HB 276 just passed the house

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HB 276 just passed the house

Postby brainoncapitalist » Tue 11 Mar 2014 8:25 am

I saw a post on Facebook (Utah Gun Rights group) that said HB 276 passed the house. I believe this is the bill that is trying to make sure a person can't be charged with Disorderly Conduct just for having a holstered firearms concealed or open. If I remember correctly, there were two such bills and the consensus was that one was bad and one good. Is this the good one?

Here's the text of the FB post:

Bad Bill Alert for 3/11/14: HB 276: Violence Against Open Carry Gun Owners Passes House!
Did you (or a friend) strap on a rifle for a rally/hearing, or to sell outside a gun show? If HB 276 passes, unholstered open carry gun owners will be targeted for violent harassment and arrest. Other gun owners will be at increased risk of abuse as well.

HB 276 bill passed House Monarchess Rebecca Lockhart's hand-picked law [sic] enforcement and criminal justice committee, passed the house final floor vote (54-17-4), and is currently in Senate Monarch's hand-picked rules committee, awaiting senate floor action. Learn more about this imminent threat (with pictures and many source links) and appropriate action you can take at
http://utgunrights.com/alertsupdates/20 ... /hb276.htm

Why Are "Gun Rights" Groups Supporting Gun Control?
In the 2013 Utah Government Corruption Report, a 2013 rally flier, and elsewhere, UT Gun Rights warned how false friends appear to be on your side, but fundamentally serve the purposes of your opposition. And how important it is to remain apprehensive about those who tell you things you want to hear.

UT Gun Rights also revealed a secret communication between Utah Shooting Sports Council (USSC) chairman W. Clark Aposhian and Mike Mower, Executive Monarch Gary Herbert's Deputy for Community Outreach. In it, Aposhian appeared to secretively facilitate opposition to last year's gun rights bill HB 76 (i.e. to carry "unloaded" firearms concealed without a permit). To read the transcript, see this threat briefing online.

Unfortunately, the betrayals and undermining of your rights continue. According to a recent alert by the USSC, HB 276,

"…Is a well-reasoned bill which will take pressure off of both law-enforcement and the courts. It supplies law enforcement with more precise guidance on what constitutes disorderly conduct so as to not punish innocent activities."
Source: USSC Alert for January 23, 2014.

Why would this organization, which claims to represent the rights of Utah's gun owners, argue such nonsense? Could it possibly have missed previous sponsor Paul Ray's public and oft-repeated objectives? Or is it complicit in the effort to attack gun owners who choose to carry openly?

USSC mentioned the "concern" UT Gun Rights has consistently raised in the following manner:

"Firearms that are not encased or not holstered would continue to be treated as they are today. Carrying guns in such a manner would not necessarily be disorderly conduct, most law enforcement officers would respect your right to carry in such a manner, and the few miscreant law enforcement officers who have been abusing gun owners would continue to do so.

"Improving gun laws is an ongoing process and we hope to make more improvements to this section of the law in the future.

"A concern that has been raised with the above language is that since it explicitly exempts holstered and encased firearms from disorderly conduct it would imply that the carrying of un-encased or un-holstered firearms is disorderly conduct. Both our and NRA’s legal counsel has looked at this and determined that this is not the case."
Source: USSC alert for Mar. 6, 2014.

How comforting. And where are these attorneys' substantive arguments in support of such a claim? Perhaps nothing more is provided because it would subject them to condemnation and ridicule.

USSC would have you base your position on HB 276 solely on trusting their (and supposedly the NRA's) attorneys. Was it USSC’s attorney who determined last year that USSC Chairman Clark Aposhian should undertake secretive efforts to coordinate the opposition to HB 76 by the Crossroads of the West Gun Show owner to governor Herbert's staff?

Should you likewise trust the legal judgment of the NRA? For example, in 2002 the NRA supported SB 950 in California to create the Armed Prohibited Persons System (APPS). On January 27, 2014, the NRA issued an alert regarding the monster APPS they helped to create by stating,

“While these raids [resulting from APPS] are promoted by politicians as intended to disarm dangerous criminals, they actually more often target unsuspecting citizens who present no danger and have no idea that they are prohibited from possessing firearms and ammunition.”

