HB 276 just passed the house

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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 1:05 pm

UtahJarhead wrote:...the representative that introduced this bill did so SPECIFICALLY BECAUSE he said the JC Penney rifle carrier wasn't guilty of a crime and he should have been....

Yep. True.

KSL.com wrote:A new bill would define when someone could be charged with disorderly conduct when they are openly carrying a gun in Utah. Rep. Paul Ray, R-Clinton, says it came after a picture surfaced last year of a man with a rifle across his back at a JC Penney in northern Utah.

Ray said his bill states guns have to be holstered.

"So if someone is carrying a gun around in their hand they can be cited," he said. "This bill really clarifies things and gives them an outline to go by of in this situation you can write a ticket and in this situation you can't." (http://www.ksl.com/?sid=28230755)

HeraldExtra.com wrote:A state lawmaker says a man who carried a rifle into a J.C. Penney in Riverdale a year ago could have been charged with disorderly conduct under a bill he plans to introduce.

The proposal by Rep. Paul Ray, R-Clinton, would define when someone could be charged with disorderly conduct if they're openly carrying a gun in the state.

Ray said the measure would require handguns to be holstered and bar firearms from being openly displayed in a person's hands or on their body.

He added that the bill stems from online photos of a man who walked into the J.C. Penney in Riverdale in January 2013 with an AR-15 slung over his shoulder and a Glock 19c on his hip. The photos posted on Facebook received hundreds of comments and were shared more than 1,000 times.

"If they strap a rifle onto their back and walk into J.C. Penney, [they] can be cited for disorderly [under the bill], which you ought to be," Ray told KSL. "But if you have your handgun holstered then you are OK." (http://www.heraldextra.com/news/state-a ... 22bc5.html)

FOX13Now.com wrote:A new bill that will be introduced in the Utah State Legislature this year will make it tougher for police officers to charge someone with disorderly conduct if they are openly carrying a firearm.

“The problem that we’ve had is some police agencies have used the disorderly conduct law, in order to use it for gun control,” Rep. Paul Ray, R-Clearfield, said in an interview with FOX 13 News.

Ray said his bill will clarify when and where police could cite someone for disorderly conduct if they are openly carrying their weapon.

“The purpose of this bill is to say, if you are legally carrying a gun and you’re meeting all the parameters that is required, you cannot be cited for disorderly conduct,” he said.

There have been two incidents in the past that have drawn public scrutiny about Utah’s open carry law. In 2011, a man was cited for openly carrying a firearm at Orem’s University Mall. Last year, Joseph Kelley carried a rifle over his back in a Riverdale J.C. Penney. (http://www.fox13now.com/2014/01/15/new- ... open-carry)

So, the expressed intent of the bill was to punish those who, until this bill was passed, possessed unconcealed firearms legally. I would ask if my presumption is wrong, but, because the original sponsor admits as much, there is no need to do so. And, just so I get this right, Second Amendment-friendly legislators supported this?
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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 1:19 pm

brainoncapitalist wrote:Any thoughts on the amendment, Charles? Does this weaken or strengthen the bill and in what way? Is it still a good bill, from your perspective?


In total I think it is either neutral or a small benefit. It was presented as a minor and necessary technical change. The reasonable man must now believe you are OCing "with criminal intent" rather than allowing him to also believe you are OCing "in violation of law". As a result the sentence about "...the believe must not be based on a mistaken understanding of law..." was removed. Any reasonable man standard includes a proper understanding of law. Which is aspect of the reasonable man standard that sets this fictional man apart from "an average" or "typical" man. The "reasonable man" test for a jury/judge must base his legal interpretation on a proper understanding of law and with that understanding determine if the conduct in question was reasonable.

I'm hoping the Governor signs it. I believe we will see the improvements we hope for without the damages to unholsted guns some are predicting.

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Re: HB 276 just passed the house

Postby UtahJarhead » Thu 13 Mar 2014 1:27 pm

David, why the snark? I've only ever treated you with respect. I'd figured I'd get like in kind.

The intent of the law is to punish someone that carries a long gun unholstered, which is the most common method of carrying a rifle. I'm not saying the entire bill is crap because it's not. It's PURPOSE is because he saw a lawful activity that he didn't like and wanted a way to punish those that did so. Any time a person carries a long gun without a holster will not have an easy time proving that it's a "legitimate purpose." I didn't realize that there was an issue with open carriers being harassed with Disorderly Conduct in the past.

