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http://www.zwire.com/site/tab2.cfm?newsid=8208278&BRD=2553&PAG=461&dept_id=506066&rfi=6
State, county gun laws out of sync
By Bill McIntyre
06/03/2003
Fauquier officials are in a showdown over how to resolve conflicting state and county gun control laws that regulate possession of firearms in local parks.
County ordinance currently prohibits guns in parks.
That means guns carried openly in an exposed and clearly visible holster, for example, are illegal in county parks. The local law also bans possession of a concealed handgun, perhaps hidden from plain view in a purse, under a jacket or beneath pants.
State law is different, very different.
Virginia code permits gun possession in parks. Individuals with a special permit to carry a concealed handgun can do so. And law-abiding adults may openly carry firearms, too, although that right is rarely exercised.
Lee District Supervisor Sharon McCamy wants to amend the county ordinance to make it comply with state code regarding concealed handgun permit holders. She was motivated to initiate the change after talking with some of her constituents.
"We need to eliminate the contradiction," she said.
But Center District Supervisor Joe Winkelmann objected to making even a minor amendment to the county's ordinance banning guns in parks.
"We have a perfectly good, court-sanctioned ordinance and that's what I want to keep," he said.
Winkelmann is willing to make some other change to allow concealed handgun permit holders park admittance, especially since state law allows it.
But the Center District supervisor renounced any actual modification to the county ordinance which bans guns in parks, because it could lead to the elimination of an open-carry restriction on firearms in Fauquier's parks.
Why?
If county officials make any change to Fauquier's park gun ban ordinance, then they could forfeit the ability to impose any local existing or future regulations on firearms possession in their own parks.
That's because the county ordinance pre-dates a 1987 General Assembly amendment restricting the ability of local governments to regulate firearms.
The 15-year-old General Assembly measure, called pre-emption, was designed to bring uniformity to firearm regulations. To assure passage, legislators also agreed to let stand, or grandfather, existing firearms ordinances, like Fauquier's provision prohibiting guns in county parks.
But if any changes are made to the local gun ordinance after 1987, then the entire local provision would be erased.
Or would it?
Court test needed?
County Attorney Paul McCulla contended that amending the county ordinance to allow concealed handgun permit holders in parks would not automatically force the county to invalidate its gun ban provision, which would essentially allow open firearm carrying in area green spaces.
"We would take the position that it would not. Although that's not yet been decided by a court," he said.
Notwithstanding a court ruling should the ordinance modification take place, McCulla said that local deputies would enforce the park gun ban on non-permit holders with guns in places like Crockett or Lake Brittle parks.
"Under the proposed change the ordinance only exempts concealed weapons carried under a valid permit," he said.
A fork in the road
McCamy and Winkelmann didn't always disagree.
In November, they both set out to make the needed changes in the county's ordinance so it would comply with state law and allow concealed handgun permit holders to be armed in parks.
But as details surrounding the consequences of such a change came to light their paths have split.
McCamy steadfastly wants to change the ordinance.
"People simply want the ability to carry handguns concealed with a permit without feeling like a criminal if they go into a park," she said.
McCamy added that the real focus should be on the concealed-carry law and making sure local laws are congruent with state laws. As for the risk that the county could surrender its local authority to restrict guns in parks, she said let the courts help sort it out.
"Let it be tested," she urged.
Winkelmann is paving a different path. He wants to direct the sheriff and the staff of the Parks and Recreation Department that concealed handgun permit holders should not be arrested or prosecuted if they are in county parks, since doing so would not violate state law.
Winkelmann worried that if the local ordinance was changed, then the county could lose its ability to regulate guns in its own parks.
"You leave yourself open to a court decision or an attorney general's opinion. You're at risk. I don't want to put the county at risk," he said.
Philip Van Cleave is president of the Newington-based Virginia Citizen's Defense League, a grassroots pro-gun organization with 1,600 members. He called Winkelmann's "nudge-and-a-wink" remedy flawed.
"It isn't the right solution. You shouldn't be telling a sworn police officer not to enforce the law because that tells them to violate their oath," he said.
Sheriff Joe Higgs explained that he has to enforce whatever the state law and county ordinances are in the book.
Regarding concealed-carry, Higgs said, "The county attorney has already sent a memo to me saying that the county ordinances yield to state code. That takes me out of the middle," he said.
The matter is scheduled for debate at the Board of Supervisor's June 16 meeting.
Bill McIntyre may be reached at [email protected].
©Times Community Newspapers 2003
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