Are USSC and the NRA engaged in a sickening “job security” program by promoting anti-gun owner bills and politicians and then “being there” to help fight against the terrible consequences they helped to create?

USSC is not alone in subjecting Utah's open carry gun owners to potential violent attack by government statute enforcement agents. According to GoUtah!:

"The 'reasonable person' standard as used in this bill creates a high level of protection for someone who is legally and peaceably carrying a holstered self-defense weapon. The language invoking the hypothetical 'reasonable person' is a long-established legal standard used in many existing statutes, including Utah’s self-defense law.

"This is a big improvement over the existing law in our opinion, and HB276 as currently written would enable us to achieve this improvement without surrendering any freedoms that we already have. It’s the equivalent of taking two steps forward without taking any steps backward on our journey toward greater legal recognition of the right to bear arms."
Source: GoUtah! alert for Jan. 29, 2014.

There's that pesky gun control keyword again: "holstered". What about those who strap them on or hold them proudly at rallies, as their forefathers did before them? Their rights, apparently, are no longer included by organizations like USSC and GoUtah!.

GoUtah! reacted to UT Gun Rights' above criticisms of HB 276. Unfortunately, it failed to provide substantive facts or analysis to back up its repeated claims.

Consider that, were USSC's or GoUtah!'s opinions indeed accurate, then the previous bill sponsor, statutator Paul Ray, is either lying to the public, or obliviously unaware of what his own bill would have actually accomplished.

Appropriate Actions
Read the following threat briefing on HB 276 (with pictures and many source links), including appropriate actions you can take, at
http://utgunrights.com/alertsupdates/20 ... /hb276.htm

Statutory Session Ends THIS THURSDAY March 13th!
This statutory session ends on March 13th at Midnight, and there are numerous active threats to your rights. Watch the 2014 Bill Tracking Page: The Good, The Bad, and The Ugly at
http://utgunrights.com/alertsupdates/20 ... adugly.htm
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Re: HB 276 just passed the house

Postby Car Knocker » Tue 11 Mar 2014 9:22 am

Thanks for posting the text of the message. If nothing else, the vituperative rhetoric therein will ensure I keep my distance from that sophomoric group.
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Re: HB 276 just passed the house

Postby brainoncapitalist » Tue 11 Mar 2014 11:50 am

Is HB 276 the bill that Charles supports? I thought there were two of these bills, but that one was better than the other. Which one is this?
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Re: HB 276 just passed the house

Postby bagpiper » Tue 11 Mar 2014 12:01 pm

This is the good version of the bill.

It is sponsored by Rep. Curt Oda. Here are the sum total of the material changes made by HB 276 as passed by the House:

43 (3) The mere carrying or possession of a holstered or encased firearm, whether visible
44 or concealed, without additional behavior or circumstances that would cause a reasonable
45 person to believe the holstered or encased firearm was carried or possessed unlawfully or with
46 criminal intent, does not constitute a violation of this section. For purposes of this section, the
47 belief of a reasonable person may not be based on a mistake of law. Nothing in this Subsection
48 (3) may limit or prohibit a law enforcement officer from approaching or engaging any person in
49 a voluntary conversation.



The bill provides a "safe harbor" against charges of Disorderly Conduct for any person who is in otherwise lawful possession of a firearm that is "holstered or encased, whether visible or concealed" unless there is some behavior or circumstance in addition to the mere possession of the gun that would cause a "reasonable person" to believe that the gun was possessed with criminal intent.

The bill has ZERO effect on how a non-holstered or non-encased gun otherwise legally carried would be viewed through the lens of the existing Disorderly Conduct statute. In other words, in some cases, a non-holstered gun would remain perfectly legal, while in other cases, a non-holstered gun would continue to be a potential violation of existing Disorderly Conduct.

Even as the facebook post referenced by the OP claims that USSC, NRA, and GOUtah! have "failed to provide substantive facts or analysis to back up [our] repeated claims" of how this bill actually effects law, it is, in fact, the group making the post failed to provide any facts or analysis to back up their claims that the bill would have any detrimental effects at all on non-holstered/non-encased guns. Instead, they've resorted to the worst kind of sophomoric ad homimen and innuendo against both individuals and organizations.