While I'm grateful that this is being spelled out for holstered open carry, it still feels like a solution in search of a problem.

The law is going to pass, so it's not like my statement is going to make any kind of difference. I'm just stating my reasons for opposing it.
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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 1:31 pm

David Nelson wrote:So, the expressed intent of the bill was to punish those who, until this bill was passed, possessed unconcealed firearms legally. I would ask if my presumption is wrong, but, because the original sponsor admits as much, there is no need to do so. And, just so I get this right, Second Amendment-friendly legislators supported this?


And turns out the original sponsor was unable or unwilling to get the bill passed and another legislator took over the bill and then amended it. So the original, expressed intent is going to be less than meaningless in any court. Do you realize how often legislators get language from leg research that does not actually put into effect their expressed intent? It is common and one of the bigger problems we deal with in getting pro-RsKBA legislation passed. So whatever Paul Ray's intent (expressed and/or actual, either of which might have been different than what the media ended up reporting), it is the black letter law of the bill that will matter. Legislative intent only becomes an issue when the black letter language is not clear. And should that happen here, it will be whatever intent was expressed after Oda took over and amended the bill that will matter.

But just so I get it right, known gun grabbing legislators voted against a bill that you believe is very hostile to RsKBA?

Let's see. Every credible pro-RsKBA organization operating this year (NRA, USSC, GOUtah!) believes this bill is good for RsKBA. That support includes the personal support of Hardy, Engen, Aposhian, and even Vilos among others. Not a single pro-RsKBA legislator voted against the bill. And every vote against the bill was cast by legislators with a long and well known history of being overtly hostile to our RsKBA.

Sometimes I get reminded of something my high school band director told us. She explained that when you look across a 100 member marching band and see 99 kids on the right foot, it is very uncommon for the kid on the left foot to be correct. I'm not saying it never happens. I'm just pointing out it is rare.

When the only claimed "pro-gun" group that opposes this bill is the "Utah Gun Rights" who use the kind of childish, offensive language and tactics they do, one is hard pressed to convince me that they are the proverbial lone prophet crying in the wilderness.

If you want me to explain pro-gun legislators voting for this, I will ask you to explain gun-hating legislators voting against it.

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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 1:32 pm

UtahJarhead wrote:David, why the snark? I've only ever treated you with respect. I'd figured I'd get like in kind.

The intent of the law is to punish someone that carries a long gun unholstered, which is the most common method of carrying a rifle. I'm not saying the entire bill is crap because it's not. It's PURPOSE is because he saw a lawful activity that he didn't like and wanted a way to punish those that did so. Any time a person carries a long gun without a holster will not have an easy time proving that it's a "legitimate purpose." I didn't realize that there was an issue with open carriers being harassed with Disorderly Conduct in the past.

While I'm grateful that this is being spelled out for holstered open carry, it still feels like a solution in search of a problem.

The law is going to pass, so it's not like my statement is going to make any kind of difference. I'm just stating my reasons for opposing it.

None directed at you, UtahJarhead. In fact, I was agreeing with your comments. I apologize if I insulted you. However, while I am also grateful that the bill finally defines concealed or unconcealed possession is lawful, I amn't happy with the seemingly unnecessary condition, and expressed spite, by its original sponsor.
Last edited by David Nelson on Thu 13 Mar 2014 1:46 pm, edited 1 time in total.
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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 1:42 pm

UtahJarhead wrote:The intent of the law is to punish someone that carries a long gun unholstered, which is the most common method of carrying a rifle. I'm not saying the entire bill is crap because it's not. It's PURPOSE is because he saw a lawful activity that he didn't like and wanted a way to punish those that did so. Any time a person carries a long gun without a holster will not have an easy time proving that it's a "legitimate purpose." I didn't realize that there was an issue with open carriers being harassed with Disorderly Conduct in the past.


To clarify, the media reported that Paul Ray's intent was to criminalize unholstered OC while protecting holstered OC. We might debate on what his expressed or actual intent really was. But I don't put excessive stock in media reports alone. I've seen my own words twisted almost beyond recognition too many times to think that the same thing might not happen to others, especially on somewhat complex issues like this could be.

