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explain preemption to me please

Discussion in 'Legal & Political Archive' started by Kevatc, Jul 4, 2012.

  1. Kevatc

    Kevatc Oregon Well-Known Member

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    I will be spending some time in Wyoming and Colorado where I will have to OC. After checking opencarry.org I'm not the least bit worried about OCing in Wyoming and for the most part in Colorado although Denver regs and restrictions somewht remind me of Salem, Portland, Beaverton. At any rate as I was reading through various summaries of states OC rules/regs the concept of preemption is talked about.

    For instance, Oregon's preemption statute only covers concealed handgun license holders from city or county passed bans against loaded firearms in public places.

    Wyoming has complete state preemption of all firearms laws, open carry is constitutionally protected and law enforcement is aware of its legality. :thumbup:

    Colorado is a confusing state. Denver filed and won a suit challenging the states excellent preemption law. Consequently, both open carry and unlicensed open car carry in Denver are prohibited. There are reports that other localities are planning to follow suit. Currently, outside of Denver, car carry is unrestricted and localities are almost completely preempted in enforcing firearms restrictions, and must post specific facilities which are off limits to open carry.

    Can someone explain this concept of preemption to me? Thanks.
     
  2. MarkAd

    MarkAd Port Orchard Well-Known Member

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    I can speak here in WA. It basically means that no city or other entity may pass a rule that exceeds what the state limits. For example the former mayor try to limit carry in Seattle City parks and lost in court and in the appeals court because the state preemption states that no rule more restrictive than those pass by the state.
    So Seattle can not say one thing and Olympia another. We are mostly on the same page state wide.
     
  3. Kevatc

    Kevatc Oregon Well-Known Member

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    OK .... then in the case of Colorado and Denver specifically (Castlerock, CO has a complete ban of OC except your own yard) or Portland, Beaverton, etc how is it they can have very restrictive OC regs and rules than what the state Constitutions say?
     
  4. fd15k

    fd15k Tigard,OR Well-Known Member

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    Gray Peterson (WA resident, NWFA member http://www.northwestfirearms.com/members/713.html) is currently suing Denver. Concealed carry permits are readily issued in Colorado, thus prohibition on Open Carry in Denver doesn't trigger a conflict with the state constitution. Problem is they don't issue permits to non-residents, and have limited reciprocity, thus the lawsuit...

    Peterson v. LaCabe - Calguns Foundation Wiki
     
  5. Kevatc

    Kevatc Oregon Well-Known Member

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    Thanks.

    I wish Mr. Peterson luck. I have to admit after reading this from the Wiki link I have my doubts that he will prevail:

    This suit seeks to:

    1. To challenge Denver's enforcement of CRS 18-12-203(1)(a), which is the requirement that a person be a Colorado resident. Unlike all of the other jurisdictions in Colorado, Denver has an ban on carrying firearms openly, and only allows the concealed carrying of a firearm with a Colorado state-issued or recognized license.


    It would seem that he would basically be pushing for Constitutional carry which I think is AWESOME. However, the reality is that states have the right to set their own rules and regs for the issuance of CC. If a state is forced to isue CC permits to non-residents and if OCing is found to be in conflict with a state Constitution then it would seem the only thing left is to not try and regulate any gun issues.

    After reading the Colorado stuff on opencarry.org Denver proper is not OC friendly. In fact, OC is prohibited. I don't understand how Denver can prohibit OC which seems contrary to what the Colorado Constitution seems to say.
     
  6. fd15k

    fd15k Tigard,OR Well-Known Member

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    Technically I sent you a bit off course - Mr. Peterson filed a suit under federal Constitution. Basic theory right now is that there is a right to carry a handgun for self defense in public. The manner in which a handgun can be carried is not prescribed - it can be either open or concealed, either satisfies constitutional requirements. Theoretically either issuing carry licenses to non-residents or removing ban on Open Carry in Denver would work to satisfy Mr. Peterson's complaint. But we know that Denver doesn't want for people to carry openly, so the only avenue is changing the carry license issuance. One thing to keep in mind, is that lawsuit against Denver is not an isolated work of litigation, but is a part of larger coordinated attack lead by SAF.

    Now with the state Constitution the things appear much simpler. Denver sued the state and won in the lower court after legislature made changes to the carry laws. Decision has been appealed to CO Supreme Court, which had a split, and so the lower court's decision was reaffirmed. Case name is Denver v. State of Colorado, I believe.
    http://www.courts.state.co.us/Media/Opinion_Docs/03cv3809order.pdf
     
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  7. Misterbill

    Misterbill Yakima County, Washington New Member

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    Or you could just decide to give Colorado a miss, since they choose not to recognize your 2A rights.

    Seriously, unless I have buisiness in a state that HAS to be done in that state, I won't go there if I can't get a non-res CCW, or O/C.

    I spent eight miserable years in Mass, several of which were as a professional defensive firearms instructor and couldn't CC or O/C because my local CoP decided that no one but his poorly trained, patronism-hired cops should be able to. After putting up with the crap for several years, I will NEVER, EVER put up with it again. I'll visit California for my daughter's Grandmother's funeral. That's it. I'll visit Mass. again if someone I truly love dies there.

    Other than that, they won't get a nickel of my tourism dollars or business expenditures.

    If every gun owner in the country very publicly boycotted hostile places to the 2A, that's about 30 million households that withhold their money. That's serious cash.

    Since Colorado won't let me get a non-res permit, and I can't carry a gun in God knows where, I'll choose to go elsewhere. Montana, Idaho, Utah and Wyoming work fine for me thanks.
     
