Have you heard there is new federal legislation that will allow someone with a concealed carry permit from one state to carry in all 50 states? It actually might not be as awesome as you have heard. The purpose of this article is to dispel some of the myths associated with this proposed legislation and give an update on its status.

What is the Law & What is the Status?

H.R. 38: Concealed Carry Reciprocity Act of 2017 is a new iteration of a law that has been proposed several times over the past 6 years. In its most recent form it was introduced on January 03,

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2017 by U.S. Representative Richard Hudson (NC-08). The NRA and other gun rights organizations have been outspoken in their support of this legislation. This week (December 6th) it was voted on by the US House of Representatives and passed by a 231/198 margin. Although it has cleared the House it still has many steps to clear before it becomes law. A brief summary of the remaining procedural process is below:

  1. It will go to a Senate subcommittee to approve their version of the legislation; then
  2. It will be scheduled for a floor vote in the Senate, with the potential for a filibuster; then
  3. It would go to a joint conference committee and the two bills (House & Senate) would be “reconciled” by the committee; then
  4. The reconciled bill will need to be voted on again by both the House and Senate.  Many bills die at this stage as the two separate pieces of legislation from the two houses are often so different that they cannot be reconciled; then
  5. For the final step it goes to President Trump’s desk, who has indicated he would sign similar laws in the past.
The house version has combined two separate bills, one on national reciprocity and the FIX NICS bill.  The FIX NICS bill has widespread support among Democrats, whereas the  Concealed Carry Reciprocity Act has significantly less.

Largely due to the social media buzz surrounding it, many people in our training classes are misinformed on many aspects of this potential law (many people we speak with believe it is already a law, which is dangerous). We have received hundreds of emails and phone calls from past students asking about the “new law” and the amount of misinformation we’ve heard is alarming to us. There are some legitimate misunderstandings out there about the Concealed Carry Reciprocity Act, and we want to help clarify a few important points.

What Will the Law Do? 

Many people we speak with believe this legislation would make it so one permit would be valid in all 50 states, like a driver’s license. In fact Congressman Hudson’s own website says the following regarding the law:

“Your driver’s license works in every state, so why doesn’t your concealed carry permit?”(source)

That is absolutely not what this law will do, however, and it is important to understand what the law actually says.

The Concealed Carry Reciprocity Act of 2017 is intended to “amend title 18, United States Code, to provide a means by which non- residents of a State whose residents may carry concealed firearms may also do so in the State.”

Subsection (a) states that

a person who is not prohibited by Federal law from possessing, transporting, shipping, or receiving a firearm, who is carrying a valid identification document containing a photograph of the person, and who is carrying a valid license or permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides, may possess or carry a concealed handgun (other than a machinegun or destructive device) … in any State

AWESOME RIGHT?!? As long as I have a photo ID & concealed permit (or am from a constitutional carry state) then I’ll be able to carry in any state, what’s wrong with that???

The problem is the text of the proposed law doesn’t stop at that point. If it did, I would agree it would be a great law. Instead it goes on to create two very distinct problems.

What Are The Problems With The Law?

Problem #1: A permit holder would only be able to carry in a state that, “has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms” OR “does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.”

  • The problem with the above text is that  it provides a strong incentive for restrictive states (like Maryland, New Jersey, Hawaii, New York & California) to prohibit concealed carry altogether. Think about it, when faced with the following two choices, do you think that New Jersey and California (who are historically very restrictive in issuing concealed permits) are going to (1) open the floodgates to every freedom loving American to carry a gun, OR  (2) simply prohibit concealed carry altogether, thus exempting themselves from the National Concealed Carry Reciprocity Act. If this law passes, reasonable minds could agree we would see at least the following states take steps to completely prohibit concealed carry: California, New Jersey, New York, Maryland, Hawaii, Delaware, Massachusetts, and Connecticut. In sum, we would see a regression in the amount of states that allow concealed carry. Naturally residents of those states could then take their case to the courts and hopefully we would see the state and federal courts rule favorably in some of those jurisdictions, but sadly as we’ve seen over the past few years, that is far from a sure bet.

Problem #2: “This [law] shall not be construed to supersede or limit the laws of any State that—(1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park.”

  • What this means is that those middle-of-the-road states (like Oregon, Washington, Illinois and South Carolina) which likely won’t decide to eliminate concealed carry altogether, but also don’t necessarily want millions of visitors carrying guns in their state, will likely make it SUBSTANTIALLY more difficult to carry a gun in their state. States like Oregon and Illinois (among others) have historically been very opposed to granting non-resident carry rights within their state. Instead of suddenly opening the doors for everyone to carry, we will likely see state legislatures tightening the areas within the state where you are allowed to carry through increased prohibited areas. Advancements that took years to accomplish could potentially vanish overnight due to an overly paranoid media frenzy.

Would Any State Permit Work, or Would I Need My Home State Permit? 

There has been a fair amount of debate about this question. When discussing what permits would allows someone to carry in all states, the law say that a person must have a, “permit which is issued pursuant to the law of a State and which permits the person to carry a concealed firearm or is entitled to carry a concealed firearm in the State in which the person resides.”

