreme court found the trial judge's errors so obvious that no elaboration was needed.

What lessons can be learned from the whole affair? Second Amendment supporters can draw further support for what they likely already knew: opponents of the right to arms will allow no basic legal principle (or even the need to articulate a legal theory in a proper complaint) to get in their way. One can only hope that the defeated plaintiffs will now recognize that the Constitution does not forbid legislatures from expanding Americans' liberties.

John Frazer is an attorney in Fairfax, Virginia and is a member of the Virginia State Bar. Before entering private practice, he worked for twenty years as an attorney, researcher and lobbyist for the National Rifle Association's Institute for Legislative Action, where he was director of research and information at the time this litigation occurred.

Suggested citation: John Frazer, Mississippi Supreme Court Upholds End to "Hiding in Plain Sight", JURIST - Sidebar, October 8, 2013, http://jurist.org/sidebar/2013/09/john-frazier-concealed-weapon.php.

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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