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Right to Open Carry Correctly Affirmed in Mississippi

JURIST Guest Columnist M. Reed Martz of Freeland Martz, PLLC discusses recent court decisions concerning a Mississippi legislative measure aimed at clairifying state gun possession laws...

On July 1, 2013, Mississippi was set to clear up any ambiguity as to whether its Constitution of 1890 and statutes allowed the open (unconcealed) carry of a firearm or other deadly weapon without a permit. That was the plan, at least, until Hinds County District Attorney Robert Shuler Smith and other Hinds County law enforcement officers, as well as several state Representatives who twice voted in favor of the bill, obtained a temporary restraining order the Friday evening before the law was to go into effect.

Following a hastily called hearing, Hinds County Circuit Court Judge Winston Kidd entered a temporary restraining order preventing the law from going into effect. The circuit court issued a permanent injunction a few days later on July 12, 2013. The circuit court found that the law, House Bill 2 of the 2013 Regular Session, was unconstitutionally vague when it defined "concealed" as "hidden or obscured from common observation ... including, but not limited to, a loaded or unloaded pistol carried upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible, or carried upon the person in a scabbard or case for carrying the weapon that is wholly or partially visible." The purpose of the amendment to was to clarify that a plainly visible, holstered weapon is not a concealed weapon for which a carry license is required.

An appeal by the Mississippi Attorney General quickly followed with several amicus briefs filed by Florida Carry, Inc., the National Rifle Association, a large contingent of the legislature, a group of concerned citizens and Governor Phil Bryant.

In an unanimous three page order [PDF] dated August 29, 2013, the Mississippi Supreme Court held—with very little explanation other than a sharp rebuke that the law was reasonably clear—that the circuit court of Hinds County erred as a matter of law when it held House Bill 2 unconstitutionally vague and therefore unenforceable. Some legal commentators have described the circuit court's argument as "silly" and the three page reversal in an unpublished order a clear signal that the court did not view the proceedings favorably.

Thus, effective July 1, 2013, it is legal for a person not otherwise prohibited from owning or carrying a deadly weapon to openly carry such a weapon without a permit. While the attorney general and the governor, as well as a significant portion of the legislature, agreed in their amicus briefs that open carry had always been permissible, the statutory change removed any doubt on the issue. With the exception of educational property there are no express statutory limitations on where a firearm can be openly carried. An attorney general opinion [PDF] from June 2013 addresses this issue in greater detail. In summary, the opinion states that open carry does not require a permit; open carry on educational property is prohibited; law enforcement is free to approach a citizen to ask for identification but cannot require production of information without grounds to submit the person to detainment; open carry applies equally to long guns such as shotguns and rifle as it does to handguns; private property owners can prohibit the carry of firearms and perhaps submit an open carrier to charges of trespass; and public property owners (such as courthouses and other public buildings) can under certain situations prohibit the open carry of firearms.

The Mississippi Constitution of 1890, Article 3, Section 12, provides, "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." The Constitution's text does not appear to grant the legislature the authority to regulate the open carry of weapons but the absoluteness of this jurisdictional deprivation is unknown.

In response to hypothetical concerns about the "new" open carry law turning Mississippi into the "wild west," many counties and municipalities have begun passing ordinances and erecting signs limiting or prohibiting possession of weapons on governmental property. Many, if not most, of these actions are illegal due to the state's preemption laws but have yet to be tested before a court of competent jurisdiction. Even apart from issues of preemption it will be interesting to see whether such ordinances can withstand constitutional scrutiny given the bold language of the Mississippi Constitution ("shall not be called in question").

M. Reed Martz has been in private practice since 2004. He is admitted to practice in Mississippi, Alabama, and Tennessee. He speaks and writes on Second Amendment topics frequently and is on the panel counsel list for several pro-Second Amendment groups.

Suggested citation: M. Reed Martz, Right to Open Carry Correctly Affirmed in Mississippi, JURIST - Sidebar, Sept. 30, 2013, http://jurist.org/sidebar/2013/09/reed-martz-right-to-carry.php.

This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@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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