This wording is more complicated than it first appears. What this means is that your home state permit will always satisfy this requirement, as it entitles you to “carry a concealed firearm in the state in which [you] reside.” Many people who live in restrictive states, like Maryland or New Jersey, have been asking if they can get an easier to obtain out of state permit (such as Utah or Virginia) and still be able to carry in all states. The answer, under the currently worded law, is maybe. Unless the permit you have allows you to carry in your home state, or your state has constitutional carry, the wording of the current law is somewhat awkward regarding non-resident permits. It appears their intent was to allow you to obtain a permit from any state, but if that is the case the language of the law should be updated to unambiguously state that.

In Summary:

There are some positives to this law. I like that concealed carry is being discussed on a national stage and I am glad it is making people more cognizant of the very complicated patchwork of gun laws we have in America. I also like that the law does away with the crazy patchwork of laws regulating magazine capacity (it allows “any magazine for use in a handgun and any ammunition loaded into the handgun or its magazine”), and it explicitly allows for carry on certain federal land (such as National Parks and Army Corp of Engineers property).

However, I think this legislation is badly in need of refinement if it is to accomplish what we all want it to accomplish. To me, a much better option would be to pursue a judicial remedy for the right to bear arms much like the NRA and the SAF achieved for the right to keep arms (click here for a summary of the difference). However, if we are going to attack this issue through legislation it needs to be done properly. As most are aware, Legal Heat is the largest provider of concealed carry training in America, having certified over 150,000 people to obtain concealed carry permits. We are also the publishers of a 50 state gun law book & app that is used by hundreds of thousands of gun owners to navigate gun laws in all 50 states. The attorneys at Legal Heat have also worked on several pieces of concealed carry legislation and would be more than happy to act in an advisory role for Congressman Hudson or anyone else involved in this legislation. We want this law to pass, we just want it to be amended slightly before passing.

For the first time in our history the question before us now is not IF we can pass nationwide reciprocity legislation, but instead HOW such a law should be strategically handled. We are in an exciting time for American gun rights. Legal Heat is very excited about the potential to see quick and decisive progress in the fight for the individual right to keep and bear arms. We will continue to stand on the front lines of this issue by training tens of thousands of Americans each year. If you are interested in attending a training class click here to find a course in your area. 

For updates on this proposed legislation and any other gun related issues please follow us on Facebook.

Knowledge is power. Make sure to share this article. 


Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm and exclusive national CCW training provider to Cabela’s.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can be downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

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Senseless tragedies like the recent incident in Las Vegas are horrifying in their very nature. The team at Legal Heat wants to convey our deepest sympathies to all parties affected. We hope for a speedy recovery for the wounded and strength for the families of the fallen in this time of mourning.

We at Legal Heat are fortunate to have a cadre of professional firearms instructors that include many talented individuals.  Several of our instructors have experience and skills acquired through service in law enforcement, and the military, that give them a unique perspective on how to respond to some of life’s most difficult circumstances.

We asked Legal Heat Instructor Larry McVay about his perspective on what “civilians” can do to prepare themselves, their friends and their families should they find themselves in an active shooter situation, like the recent tragedy in Las Vegas.

Larry is a freshly retired FBI special agent who has deep expertise leading FBI SWAT teams as well as training SWAT teams all over the country to respond to Active Shooter incidents. In addition to the aforementioned credentials, Larry also completed the rigorous operator selection program for the FBI’s national tactical counter-terrorism team serving on the Hostage Rescue Team (HRT) as a tactical helicopter pilot. Larry has served overseas, both in the US Army  (Airborne, Air Assault, Pathfinder, Ranger) as well as managing close security and executive protection operations for the U.S. Attorney General (AG). Larry was responsible for the AG’s travel security locally, nationally and globally, to include forty different countries and two combat theaters.

Given Larry’s unique qualifications, we wanted to know how he thought someone might best prepare should the unthinkable happen. Please understand this is not meant to critique, or armchair quarterback, any of the victims of the tragic events in Las Vegas. Our intent is simply to learn what we can from past tragedies, so that we can help avoid similar tragedies in the future.

Retired FBI Special Agent Larry McVay’s thoughts on Las Vegas/Active Shooter Incident, 10/01/2017:

VENUE:

Too often people will “turn off” mentally when going out into the public for a music concert, sporting event, church or even something as innocuous as an amusement park.  For the “legally armed citizen” this should never happen, even if going to a venue that does not allow for concealed carry of a firearm.

Terrorists as well as active shooters/murderers are naturally drawn to venues that have a large gathering of people in a congested and confined area.  Many of these types of venues will have erected barriers to contain the population/audience that in turn also hamper first responders attempting to get into the venue to stop the killing and prevent the dying.

