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State Capitol Week in Review

Updated: January 12, 2018

From State Senator Jimmy Hickey Jr.

In a letter to the State Police, the governor said that open carry of a firearm is not a violation of state gun laws, as long as there is no intent to use the weapon unlawfully.

This is the second time since 2015 that a state constitutional officer has written that open carry is legal. An attorney general’s opinion from 2015 says that “in general merely possessing a handgun on your person or in your vehicle does not violate” statutes about firearm possession.

In response to the governor’s letter, the director of the State Police sent a memo to troop commanders saying that “openly carrying a firearm does not alone provide probable cause for arrest.”

The governor, a former U.S. Attorney, and the current state attorney general both cite Act 746 of 2013, which spells out when it is permissible to carry a firearm on a journey.

The attorney general’s opinion was issued August 28, 2015 and is 17 pages. It is number 2015-064. It outlines the legal changes made by Act 746.

Although open carry is legal, someone who carries a handgun should remember that the police may lawfully question them about their purpose. The officer may detain the person carrying the firearm due to suspicions based on the persons’ demeanor and activities, or based on information supplied by a third person, or because of known criminal activity nearby.

Private property owners are still entitled to keep firearms off their property, and a person carrying a handgun can be prosecuted for criminal trespass if they enter that property against the owner’s wishes.

There are still prohibitions against carrying a firearm into public buildings such as jails and courtrooms.

Act 746 changed state law so that there is no longer a presumption that possession of a loaded handgun indicates any intent to commit an unlawful act, according to the attorney general’s opinion. The burden of proof is now on the prosecution to prove that the person carrying the gun intended to do something against the law.

The opinion states that Act 746 does not overturn any rules affecting concealed-carry permit holders, and laws requiring concealed carry permits are still in full force and effect. A person may not carry a concealed handgun unless he has a concealed-carry license. In fact, the opinion says, the courts would likely consider flouting of concealed-carry laws to be a presumption of intent to do something unlawful.

The opinion discusses the “journey exception,” which allows you to carry a firearm in your vehicle either in the open or concealed, as long as you have no intent to use it unlawfully. The journey exception does not override other gun laws, for example, you cannot bring a gun in your vehicle and park it on the grounds of a prison just because you’re on a journey.

Once the gun owner takes it out of the vehicle, the journey exception no longer applies but the person may lawfully carry the gun as long as he or she has no intent to use it unlawfully against another person. If the person conceals it while carrying it, he or she must have a concealed-carry license.

Act 746 passed by a vote of 82-to-1 in the House of Representatives and 28-to-0 in the Senate.