In any case, whether he was unable or unwilling to move forward with the bill, Rep. Ray surrendered the bill to Rep. Curt Oda who amended it and in fairly short order got it passed. Legislative intent is only an issue if the black letter of the law is not clear. This is a classic safe harbor and I don't see where there is much room for question on effect. So intent won't matter in court.

Creation of a safe harbor does not create an unsafe harbor. Have you read the "safe harbor" entry on Wiki I referenced?

A cop will do what a cop will do. But I will be shocked if any prosecutor actually tries to argue that the safe harbor for holstered creates an unsafe harbor for unholstered.

As for the UoU and the whole concealed thing, they have latched onto this simply because it is all they have left. Back when State preemption was being strengthened to explicitly apply to the U, some who opposed that actually suggested that those who wanted to carry should be required (or be "man enough") to OC so that everyone would know who to avoid. They clearly hoped that social stigma would prevent anyone carrying in that case. Having lost and with CC definitely legal, they have switched sides and now want to force carriers into the closet rather than normalizing the possession of self-defense guns on campus. Even with their very creative reading of the law, how many convictions have we had? Yes, some folks have been harassed and intimidated. But even those claiming to espouse this theory of "must be concealed" have been very reticent to actually go to court. My hope is that we don't end up with some overly exuberant, but ignorant person thinking they'll be a test case without the prior, necessary preparations to present a very clean case and we end up with a bad ruling based on legally irrelevant but emotionally compelling circumstances. I applaud the careful, thoughtful, and methodical approach Utah_Patriot is taking on this issue.

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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 1:50 pm

David Nelson wrote:
I amn't happy with the seemingly unnecessary, and expressed spite, by its original sponsor.


I'm not a mind reader and don't know Rep. Ray's real intent. Maybe he did intent to criminalize OCing a slung rifle. Maybe that is the reason he was not willing or able to advance the bill once it became clear what the effect of the language in the bill is.

Or maybe he expressed something poorly and the media mis-interpreted and mis-reported his words.

What I do know for sure is that the following legislators voted against a bill that I consider to be pro-RsKBA:

Arent, P. Briscoe, J. Chavez-Houck, R. Cosgrove, T. Edwards, R.
Fisher, Janice Hemingway, L. King, B. McIff, K. McKell, M.
Moss, C. Peterson, J. Poulson, M. Romero, A. Seelig, J.
Snow, V. L. Tanner, E.

Dabakis, J.


The intent and words of Paul Ray will have very little if any effect on how the bill is applied by the courts. The VOTES are what really matter.

A guy with great intent who votes against me and my interests has still voted against me. A guy who votes for me for the basest and worst reasons, has still voted for me.

Focus on spite if you want to. I will focus on who voted against my rights. KInd of telling that to a person, everyone of them is a Democrat.

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Re: HB 276 just passed the house

Postby brainoncapitalist » Thu 13 Mar 2014 3:31 pm

This whole debate about whether or not explicitly carving out a 'safe harbor' automatically also carves out an unsafe harbor for anything else, reminds me of the debate had among the Founders regarding the Bill of Rights. There were many who thought that explicitly listing a bunch of rights government was prohibited from violating would lead to people, especially those in government, to believe that those were the ONLY rights they could not violate, even with the 9th and 10th Amendments. Unfortunately, they were correct in this belief and today we've gotten to the point where we might as well not HAVE the 9th and 10th amendments. HOWEVER, I don't know many today who would say that those people had it right and we would be better off without the Bill of Rights. Imagine if the Bill of Rights had not been included. You can bet your hiney that we wouldn't enjoy any semblance of the right to keep and bear arms today, even though the 2nd Amendment is NOT what gives us that right.

Similarly, I can see both sides of this debate about a safe harbor for holstered firearms and whether or not it is a good thing.
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Re: HB 276 just passed the house

Postby David Nelson » Thu 13 Mar 2014 3:44 pm

brainoncapitalist wrote:...Imagine if the Bill of Rights had not been included. You can bet your hiney that we wouldn't enjoy any semblance of the right to keep and bear arms today, even though the 2nd Amendment is NOT what gives us that right....