MENTAL PREPERATION and SITUATIONAL AWARENESS:

One of the biggest problems that people encounter, particularly those untrained or “unseasoned” individuals is recognizing an active shooter event in progress.  The sensors of the body may become aware of something not right, but the mind will try and categorize the inputs as something that is familiar.  In the recent Las Vegas shooting, many people in the kill zone wanted to believe the gunshots they were hearing were only the sounds of fireworks.  It could also be that many people just simply did not hear the gunshots because of the volume of sound coming from the performers on stage and the crowd’s response to the music.  In any event, at the first inkling of “something’s not right” phase, it is imperative that people do at least the following three things: Recognize, Believe and React.

1)    Recognize the sound of gunfire for what it is.  Do not try and convince yourself otherwise or “justify” the sound away.  Most   people live in denial when confronted with a life or death situation.  Don’t be that person.

2)    Once recognized, the mind must immediately believe and accept the danger that comes with gunfire.  The time for deliberation is over and should be minimized through deeds.

3)    React!  Take immediate, preplanned (but not panicked) action.  “Be decisively deliberate!”

PHYSICAL PREPARATION:

It is paramount to anyone wanting to prepare for this type of tragic event to know where the closest exits are located at any given venue.  Give yourself multiple options by finding several different exits and filing them away in your mind.  This goes for any venue you may find yourself in – restaurant, shopping mall, bar, stadium, etc…  Keep in mind that almost everyone will remember the main entrance to a venue. After all, they just came through it. Most will instinctively want to run for that entrance because of its familiarity and known location.  Resist that temptation and opt for an alternate exit that you have previously scouted. If possible, keep obstacles between yourself and the herd.  Aside from an active shooter, one of the biggest dangers in a crowd is the crowd itself.  The herd mentality of a panicked crowd can be as dangerous as an active shooter or a fire emergency.  Know the difference between cover and concealment and, if possible, use either to assist your movement to an exit. Cover is a substantial object that will stop a projectile and hide your presence. A brick wall provides cover.  Concealment is an object that obscures you from view, but will not stop a projectile. A tent, or a bush provide concealment, but not cover.

If the option presents for choosing a location within a venue, choose to be near an exit or preferably, two or more exits thus opening up more options for escape.  While it is true that an active shooter can use an exit to gain entry, time and time again it is shown that active shooters generally walk right through the front door.

Choose designated meeting places for both inside and outside of a venue for your group in case of separation during an emergency.  This will help with accountability post-incident and can speed up the process of getting away from the threat.  The last thing someone should be thinking about is going back into a kill zone to attempt to locate a lost child or spouse.

If armed, avoid the temptation to “go hunting” for an armed shooter.  Remember, as a civilian, your role should be to take care of family and yourself.  If you can assist others along the way while escaping, do so.

Lastly, it should be obvious that while everyone enjoys a good time at a concert or other entertainment venue, limit the intake of alcohol such that you don’t reduce your capacity to respond appropriately during an emergency.

GEAR PREPARATION:

Some items for consideration to help you survive during an active shooter event in any type of venue are:

1)    A small but powerful flashlight – better yet, have multiples of the same spread out through your group.

2)    A small individual first aid kit (IFAK) containing the bare essentials for traumatic wounds.  A tourniquet and a pressure dressing bandage will go a long way towards saving a life and they can take up very little space.  Another consideration to have along is a gauze roll and perhaps some quick clotting material. Keep in mind that overall, this is a very small package that can easily be tossed into a purse, back pocket, or even some purpose built holsters that one can wear at one’s ankle.  Anyone rocking a CCW (even if they are not allowed to carry their firearm at a venue) should maintain such an IFAK.  If you are justified and responsible enough to make holes in someone to stop the killing, you should be equally responsible enough to plug holes as well to stop the dying.  Have additional first aid equipment in your vehicle. The most important “accessory” to have along, medically speaking, is the training to go with those medical supplies.

3)    It’s a great idea to go into any venue with a fully charged cell phone and extra sets of vehicle keys for each adult in the vehicle.  If there is the possibility of escape, instinct will draw you to your vehicle as a means of escape.  Have keys.  Better yet, have multiple keys.  If someone in your group sustained an injury and you can evacuate them quickly, do so.  Don’t wait for EMS as they may be overwhelmed by a mass casualty event.

4)    Know where the nearest hospitals with a Level 1 or Level 2 emergency room are located.  Pre-program them into your GPS and have a good idea of the general direction they are in from the venue site.  As a back up to your GPS, it is also wise to have a city map when in an unfamiliar territory with the venue site and nearby hospitals located and identified on the map.  This is an especially good idea if you happen to be attending a venue that is located outside your normal stomping grounds.

All of these preparations are not time consuming nor are all these that are listed meant to be all encompassing.  Most of this planning is normal, or should be normal, in everyday life.  The bottom line is that any plan is better than no plan. Once you put a plan in place, it is easy to modify your existing plan to a new venue.

Stay Legal. Stay Safe!