I've repeatedly offered extensive analysis of the effects of this bill on this forum. Sadly, the very small number of persons making claims about this bill leading to more harassment or easier convictions for those with non-holstered guns has simply refused to be persuaded. They have offered no counter analysis except repeated assertions (without reference to any controlling case laws or rules of court) that one exception makes all other conduct illegal through some creative legal construct that nobody recognized as being a credible expert on gun laws accepts.

A simple reading of the law makes clear that it provides safe harbor for certain, specific conduct. It does not criminalize any other conduct. Providing a specific exemption for holstered/encased guns has no more effect on non-holstered guns than it does on singing in the rain. Is singing in the rain a violation of Disorderly Conduct? It could be IF it:

(1) A person is guilty of disorderly conduct if:
(a) [he] the person refuses to comply with the lawful order of [the police] a law
enforcement officer to move from a public place, or knowingly creates a hazardous or
physically offensive condition, by any act which serves no legitimate purpose; or
(b) intending to cause public inconvenience, annoyance, or alarm, or recklessly
creating a risk thereof, [he] the person:
(i) engages in fighting or in violent, tumultuous, or threatening behavior;
(ii) makes unreasonable noises in a public place;
(iii) makes unreasonable noises in a private place which can be heard in a public place;
or
(iv) obstructs vehicular or pedestrian traffic.


If singing in the rain violates those provisions of law, then the person doing the singing has violated Disorderly Conduct. If the singing in the rain doesn't violate those provisions, the person is not in violation of law. Replace "singing in the rain" with "carries a gun that is not holstered or encased" and you have exactly the same situation.

Anyone familiar with the reading of statute can easily see how this works.

For those who are not familiar and are looking for expert or authoritative advice, I will offer up that GOUtah! as an organization and myself personally, support this view. So too does USSC as an organization and Clark Aposhian and Scott Engen, personally. Some of the very folks claiming a contrary interpretation have admitted on this list that Mitch Vilos disagrees with their interpretation and agrees with my reading. Brian Judy and the NRA counsel support this reading. And I am told that even Paul Boyden in the Utah AG's office, office of prosecutors agrees with this reading.

As I've noted previously, I've been reading, analyzing, and helping to draft RsKBA related legislation in Utah for nearly 20 years. In that time I've never made the mistake of supporting a bill that turned out to be bad for RsKBA. (On ONE occasion I opposed a bill that turned out, ultimately, to be good for RsKBA.) Clark has been doing this for 20+ years. Scott Engen has been doing it for 30 years and can legitimately claim direct credit for Utah's shall-issue permit system.

This is a good bill, that does good things for RsKBA without doing anything bad at all. In terms of protecting the right to bear arms against misuse of Disorderly Conduct, I believe this bill gets us 90%+ of what we would want in a perfect world without giving away anything. In practical terms, that is probably closer to 99%+. The otherwise lawful possession of a visible gun, in a holster or case, would not be a violation of DoC. Period. The bill has zero effect on the legality vis-a-vie DoC of non-holstered guns. It is entirely worthy of our support.

I urge all here to contact their State Senator to support HB 276, without amendments.

Charles Hardy
GOUtah!
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Re: HB 276 just passed the house

Postby brainoncapitalist » Tue 11 Mar 2014 1:04 pm

Thanks, Charles. Email sent to my Senator, Margaret Dayton. :)
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Re: HB 276 just passed the house

Postby DaKnife » Tue 11 Mar 2014 2:10 pm

Email sent to my Senator asking for that dangerous language to be removed. Despite Charles's lengthy expositions on why this isn't bad language I disagree. We've all seen time and again when police and prosecutors twist the very specific verbiage of the laws in order to try to prosecute individuals. And as in the copied alert, the specific identification of "Holstered or encased" in this bill leaves open the implication that any un-holstered or un-encased weapon (most common example being safely slung rifles) are in fact subject to Disorderly Conduct Charges.

Give an OEO this bill signed into law and you will see people carrying slung rifles charged with Disorderly Conduct.
SPOOOOOOON!!!

