Kansas CCW Legal Opinion

[Robert J McElwain]

The following is part of the Kansas Bill of Rights. Could someone with a legal mind tell me if item #4 doesn't give Kansans the right to carry concealed without further legal changes? It looks to me that, at this point, we have the same rights as citizens in the State of Vermont.

Am I missing something?


*********************************************
CONSTITUTION OF THE STATE OF KANSAS
(as amended to 1975)

PREAMBLE

We, the people of Kansas, grateful to Almighty God for our
civil and religious privileges, in order to insure the full
enjoyment of our rights as American citizens, do ordain and
establish this constitution of the state of Kansas, with the
following boundaries, to wit: Beginning at a point on the
western boundary of the state of Missouri, where the thirty-
seventh parallel of north latitude crosses the same; thence
running west on said parallel to the twenty-fifth meridian
of longitude west from Washington; thence north on said meridian to the fortieth parallel of north latitude; thence east on said parallel to the western boundary of the state of Missouri; thence south with the western boundary of said state to the place of beginning.

BILL OF RIGHTS

Sec. 1. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

Sec. 2. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.

Sec. 3. The people have the right to assemble, in a peaceable manner, to consult for their common good, to instruct their representatives, and to petition the government, or any department thereof, for the redress of grievances.

Sec. 4. The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.
*********************************************

Bob

 

[ArmedBear]

I don't believe that these words guarantee the right to carry concealed.

Ohio had a similar situation. A judge ruled that concealed carry was not guaranteed because the citizen had the option of carrying openly. CCW activists started carrying openly. Soon, the state passed "shall issue" legislation because ultimately, if the Constitution guarantees the right to carry, the politicians would rather have the guns hidden from view.

Not a bad tactic, really.

 

[cropcirclewalker]

I don't believe that these words guarantee the right to carry concealed.

Semantic gymnastics.

Most cities in KS prohibit the open carry of firearms.

Which is it?

Persons in Rural KS (those not within the limits of most municipalities) are allowed to carry openly.

Sec. 4. The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Is thus transmorgrified into, "the people have permission to openly carry arms if they are out in the country where the deer and the antelope play (The state song), and standing armies in time of peace are dangerous to liberty so we will continually be at war."

 

[Robert J McElwain]

Semantic gymnastics.

Most cities in KS prohibit the open carry of firearms.

Which is it?"

It would seem that the Kansas Bill of Rights transcends local ordinances. I think the game is that local jurisdictions can pass any kind of law they want and it stands until challenged in court.

Bob

 

[ArmedBear]

It would seem that the Kansas Bill of Rights transcends local ordinances. I think the game is that local jurisdictions can pass any kind of law they want and it stands until challenged in court.

Bob

That's what they did in Ohio. And a judge confirmed that open carry was, in fact, allowed.

It would be far easier to convince a judge that open carry must be allowed where it is currently banned. Laws against carrying a concealed weapon are generally held to be about banning behavior, not rights. Laws against bearing arms in general might be construed to be infringing on rights.

For example, the city can, without violating Freedom of Speech, enforce noise ordinances. The right to free expression does not guarantee the right to have a 50,000 watt acoustic tower blasting your speech at 3 AM. In the same way, the right to bear arms does not mean you necessarily have the right to hide said arms from view.

Again, in Ohio, the courts said that open carry was sufficient for the purposes of constitutional rights. Only then did the politicians decide that, since they didn't love the idea of people with holsters running around in cities, they'd allow concealed carry instead.

It does seem like the same strategy might work in Kansas, with some luck.

 

[insidious_calm]

Except.....

....that it has been challenged and the court ruled that it is a collective right that does not apply to individuals. Therefore there really is no right to bear arms in Kansas unless you are in government service.

My personal opinion is that it does indeed provide a right to concealed carry. Essentially the same argument applied in Ohio, that your defense may be provided for by simply carrying a firearm, whilst security may require concealing your defense from the view of others. I have linked and provided the text of the cases in another thread on THR. No honest person could read our constitution and reach the conclusion they did in those cases.


I.C.

 

[Robert J McElwain]

....that it has been challenged and the court ruled that it is a collective right that does not apply to individuals. Therefore there really is no right to bear arms in Kansas unless you are in government service.

My personal opinion is that it does indeed provide a right to concealed carry. Essentially the same argument applied in Ohio, that your defense may be provided for by simply carrying a firearm, whilst security may require concealing your defense from the view of others. I have linked and provided the text of the cases in another thread on THR. No honest person could read our constitution and reach the conclusion they did in those cases.


I.C.

Was this challenged in a Kansas court? If so, do you remember when and which court? I know this has been posited but I don't believe this argument has ever reached the SCOTUS.

Bob

 

[insidious_calm]

Robert,

Both cases that formed the foundation of the current legal climate regarding firearms in Kansas were heard by the state supreme court. You can find the links and case citations in this thread

The problem with the asking the U.S. Supreme Court to get involved is that it is extremely unlikely they would. First and foremost the prevailing question is about the State constitution. The U.S. Supreme Court reviews questions of law regarding the federal constitution. I believe it is possible for them to seize jurisdiction in a state matter, but I believe examples of such to be extremely rare. However, I am not a lawyer, nor do I play one. My opinions are worth what you paid for them.

Essentially, we are hosed until one of a couple of different things happens. We could get CCW passed at the state or even national level. State CCW seems very likely this next session. I discussed the matter again with House Speaker Doug Mays today. We could also get a federal decision defining the 2nd amendment as an individual right. We were really close to this with Emerson, but the Supremes declined to hear it. As it stands, it only affects the 5th circuit. It is promising though, that the court mentioned the Kansas case by name in Emerson as an incorrect interpretation of the 2nd and state constitution as a collective right.

Lastly, we could get a new case to present at the state level. The problem here is that you have to be charged with crime in order to do that. I doubt you find willing volunteers for it, and of the unwilling candidates, many are either less than perfect defendants, or are not willing to take the risk of a conviction and fight for their rights. Choosing instead to plead to a lesser charge. We did manage to successfully reduce concealed carry to a misdemeanor where it used to be a felony. Hopefully that will be enough convince the perfect defendant to fight should he come along.

Heres to cramming CCW down the liberals throats in '06.


I.C.