 

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

The Question:

Imagine you are walking down the street late at night when suddenly a criminal violently attacks you with a knife. Fearing for your life you draw your weapon and fire 3 quick shots, stopping the threat and saving your life. Once the threat is neutralized, however, you realize one of your shots missed your intended target and struck an innocent bystander in the leg, causing him severe harm. Assuming you are otherwise justified in defending yourself, can the innocent bystander sue you? Will you lose that lawsuit? CRAZY-JUDGE-psd42104

The Answer:

No. The lawsuit against you will be dismissed and will need to be brought against the attacker with the knife. You are free from liability under the doctrine of transferred intent.

The Background:

I have spent the last ten years teaching and training concealed permit instructors in nearly 30 different states. Our company has certified roughly 150,000 people to obtain concealed permits at this point. During the past decade I have had the privilege to sit through hundreds of very well taught courses, and a few very poorly taught courses. There are, however, some unsubstantiated (untrue) myths that seem to be virtually ubiquitous among concealed carry courses. Today I hope to dispel one such myth.

A course I recently sat through prompted me to write this article. While teaching the self-defense section of the course the instructor said:

Understand that if you pull the trigger on your gun you are liable for every bullet. If one round passes through or misses and hits an innocent bystander, or 5,  you can, and will be sued. You will be paying those bystanders for the rest of your life.

Please don’t misinterpret my intent in this article. Obviously the four basic gun safety rules should always apply and you should always know your target and what is beyond. This instructor, however, was incorrect in stating the shooter will be held civilly liable if he strikes an innocent bystander during an otherwise justified shoot, and it is important to understand why.

The simple reason is that the shooter (self-defense actor) was not the proximate cause of the harm to the innocent bystander. Although that may seem counter intuitive to say (given he was the one who actually fired the gun), it was in fact the attacker with the knife who caused the bystander harm.

In the legal world this is called the doctrine of transferred intent. It has been recited in numerous cases (see State v. Green, 157 W. Va. 1031, 1034, 206 S.E.2d 923, 926 (1974)) and is summarized by American Jurisprudence, Second Edition, as follows:

If the circumstances are such that they would excuse the killing of an assailant in self-defense, the emergency will be held to excuse the [victim] from culpability, if in attempting to defend himself he unintentionally kills or injures a third person… Although the assailant may have had no intention to harm the third person in the course of his or her defense, in order to escape culpability, the assailant must have been free from negligence and must have acted prudently and with due care.

40 Am. Jur. 2d Homicide § 143

Perhaps even more clear is the Restatement (Second) of Torts (think Bible of civil lawsuits), which provides the following example:

A points a pistol at B, threatening to shoot him. B attempts to shoot A, but his bullet goes astray and strikes C, an innocent bystander. B is not liable to C unless, taking into account the exigency in which A’s act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous to C.

Restatement (Second) of Torts § 75 (1965)

It is obviously not our intent to encourage recklessness, or anything less than the utmost possible care when acting in self-defense. However, it is important to understand the legal principles that guide self-defense cases and dispel some of the commonly perpetuated myths. No one wants to hit an innocent bystander when acting in self-defense, but it happens.

At Legal Heat our goal is to train our students for any danger they may encounter, both in the real world and the courtroom. Properly understanding how theories of civil liability work is one part of that training.

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Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

 

 

 

 

 

Effective May 9th, Utah will begin issuing “provisional” concealed firearm permits to anyone age 18-20 years old. The new law will require that those seeking a provisional permit complete the same training as the standard Utah permit, and will enable permit holders to carry a concealed (or open) firearm everywhere in Utah where a standard permit does, with the singular exception of K-12 schools.

Utah_border_signNon-Utah residents aged 18-20 may also obtain the Utah permit, however the rules for obtaining a non-resident provisional permit are not as straight forward.

First, if the non-resident lives in a state that honors (or reciprocates) with Utah’s provisional permit, they must first have their home state permit prior to applying for the new Utah provisional permit. This is no problem for anyone living in states like Montana or Maine (which also issue permits to 18 year olds), but creates a significant problem for those living in states where the minimum age to obtain a permit is 21.

Second, if the non-resident lives in a state that does not honor Utah’s provisional permit (like California or Illinois) then anyone age 18-20 years old may simply apply for Utah’s provisional permit once they have completed the mandatory training class (even without obtaining their home state permit first). Naturally, a non-Utah resident must verify they are complying with their home state’s laws prior to attempting to use the provisional permit to carry.

All provisional permits can be automatically converted to standard Utah permits when the permit holders turns 21, without any additional training.

This is a big win for college age students wishing to defend themselves, according to the law’s sponsor Rep. Karianne Lisonbee.

“A group of 18- to 20-year-old women brought this bill idea…They wanted to be able to defend themselves.”

Utah is not alone in issuing permits to 18 year olds, several states have been doing it for years. In fact, many 18 year olds, myself included, have taken advantage of the “Maine Loophole”, wherein they obtain a Maine non-resident permit as an 18 year old and use that permit to carry in their home state even though their home state does not issue permits to anyone under 21. This “loophole” only works, however, if your home state (Utah in my case) honors the Maine permit and does not have a law requiring you to have your home state permit or a minimum age requirement to carry. As Utah’s permit is one of the most popular in the nation, it can be assumed many 18 year olds will be signing up for training and sending off applications shortly.