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Re: HB 276 just passed the house

Postby bagpiper » Tue 11 Mar 2014 2:37 pm

DaKnife wrote:Email sent to my Senator asking for that dangerous language to be removed. Despite Charles's lengthy expositions on why this isn't bad language I disagree. We've all seen time and again when police and prosecutors twist the very specific verbiage of the laws in order to try to prosecute individuals. And as in the copied alert, the specific identification of "Holstered or encased" in this bill leaves open the implication that any un-holstered or un-encased weapon (most common example being safely slung rifles) are in fact subject to Disorderly Conduct Charges.

Give an OEO this bill signed into law and you will see people carrying slung rifles charged with Disorderly Conduct.


I'm going to simply disagree. Specifically protecting holstered and encased guns from a DoC charge has zero effect on the legality of non-holstered guns vis-a-vie the DoC statute. Indeed, I will challenge anyone who holds the view it does to show me any court case where analogous language has been thus applied.

I encourage any who are still confused to go read the wiki article on "safe harbors" I linked to in my original post.

Here is the most relevant excerpt:

A safe harbor is a provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule. It is usually found in connection with a vaguer, overall standard. For example, in the context of a statute that requires drivers to "not drive recklessly," a clause specifying that "driving under 25 miles per hour will be conclusively deemed not to constitute reckless driving" is a "safe harbor." Analogously, "unsafe harbors" may be employed to describe conduct that will be deemed to violate the rule. In the above reckless-driving context, a clause saying that "driving over 90 miles per hour will be conclusively deemed to constitute reckless driving" would be an "unsafe harbor." In this example, driving between 25 miles per hour and 90 miles per hour would fall outside of either a safe harbor or an unsafe harbor, and would thus be left to be judged according to the vague "reckless" standard.


Notice that anything not contained in a "safe harbor" or in a "unsafe harbor" is left to the original application of the vague statute. This is standard, and well recognized legal construct in these cases.

I don't even have a wiki account and certainly have not been modify this page.

If someone wants to put forth the construct that safe harbors make all other conduct more easy to prosecute, but can't find any examples in case law, perhaps they could at least find something in Blacks, or another law dictionary, or any other objective reference to back up such a unique view of how statute works.

To be paranoid that by making something explicitly legal, everything else is illegal is to undermine the very principle of incrementalism that has a proven, 30 year track record of success in regaining our RsKBA in both Utah and across the nation.

There is room for honest disagreement. But my goodness, when it comes to actual effect of statute could be base it on something more than wild speculation and paranoia unsupported by any history, case law, or even accepted references or experts on the matter?

I'm not debating whether people should or should not OC slung rifles. THAT is a subject open to personal opinions. I'm discussing the actual effect of black letter language in Utah courts where we have a long history.

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Re: HB 276 just passed the house

Postby brainoncapitalist » Tue 11 Mar 2014 2:40 pm

DaKnife wrote:Email sent to my Senator asking for that dangerous language to be removed. Despite Charles's lengthy expositions on why this isn't bad language I disagree. We've all seen time and again when police and prosecutors twist the very specific verbiage of the laws in order to try to prosecute individuals. And as in the copied alert, the specific identification of "Holstered or encased" in this bill leaves open the implication that any un-holstered or un-encased weapon (most common example being safely slung rifles) are in fact subject to Disorderly Conduct Charges.

Give an OEO this bill signed into law and you will see people carrying slung rifles charged with Disorderly Conduct.


I can see this happening as well. Afterall, this kind of interpretation of law is already happening on every State University campus in the State where they interpret needing a concealed carry license in order to carry on campus to mean that it must be concealed, even though there is nowhere in law where this is stated.
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Re: HB 276 just passed the house

Postby brainoncapitalist » Tue 11 Mar 2014 2:48 pm

I think I still support this law because of the reasons Charles has stated. OEO's will always be OEO's. What matters is what the courts and prosecutors think.
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Re: HB 276 just passed the house

Postby bagpiper » Tue 11 Mar 2014 3:04 pm

brainoncapitalist wrote:I think I still support this law because of the reasons Charles has stated. OEO's will always be OEO's. What matters is what the courts and prosecutors think.


Bingo.

So far as I know, we've yet to have a single conviction for OCing on a college campus in Utah by a person who has the permit required because colleges are part of our State GFSZ law. Yes, college police and admins do their best to intimidate people into covering up. And sooner or later it may get tested in court. But to date, I'm not aware of any convictions, nor even formal charges brought in these cases.