The right to keep and bear arms was included in several constitutions of the various states in the 1770s and 1780s; and a few more broadly so than the federal version. Unless future members of Congress would have restricted or prohibited such state constitutional provisions through the federal Constitution or law, it is likely that the provisions would have endured and influenced similar provisions by other and new states as they were created. So, I amn't so certain that, absent the Bill of Rights, the RKBA would be remarkably different than it is. We would probably still be debating the "general welfare" and "commerce" clauses, so that wouldn't immediately change the status quo of our central government. In fact, much of the idea of the RKBA was developed among the states organically, anyway, insofar was the Second Amendment wasn't incorporated under the Fourteenth Amendment until 2010. The various wordings of the state provisions suggest that the states adopted what worked for them, and were less influenced by the federal "model."
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Re: HB 276 just passed the house

Postby bagpiper » Thu 13 Mar 2014 6:42 pm

David Nelson wrote:
brainoncapitalist wrote:...Imagine if the Bill of Rights had not been included. You can bet your hiney that we wouldn't enjoy any semblance of the right to keep and bear arms today, even though the 2nd Amendment is NOT what gives us that right....


...

So, I amn't so certain that, absent the Bill of Rights, the RKBA would be remarkably different than it is. We would probably still be debating the "general welfare" and "commerce" clauses, so that wouldn't immediately change the status quo of our central government. In fact, much of the idea of the RKBA was developed among the states organically, anyway, insofar was the Second Amendment wasn't incorporated under the Fourteenth Amendment until 2010. The various wordings of the state provisions suggest that the states adopted what worked for them, and were less influenced by the federal "model."


It is interesting that of the first 8 amendments of the bill of rights dealing with individual, enumerated rights, only four really deal with rights of the general population:
The 1st amendment protects the free exercise of religion, freedom of the speech, press, petition, and assembly/association;

The 2nd amendment protects RsKBA;

3rd amendment protects us against having to quarter troops except in time of war (and frankly, quartering a couple of soldiers would probably be way cheaper for most of us than the taxes we are paying to keep them stationed around the world, but that is another matter). Has never been serious infringed that I'm aware of.

And the 7th amendment: Jury trial and $20 limit for civil cases and facts determined by the jury not subject to re-examination. Ok this one applies to everyone involved in a civil matter which is just your neighbor instead of your government taking you to court.


The other 4 amendments deal mostly with rights afforded to those accused or even convicted of a crime.

4th amendment: Guarantees security in our persons, houses, papers, and effects and requires warrants for searches in most cases.

Sure, sure. We all want our privacy. But when push comes to shove, the courts have never much penalized government agents for violating privacy, they've just disallowed evidence and an obviously guilty man gets set lose on society so that society demands government play by the rules next time. And if government can't use private data against you in some way, the effect of government having that data is dramatically reduced.

5th amendment: Right against self incrimination, requirement for indictment, no double jeopardy.

All of these are of virtually no effect until you are accused of or at least being investigated for a crime.

5th amendment also requires compensation for any taking of property property for public use. This one does apply to the general populace.

6th amendment: Jury trial, speedy trial, location of trial, confront witnesses against and compel witnesses for.

Only matters for someone being tried for a crime.

8th amendment: Bail, excessive fines, and cruel and unusual punishment.

The 3rd amendment has never been serious infringed that I recall. The 2nd amendment was almost entirely ignored until 4 years ago (not shocking, the 1st amendment was largely ignored until the early 1900s, we are a young nation still working things out). And I'm not sure how much practical effect the 7th amendment has had. So of the 4 amendments dealing with rights that affect us all, virtually all judicial attention has been to the 1st amendment, while the other 3 have had very little play.

It is the 4 amendments protecting the rights of persons accused or convicted of crimes that have had the most attention over our history thus far.

So one might argue that absent the bill of rights, for those of us not prone to get charged with crimes, life would not be much different. OTOH, absent the protections for the accused and the resultant difficulty of getting convictions, how many more of us might have found ourselves prone to get charged with crimes? Nixon had his enemies list as did Hoover. Look at Obama and the IRS just to provide bi partisan balance.

The history of SCOTUS rulings dealing with the protections in the 1st amendment are enough to convince me that we'd be in a very different nation had those protections not been committed to writing.