For those looking for training, an 18 year old may take a training course any time after April 1, 2017 and may submit their application anytime after May 9, 2017. The cost to apply for Utah’s permit is $37 for Utah residents, and $47 for non-residents. The permit is valid for 5 years and requires a simple $15 renewal fee. Additionally, the state of Utah has published a FAQ page regarding the provisional permit you can review here.

Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat: 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

 

DISCLAIMER TO OUR LEO FRIENDS: This article is not meant to offend or insult anyone in law enforcement. It is meant to apprise the readers of their constitutional rights. Like all law enforcement, while in uniform you are an actor of the state. However, when you take off the uniform you are also a citizen fully equipped with all the same constitutional liberties as those you interact with on your job. As such, this information should be appreciated by you in your individual capacity, and hopefully respected by you when acting on behalf of the state. The readers of this article are mainly concealed firearm permit holders. Meaning, they are exceptionally law abiding citizens. It is not our intent to help criminals conceal firearms during traffic stops, we simply want to help the law abiding remain law abiding while navigating a very complicated spiderweb of firearm laws. 

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Let’s have a very blunt conversation about interacting with law enforcement while in possession of a firearm. This article is not meant to focus on when a police officer has a legal right to stop you, but instead is meant to cover the less analyzed issue of what are the legal implications of informing an officer that you are carrying a firearm? I am going to offer this article from a purely legal standpoint, the same way I would advise a client. There are obviously differing opinions on how you should handle a police stop. It is not my intent to address how you should, but instead to analyze what the legal implications are of certain conduct during a stop.

Let’s start at the beginning. Relating to police stops of concealed permit holders there are three categories of states, namely:

  • Duty to Inform States: States where you are required by law to affirmatively disclose the presence of your firearm (e.g. Ohio, Michigan, etc.).
  • Quasi Duty to Inform States: In these states you do not have to affirmatively inform the officer of the presence of your firearm, but state law requires you to still do something, such as respond if you are asked if you have a weapon, or provide your permit if it is requested of you. The range of requirements for these states varies significantly (e.g. Iowa, Texas, etc).
  • No Duty to Inform States: In these states you have no legal obligation to inform the officer if you are carrying and you generally have no legal obligation to respond if you are asked (e.g. Utah, Georgia, etc.).

This article is not meant to be a state by state summary, we sell a book and mobile phone app that contains that information and Concealed Nation also has a great article on that topic here. Instead, I want to walk you through what the legal implications are of disclosing the presence of your weapon to a police officer.

IMPLICATION NUMBER 1: WAIVING YOUR FOURTH AMENDMENT RIGHTS

A potential outcome of informing an officer that you have a firearm is that the officer might then have the ability to perform what is called a Terry Stop or a Terry Frisk. The Terry Doctrine stems from a 1968 Supreme Court case, Terry v. Ohio. In Terry, the United States Supreme Court held that an officer may perform a protective frisk and search pursuant to a lawful stop when the officer reasonably believes a person is “armed and presently dangerous to the officer or others.” (see: 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This also gives the officer authority to temporarily disarm the permit holder “in the interest of officer safety.” The Court did caution that a search “is a serious intrusion upon the sanctity of the person” and should not be taken lightly. Still, the basis for the search itself is largely left up to the officer’s discretion once he is made aware of the presence of a weapon.

The sole purpose for allowing the frisk/search is to protect the officer and other prospective victims by neutralizing potential weapons. (see: Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469). As an example, a Terry Stop allows a police officer to remove you from your vehicle, pat down all occupants of the vehicle (using the sense of touch to determine if they are armed), as well as search the entire passenger compartment of the vehicle including any locked containers that might reasonably house a weapon. In other words, telling a police officer you have a firearm on you or in your vehicle can serve as a waiver of your Fourth Amendment rights and allow the officer to conduct a warrantless search. 

This issue was recently highlighted in a recent 4th Circuit Court of Appeals case United States v. Robinson. In Robinson, the court extended the Terry Doctrine further than it previously had. In its ruling, the court stated that because firearms are “categorically dangerous

an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” (source)

Or as Judge Wynn ominously wrote in his concurring opinion, “those who chose to carry firearms sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms.”

The waiver of your Fourth Amendment rights is why states with “duty to inform” laws create such a constitutional dilemma. If, as a condition to carrying a firearm, I am required by law to inform an officer that I have a firearm in my vehicle, then I am simultaneously required to waive my Fourth Amendment privacy rights. That is a violation of the unconstitutional-conditions doctrine and is long overdue for a legal challenge.

BUT PHIL, POLICE OFFICERS ONLY PUT CRIMINALS IN JAIL, AND I’M NOT A CRIMINAL!!! WHY WOULD I CARE IF I GET SEARCHED?!?