I suspect that no few anti-gun college admins are keeping DoC in their back pocket and/or hoping that the next guy who OCs can be goaded into escalating his behavior where the formal charges and conviction can be based on something other than the actually OCing of the gun, but which OCing can be tied in publicity statements and political efforts to the actual illegal conduct such as DoC, or assaulting a cop, or disrupting school activities or something else.

Protecting OCers of holstered or encased guns against DoC will go a long way to defanging one of the largest practical threats to being able to OC in public for the vast majority of those who do OC (or even casually CC), while doing nothing to harm the small minority who don't use a holster or case.

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Re: HB 276 just passed the house

Postby bagpiper » Tue 11 Mar 2014 3:15 pm

The latest GOUtah! Alert on HB 276.


TODAY’S TAKE FIVE MAKE FIVE* ACTION ITEM

Please contact your Utah State Senator today and ask him to SUPPORT HB 276, the disorderly conduct bill, without any amendments.

Here’s a pre-written letter you may use (fill in the blanks, sign, and send via e-mail or fax), including a brief subject heading. Senators at this stage of the game often just glance at the subject heading of e-mails.

Pre-written letter:

Subject: Please SUPPORT Curt Oda’s disorderly conduct bill HB 276

Dear Sen. ________________:

As one of your constituents, I encourage you to SUPPORT HB 276 (Curt Oda’s disorderly conduct bill) and to oppose any amendments to that bill. I also encourage you to contact members of the Senate leadership and ask them to bring HB 276 to the floor for a vote as soon as possible. Thanks for taking time to consider my opinion.

Sincerely,




Alternatively, you can leave a message for your senator at the Senate switchboard during business hours. Your message will get transcribed and sent electronically to your senator. Keep your message brief, such as:

“Please vote FOR Curt Oda’s disorderly conduct bill HB 276 without amendments”

To find your State Senator and his e-mail addresses, click on the following link:

http://le.utah.gov/GIS/findDistrict.jsp

To send a fax or to leave a phone message for your State Senator:

Senate Switchboard: (801) 538-1035
Senate Fax: (801) 326-1475

In addition, please send a brief polite message to Senate President Wayne Niederhauser and encourage him to expedite HB 276 to the floor of the Senate for a vote. We suspect that Sen. Niederhauser has interns reading his e-mail at this point who will tabulate how many messages he gets in favor of and opposed to each bill, so it’s good if he can receive a large number of very brief and polite messages supporting HB 276.

Sen. Niederhauser’s e-mail: [email protected]




DISORDERLY CONDUCT BILL UPDATE

GOUtah! strongly supports HB 276, Rep. Curt Oda’s disorderly conduct bill, as-is without any changes.

This bill passed in the House yesterday by a wide margin and is now in the Senate. At this stage of the game, bills don’t go through committee in the Senate if they’ve already passed the House. It’s up to the Senate leadership to decide which bills to bring to the floor of the Senate for a vote. Senate leadership places bills in a given order to be heard, and can promote them closer to the front of the line or put them at the back of the line at any time. That’s why you should ask your own State Senator to encourage members of Senate leadership to expedite the bill to the floor. See the action item above for details.

Here is a link to the official webpage for HB 276, including the text and latest status of the bill:

http://le.utah.gov/~2014/bills/static/HB0276.html




FREEDOM TO DISAGREE

Gun-rights activists are free to disagree on whether a given piece of legislation is good or bad. We at GOUtah! have our point of view on various bills and we will try to persuade you to take action for or against each bill, but we respect your right to disagree with us. We are, after all, big advocates of liberty, and liberty includes the freedom to peaceably disagree with anyone's opinion. And it also includes the freedom to advocate one's point of view and try to persuade others to adopt that point of view, as we at GOUtah! continually endeavor to do.

Some of you may be receiving alerts from a group called "UT Gun Rights" that’s trying to defeat HB 276, the disorderly conduct bill — a bill that GOUtah! strongly supports. We read an alert sent out by that group today to see whether we had missed something about HB 276 or whether we were interpreting the text of the bill incorrectly. That group’s alert contained a lengthy argument against HB 276 including transcripts of “secret conversations”, opinions expressed by legislators, ad hominem attacks against various individuals and groups, and at least one implicit interpretation of judicial precedent that we find highly questionable. Upon careful reading of the text of that group’s alert we couldn’t find a single argument against HB 276 that actually holds any water in our opinion. We'd be happy to publicly debate any member of the leadership of UT Gun Rights about HB 276, but we've searched the group's website and haven't been able to find the name(s) of anyone claiming to be involved in the leadership or decision-making functions of that organization.