OTOH, if one really wants to play with alternative constitutional histories, consider on the effects of not passing the 16th and 17th amendments (income tax and popular election of senators). Imagine if the general welfare clause had be reworded to be more explicitly a limitation on all other powers rather than so easily mis-interpreted as the "elastic clause" to allow an unlimited expansion of powers beyond those specifically enumerated.

It was in the "penumbra" of the 4th amendment that the SCOTUS found cause to limit the ability of society/government to prevent most elective abortions. Ditto to prevent interference in birth control, first for married women and now for children. And, to prevent enforcement of statutes criminalizing private sexual conduct that offends the morality or sensibilities of the majority. And notice how this amendment that seems intended primarily to prevent criminal prosecutions, has had dramatic effect for so many in society.

No, the bill of rights has worked well. And neither the courts nor the congress have much tried to claim that lacking specific enumeration any particular right was not a right. The history of the late 20th and early 21st centuries seems to be just the opposite: an expansion of "rights" beyond what any sensible reading of the framers' words and intents would ever convey. While rights have traditionally meant being left alone, "rights" now include the ability to force others to labor for your benefit.

What has really happened is exactly what de Toqueville predicted: we sold out the notion of a government limited to specific enumerated powers in favor of cheap, easy money rather than living within our means. There is also the problem of forcing our sense of proper social order onto our current State rather than voting with our feet and living where majority views mirror our own. And by "our" I mean mostly liberal. At least in modern times, conservatives have been fairly content to leave liberal States to do as they see fit, even as liberals have used the courts to force a single view onto every State including those with more conservative leanings.

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Re: HB 276 just passed the house

Postby JoeSparky » Thu 13 Mar 2014 10:52 pm

An additional thought to those of David Nelson above...

Said Officer Barney Fife, the epitome of an OPINION ENFORCEMENT OFFICER, is LOOKING for a reason to charge one with ANYTHING and sees this and your SLUNG LONG GUN is NOT holstered or encased and HE WILL CITE YOU with Disorderly Conduct.
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Re: HB 276 just passed the house

Postby Luv10mm » Fri 14 Mar 2014 7:05 am

JoeSparky wrote:Said Officer Barney Fife, the epitome of an OPINION ENFORCEMENT OFFICER, is LOOKING for a reason to charge one with ANYTHING and sees this and your SLUNG LONG GUN is NOT holstered or encased and HE WILL CITE YOU with Disorderly Conduct.


If the OEO is of that mindset anyway, then won't he cite you with DoC whether or not this bill passes? OEOs don't seem too concerned with the actual laws in the first place.

I guess we will see whether this leads to more open long gun carry harassment/charges. :dunno:
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Re: HB 276 just passed the house

Postby DaKnife » Fri 14 Mar 2014 11:11 am

Oh they worry about the laws alright. They worry that they understand certain laws well enough to be able to cite you in such a way that a city prosecutor will prosecute the citation and a Justice Court will rule against you in order to generate revenue for the city. OEO's aren't too concerned with nitty gritty details of laws they don't try to regularly use as blugeons of "Justice". But DoC and similar catch alls they make sure to know in order to be able to cite you for looking at them funny.

So they will have to acknowledge that for the most part having a handgun on you is no longer grounds for DoC. But be walking up the street to the State Capitol building for a 2A rally with your 10/22 slung on your back and he's gonna know you are fair game.

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Re: HB 276 just passed the house

Postby DaKnife » Fri 14 Mar 2014 11:14 am

Yes this bill does get to be called a win because it does protect the vast majority of carried weapons. But it still has a very big flaw.

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Re: HB 276 just passed the house

Postby bagpiper » Fri 14 Mar 2014 11:57 am

DaKnife wrote:So they will have to acknowledge that for the most part having a handgun on you is no longer grounds for DoC. But be walking up the street to the State Capitol building for a 2A rally with your 10/22 slung on your back and he's gonna know you are fair game.


No more or less so than before the bill was passed.

The bill gets us 95% of what we want. That it wasn't able to get the last 5% doesn't mean it has made things any worse for that 5%. (If I believed for one moment it did make things worse, I could not have supported the bill. I advocate incrementalism. I reject selling out any segment of the gun community to benefit another.)

And at this point, I suspect only time will be able to convince those who have claimed otherwise.

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