IMPLICATION NUMBER 2: YOU ARE A CRIMINAL, YOU JUST DON’T KNOW IT…YET

You are a criminal, we all are from time to time. Do you have any idea how many gun laws there are out there? No? Neither does our own department of justice. If you don’t even know how many gun laws there are, how can you possibly know you are abiding by all of them simultaneously? Justice Robert Jackson (U.S. Supreme Court Justice) once said, “any lawyer worth his salt will tell the suspect [his client], in no uncertain terms, to make no statement to the police, under [any] circumstances.” The reasoning behind Justice Jackson’s quote isn’t because police officers are bad, it is simply because the average civilian has no idea how many laws they may be breaking at any given time. As a prosecutor, and later a defense attorney, I deal with clients routinely that are charged with crimes they had no idea they were committing.

Here is a simple example of how the “I have nothing to hide” mentality can land you in jail. Let’s imagine you are a Utah resident and a Utah concealed permit holder. Your Utah permit is valid in well over 30 states so you decide to take a road trip with your firearm. As you’re driving through Idaho (where your permit is valid) you get pulled over for speeding in a school zone. Because you are an upstanding citizen and you have nothing to hide, you tell the officer that you have a firearm in the vehicle. Aaaaannd now you’re a felon. Wait, what?  How did that happen? Let’s review why you’re now a felon.

18 U.S.C.A. § 922(q)(2)(A), otherwise known as the Federal Gun-Free School Zones Act (GFSZA), states that:
It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

The term “school zone” means in, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school. The term “school” means a school which provides elementary or secondary education, as determined under State law (see 18 U.S.C.A. § 921).

There are a few narrow exceptions to this law, one of which is:

“if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;” 18 U.S.C.A. § 922 (emphasis added)

You have a permit from Utah which is valid in Idaho, but was not issued by Idaho, which means this federal law is in full force against you. See how fun that is? Don’t worry, the penalty for violating the law is only 5 years in prison and a $5,000 fine. If you would like more details about this law you can read the ATF’s analysis of it here.

Of course, as is often the case, the Idaho police officer may sympathize that you are not intending to violate the law and may choose not to escalate the situation beyond a mere traffic stop. Millions of people violate the GFSZA every year and few are prosecuted. Given the harsh penalty, however, it’s not a gamble I personally want to take.

IMPLICATION NUMBER 3: SEARCHES ARE ALMOST ALWAYS BAD.

I would challenge anyone reading this to think of any instance where someone waiving their rights, or consenting to a search/seizure, has made their life better. In my career I certainly haven’t seen it. I have, however, seen a significant amount of good people get charged with serious crimes because they were overly generous with the amount of information they shared with law enforcement. It is my experience that nothing good can come from waiving your rights. Consider the wording of the the oft cited Miranda warning:

The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 (1966) (emphasis added).

Can and will be used against you. The best case scenario of waiving your rights is you get to go home. The worst case scenario is you go to prison.

Once again, it is not our intent to tell you how you should interact with law enforcement or imply in any way that law enforcement are villains or out to get you. As a prosecutor I worked with law enforcement every day, and as a firearm instructor over the past decade I can say some of the best people I know are police officers. Police officers, by and large, support the shooting sports community and are members of it themselves. We strongly encourage everyone to treat law enforcement with respect. Very little is accomplished in life by acting belligerent, rude or demeaning.

Phil Nelsen is a nationally recognized firearms law attorney, expert witness, college professor, author and co-founder of Legal Heat, the nation’s largest firearms training firm.

Legal Heat offers CCW classes nationwide, and also publishes the industry leading Legal Heat 50 State Guide to Firearm Laws and Regulations which can downloaded on iTunes, GooglePlay and Kindle App stores. You can purchase the paperback version of the Legal Heat 50 State Guide or sign up for a class at https://mylegalheat.com

 

2nd-amendment-cartoonHave you heard there is new federal legislation that will allow someone with a concealed carry permit from one state to carry in all 50 states? Sounds awesome right? Might not be as awesome as you think. The purpose of this article is to dispel some of the myths associated with this proposed legislation and give an update on its status.

The Concealed Carry Reciprocity Act of 2017 is a new iteration of a law that has been proposed several times over the past 6 years. In its most recent form it was introduced on January 03, 2017 by U.S. Representative Richard Hudson (NC-08). The NRA and other gun rights organizations have been outspoken in their support of this legislation. Largely due to the social media buzz surrounding it, many people in our classes are misinformed on many aspects of this potential law (many people we speak with believe it is already a law, which is dangerous). We have received hundreds of emails and phone calls from past students asking about the “new law” and the amount of misinformation we’ve heard is alarming to us. Don’t get me wrong, we love hearing from past students and we are always flattered when you reach out to us for advice, but there are some legitimate misunderstandings out there about the Concealed Carry Reciprocity Act, and we want to help clarify a few important points.

Many people we speak with believe this legislation would make it so one permit would be valid in all 50 states, like a driver’s license. In fact Congressman Hudson’s own website says the following regarding the law:

“Your driver’s license works in every state, so why doesn’t your concealed carry permit?” (source)

That is absolutely not what this law will do, however, and it is important to understand what the law actually says.