GOUtah!’s analysis of HB 276 is based on our reading of the actual text of the bill combined with our layman’s analysis of judicial precedent (i.e. how courts have repeatedly interpreted certain standard legal constructs such as “reasonable person”). If HB 276 passes and gets signed into law, these are the only sorts of things that will count when the law gets applied in the real world of policemen, attorneys, and judges. “Secret conversations” between lobbyists and legislators and even nerve-grating public statements made by legislators trying to pass a bill won’t count for squat.

Our interpretation of HB 276 is that it will greatly improve how the Utah Code and the courts and the police treat people who legally and openly carry holstered or encased firearms in public, without in any way worsening the treatment of people who legally and openly carry a firearm that is neither holstered nor encased. Two steps forward. No steps backward.



Charles Hardy
GOUtah!
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Re: HB 276 just passed the house

Postby LibertyNut » Tue 11 Mar 2014 4:07 pm

I saw Charles' post here and made the mentioned email contacts before the GOUtah alert even arrived in my inbox. I wondered for a minute why I had not received an alert, but now it's a moot point.

Talking with people at work, I'm frequently disheartened by the number of people that make no effort whatsoever to express their views to their elected representatives at either the state or federal level, but following the threads on this forum maintains my glimmer of hope that there are some who take enough initiative to be heard, and to help to inform others, whether or not the others choose to act.
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Re: HB 276 just passed the house

Postby gravedancer » Tue 11 Mar 2014 4:26 pm

Car Knocker wrote:Thanks for posting the text of the message. If nothing else, the vituperative rhetoric therein will ensure I keep my distance from that sophomoric group.


My thoughts exactly.... that "news article" seems more like some d-bags personal attack on Clark and a lot of other people, without much in the way of facts to back it up.
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Re: HB 276 just passed the house

Postby gravedancer » Tue 11 Mar 2014 4:32 pm

DaKnife wrote:Email sent to my Senator asking for that dangerous language to be removed. Despite Charles's lengthy expositions on why this isn't bad language I disagree. We've all seen time and again when police and prosecutors twist the very specific verbiage of the laws in order to try to prosecute individuals. And as in the copied alert, the specific identification of "Holstered or encased" in this bill leaves open the implication that any un-holstered or un-encased weapon (most common example being safely slung rifles) are in fact subject to Disorderly Conduct Charges.

Give an OEO this bill signed into law and you will see people carrying slung rifles charged with Disorderly Conduct.


Most OEO's and many public officials (not to mention the masses at large) already seem to believe that an openly carried handgun, even holstered, is disorderly conduct anyway. How is having language that specifically says one type of behavior is not DC, while making no mention of other types of behavior... a bad thing ?

As for the last part of the statement...I know im in the minority here but I actually believe that carrying a long gun into the grocery store SHOULD be considered disorderly conduct. It has less viability than a pistol, open or concealed, for self defense. In most publicized cases where a long gun was openly carried, the primary reason for doing so appears to have been to garner attention for the carrier, so they can get their 15 minutes of fame by becoming a youtube warrior.
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Re: HB 276 just passed the house

Postby Luv10mm » Wed 12 Mar 2014 7:07 am

gravedancer wrote:As for the last part of the statement...I know im in the minority here but I actually believe that carrying a long gun into the grocery store SHOULD be considered disorderly conduct. It has less viability than a pistol, open or concealed, for self defense. In most publicized cases where a long gun was openly carried, the primary reason for doing so appears to have been to garner attention for the carrier, so they can get their 15 minutes of fame by becoming a youtube warrior.


I can understand the sentiment. For me, what it comes down to is - do I feel said behavior/act is so disagreeable that I'm okay with fining/imprisoning someone who does it, for that sole reason? In the case of open carry of a long gun, my answer is no, but I respect those who say yes.

OT, my interpretation of HB 276 is overall positive, and in line with USSC/GOUtah!. I say get it passed and see what happens.
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