  8. Outrider

    Outrider Oregon Active Member

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    Preemption is a concept tied to federalism and our system of government. It is not just limited to guns. The short version is you have federal, state, and local governments. Each has its own sphere where it may exercise power. Some of these spheres overlap. If the larger entity, i.e. the state, chooses to exercise its power fully in a given area where it is allowed to legislate, its rules may preempt other entities, i.e. municipalities, from passing their own laws on the matter. If the larger entity does not legislate an area fully, it can leave room for a smaller entity to enact laws that work with the existing laws but do not conflict with them.

    For example, a state may regulate concealed carry and establish what public areas a concealed carry permit holder may possess a firearm, i.e. in a public park, but not in a court house. If a locality bans concealed carry in bars within city limits, that might be fine if it doesn't contradict the state law. If the city bans concealed carry in a park, it automatically conflicts with an area of law occupied by the state. In that case, state law preempts local law. However, if a city bans open carry, that is not necessarily preempted by the state's laws on concealed carry because it is not concealed carry. Until the state passes its own law on open carry that precludes localities from having their own, cities may be able to do what they want without running afoul of state law.

    That said, the issue with Colorado and Denver is more than just preemption. Colorado is a home rule state. Colorado has in its state constitution a section (Article XX, I think) that allows local municipalities to exercise more power and, to an extent, prevents the state from interfering with the municipalities. This means the state allowed the cities to have more control over local and municipal areas. -In effect, the state transferred some of its power to cities with home rule charters. This isn't just a gun thing. The cities in home rule states can establish their own speed zones within their jurisdictions and those cities tend to use that power to create speed traps to generate revenue. Both CO and TX are home rule states. And if you look at big cities with the most speed traps, you'll find Denver, Colorado Springs, Dallas, Austin, and Houston among the top ten.

    There are a few things at play with Denver and guns. Colorado does have a state law regarding concealed weapons permits. Denver must follow it. So where CO concealed carry permits are concerned, the state law preempts Denver from establishing its own set of rules. The next thing you must understand is that concealed carry is different from open carry. There was a Colorado state supreme court case which resulted in a 3-3 tie. This means the lower court ruling stands unchanged. In that lower court ruling, the judge upheld Denver's rules under its home rule status regarding possession, use, and transportation of firearms. I believe this may be where it gets a little difficult for you and open carry. If you are in Denver, or another municipality in Colorado with home rule, you have to deal with their rules and I'd be willing to bet that's an inconsistent patchwork.
     
  9. Kevatc

    Kevatc Oregon Well-Known Member

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    Thanks for this! It cleared up a bunch of things for me. The bolded part is where I've heard OCer's have the most complaints because they can be literally breaking the law just by crossing the street that serves as some arbitrary boundry.
     
  10. Kevatc

    Kevatc Oregon Well-Known Member

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    As far as I can tell Denver and Castle Rock are the places to avoid. Since my forays into Colorado will be in the northern sections and primarily in the mountains (fires permitting) I don't anticipate any problems.
     
  11. mjbskwim

    mjbskwim Salmon,Idaho Well-Known Member

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    Denver has some bad gang problems I have read.The chances of changing any gun laws would mean clearing the whole city government.
    So if Denver is a must,be careful because the worst places in CO ,you can't carry guns.

    The whole thing with carrying in these type of places is don't atract attention.
    I have never carried in So Cal while visiting my son,but the gun is near.
    And I stay out of sketchy neighborhoods
     
  12. slimer13

    slimer13 Deer Park Well-Known Member

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    I would really like to know the thought process of some of these states regarding why they honor some states cpl's and not others. It probably sounds something very similar to a monkey bubblegumming a football.
     
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  13. Toxic6

    Toxic6 Higher then a PDX hipster (~10,000 ft higher) Active Member

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    I think CO reciprocity is with states that honor the CO CCW license....Oregon doesn't recognize any other states does it?

    Preemption means that the municipalities cannot counter state law or the state constitution, but it allows them to interpret it pretty loosely sometimes lol.

    From my time living in the metro, my understanding was that ccw in Denver city/county was ok with a license. Open carry was considered a public nuisance somehow and prohibited without a merchant guard (or whatever) permit, and a firearm in you vehicle was protected by state law -meaning you could have it concealed or displayed no matter where you were (but I wouldn't leave a gun out in the open in an unattended vehicle in Denver LOL). In your vehicle, shotguns and rifles could have full mags but cannot be loaded - loaded being defined as a round chambered. Handguns in your vehicle could be loaded and chambered, and within arms reach - "for protection of person and property in transit" per the state.

    Here's some gratuitous links lol ..... Gun Law FAQs - Rocky Mountain Gun Owners http://www.colorado.gov/cs/Satellite/StatePatrol-Main/CBON/1251594549010

    Doesn't Wyoming have "Constitutional Carry" now?
     
  14. fd15k

    fd15k Tigard,OR Well-Known Member

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    Indeed. It's not CO screwing us, but Oregon. Floyd, you stupid moron.
     
  15. Kevatc

    Kevatc Oregon Well-Known Member

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    My home state is very gun friendly. OC for any and everybody. CC if you are a resident of the state. No CC if aren't a resident.
     
  16. Kevatc

    Kevatc Oregon Well-Known Member

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    The visual on that has me chuckling out loud. :laugh:

    I am going to assume there are different standards to get one's CHL in the various states?
     
  17. slimer13

    slimer13 Deer Park Well-Known Member

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    I was just wondering why some states do not honor cpl's from other states with stricter requirements for getting a cpl than they do but my question was awnsered in posts 13 and 14. Nothing like selective interpretation of the 2a:rolleyes:.
     
  18. fd15k

    fd15k Tigard,OR Well-Known Member

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    2A has nothing to do with it... yet :)