The Concealed Carry Reciprocity Act of 2017 is intended to “amend title 18, United States Code, to provide a means by which non- residents of a State whose residents may carry concealed firearms may also do so in the State.”

Subsection (a) says that anyone who (1) is not prohibited from possessing a gun under federal law AND (2) has a valid identification document containing a photograph in their possession AND (3) has a valid state issued license to carry a concealed handgun (from any state) may carry a concealed handgun in any state. 

AWESOME RIGHT?!? As long as I have a photo ID & concealed permit then I’ll be able to carry in any state, what’s wrong with that???

The problem is the text of the proposed law doesn’t stop there. If it did, I would agree it would be a great law. Instead it goes on to create two very distinct problems.

1: A permit holder would only be able to carry in a state that, “has a statute that allows residents of the State to obtain licenses or permits to carry concealed firearms” OR “does not prohibit the carrying of concealed firearms by residents of the State for lawful purposes.”

  • The problem with the above text is that  it provides a strong incentive for restrictive states (like Maryland, New Jersey, Hawaii, New York & California) to prohibit concealed carry altogether. Think about it, when faced with the following two choices, do you think that New Jersey and California (who are historically very restrictive in issuing concealed permits) are going to (1) open the floodgates to every freedom loving American to carry a gun, OR  (2) simply prohibit concealed carry altogether, thus exempting themselves from the National Concealed Carry Reciprocity Act. If this law passes, reasonable minds could agree we would see at least the following states take steps to completely prohibit concealed carry: California, New Jersey, New York, Maryland, Hawaii, Delaware, Massachusetts, and Connecticut. In sum, we would see a regression in the amount of states that allow concealed carry. Naturally residents of those states could then take their case to the courts and hopefully we would see the state and federal courts rule favorably in some of those jurisdictions, but sadly as we’ve seen over the past few years, that is far from a sure bet.

2: “The possession or carrying of a concealed hand-gun in a State under this section shall be subject to the same conditions and limitations … imposed by…State law or the law of a political subdivision of a State”

  • What this means is that those middle-of-the-road states (like Oregon, Washington, Illinois and South Carolina) which likely won’t decide to eliminate concealed carry altogether, but also don’t necessarily want millions of visitors carrying guns in their state, will likely make it SUBSTANTIALLY more difficult to carry a gun in their state. States like Oregon and Illinois (among others) have historically been very opposed to granting non-resident carry rights within their state. Instead of suddenly opening the doors for everyone to carry, we will likely see state legislatures tightening the areas within the state where you are allowed to carry through increased prohibited areas. Advancements that took years to accomplish could potentially vanish overnight due to an overly paranoid media frenzy.

There are some positives to this law. I like that concealed carry is being discussed on a national stage and I am glad it is making people more cognizant of the very complicated patchwork of gun laws we have in America. However, I think this legislation is badly in need of refinement if it is to accomplish what we all want it to accomplish. To me, a much better option would be to pursue a judicial remedy for the right to bear arms much like the NRA and the SAF achieved for the right to keep arms (click here for a summary of the difference). However, if we are going to attack this issue through legislation it needs to be done properly. As most are aware, Legal Heat is the largest provider of concealed carry training in America, having certified over 150,000 people to obtain concealed carry permits. We are also the publishers of a 50 state gun law book & app that is used by hundreds of thousands of gun owners to navigate gun laws in all 50 states. The attorneys at Legal Heat have also worked on several pieces of concealed carry legislation and would be more than happy to act in an advisory role for Congressman Hudson or anyone else involved in this legislation. We want this law to pass, we just want it to be amended slightly before passing.

Having said all of that, what is the status of this legislation? It is currently sitting in the House awaiting review by a committee and a floor vote. If it clears the House then it will be sent to the Senate for joint resolution before being sent to the President’s desk. President Trump has been fairly outspoken about his willingness to sign a law of this nature. For the first time in our history the question before us now is not IF we can pass nationwide reciprocity legislation, but instead HOW such a law should be strategically handled. We are in an exciting time for American gun rights. Legal Heat is very excited about the potential to see quick and decisive progress in the fight for the individual right to keep and bear arms.We will continue to stand on the front lines of this issue by training tens of thousands of Americans each year. If you are interested in attending a training class click here to find a course in your area. 

For updates on this proposed legislation and any other gun related issues please follow us on Facebook.


About the Author: Phillip Nelsen is a co-founder of Legal Heat, a nationally recognized firearm law attorney, college professor and author.

Over the last few months Pennsylvania attorney general Kathleen Kane has been altering and amending Pennsylvania reciprocity agreements like a child who can’t decide on which candy to select from the candy aisle. It appears her intent is to require Pennsylvania residents to obtain a Pennsylvania permit prior to obtaining an out of state permit (such as a Utah, Florida or Arizona permit). Apparently some PA residents were only obtaining a Florida permit and never obtaining a PA permit and she wanted to put an end to that. If that’s the case, it would make sense for her to do that as it is already required by Pennsylvania law that residents obtain their home state permit in order to carry in their home state. However, whether intentionally or unintentionally, AG Kane has also been restricting the rights of non-Pennsylvania residents (such as Maryland, New York and New Jersey) to carry in Pennsylvania by declaring all non-resident permits held by those individuals invalid in PA.

AG Katherine Kane presumably discussing the best methods of restricting fundamental rights with former President Bill Clinton

Back in February AG Kane invalidated all non-resident Florida permits in Pennsylvania by issuing a “notice”. She then turned her attention to Arizona permit holders in May, and finally did the same with the Utah permit a few weeks ago. The way it currently sits, Utah, Arizona and Florida permits held by non-residents of those states are no longer valid in Pennsylvania. Residents of Utah, Arizona or Florida would still be able to carry in PA with those permits as this change does not affect them. Also, this change does not affect PA residents so long as they have their PA permit.

There is, however, some pieces of good news for those affected by this decision who are looking to continue carrying in PA. First, AG Kane has irritated a lot of people (including members of the legislature) by unilaterally amending the reciprocity agreements. It is rumored that several members of the legislature are drafting law changes which would reinstate the reciprocity and prohibit AG Kane from further restricting the right to carry for hundreds of thousands of people. We’ll keep you updated on that progress.

In the mean time, there are 3 ways in which non-residents can still carry in Pennsylvania.

Option 1: Obtain a Pennsylvania non-resident permit:

  • The process for obtaining a PA non-resident permit is very simple IF you already have your home state concealed carry permit. If you already have your home state permit you simply take in a photocopy of your permit and photo ID to any PA sheriff and pay the $20 application fee. They will then mail you your permit when it is ready. The problem, obviously, is Maryland, New York and New Jersey residents have an extremely difficult time obtaining their home state permit and thus the majority aren’t eligible to apply for a PA non-resident permit. For those people, options 2 and 3 will work best.
  • Update: A reader in the comments below has informed us that some PA sheriff’s are giving non-residents a hard time when they apply for permits. We recommend calling the sheriff before you make the drive to verify there won’t be any problems.

Option 2: Open Carry

  • In PA anyone who is of legal age and otherwise not prohibited from possessing a firearm may open carry their loaded handgun without any kind of permit statewide except for in the city of Philadelphia. That means a NJ, MD or NY resident could simply open carry their gun and not worry about what AG Kane does with the reciprocity agreements. Open carry is a constitutional right in PA (everywhere except in Philly, go figure) and you don’t need any kind of permit to do it. For reasons we’ve mentioned in the past, we’re big open carry advocates and encourage non-residents to do it until this mess gets sorted out. If AG Kane doesn’t like a bunch of non-residents open carrying in her state then she can change the reciprocity agreements back to the way they worked before. If you plan on open carrying in PA (or carrying anywhere, ever) you should already have the Legal Heat app or book. For those of you without the Legal Heat app or book, there are a few things about open carrying in PA that you need to know about. First, as has already been mentioned, you can’t open carry in Philadelphia without a permit that is valid in PA. Second, you can’t open carry in a state park without a permit. And third, you can’t open carry in a vehicle without a permit that is valid in PA. The vehicle problem, however, is solved by option 3 below.

Option 3: If you have a permit from ANYWHERE you can carry a loaded handgun in a vehicle in PA:

  • Even though a NY, MD or NJ resident may not be able to carry a concealed firearm in PA for a while, they can still have a loaded handgun in a vehicle while driving in PA so long as they have any other state permit (Utah, Arizona, Florida, etc). 18 Pa.C.S. § 6106(b)(11), provides that any person may carry a loaded handgun in a vehicle so long as they have “a valid and lawfully issued license for that firearm which has been issued under the laws of the United States or any other state.” Those of you who are looking to have a loaded handgun in your vehicle while in PA will still be able to do so so long as you have any state permit.

In summary, this change does not affect PA residents at all and those of you in MD, NY or NJ (or any other state) who have taken our class will still be able to carry in over 30 states with your Utah or Arizona permits. You can also still have a loaded handgun in your vehicle in PA (so long as you have any permit) and if you wish to carry outside of your vehicle and can’t obtain a PA permit, you can still open carry everywhere except for Philadelphia.

Considering there have been ZERO negative incidents involving permitted non-residents carrying in PA, we hope AG Kane comes to her senses and reverts back to the prior reciprocity agreements. Until then, we hope this post provides a resource for those of you looking to carry in PA but are unable to obtain a PA non-resident permit.

For those of you in PA, MD, NJ or NY who are looking to obtain your permits, Legal Heat will be back in the area in the next few weeks teaching several classes. Click here to view our entire schedule.

STATES THAT CURRENTLY HONOR THE UTAH PERMIT

STATES THAT CURRENTLY HONOR THE UTAH PERMIT

PERMITS THAT ARE CURRENTLY HONORED BY PENNSYLVANIA

PERMITS THAT ARE CURRENTLY HONORED BY PENNSYLVANIA

Image  —  Posted: July 2, 2014 in Uncategorized