Open carry in Upstate NY - Page 2
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Thread: Open carry in Upstate NY

  1. #11
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    I know a lot of people, including myself who have open carried during hunting season (all season) in town, in stores and diners and have never thought of it as illegal. It's just something we do and it doesn't seem to bother anyone. It for sure is the most comfortable way to carry.

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  3. #12
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    Quote Originally Posted by nogods View Post
    It is illegal to posses a handgun in New York State except to the extent allowed by law - thus the default is no carry of any sort. You can only get a concealed carry permit, so if you open carry you are violating the handgun law because you don't have a permit for open carry.
    This is the key. The very first New York law about handguns, is that ALL carrying of handguns is illegal (265.01). Then there are a bunch of laws that allow carrying of handguns under certain conditions. Each type of license described in 400.00 states "have and carry concealed."

    The absence of a specific law banning open carry does not make it legal by default. Rather, the absence of a specific law allowing open carry, makes it illegal by default.

    Of course, the extend to which this law is enforced depends greatly on your community, and the law enforcement in that community. If the posted speed limit is 45, but no one is ever issued a ticket unless they go over 65, that doesn't make the legal speed limit 65. Technically open carry is illegal in NY, even if it is an accepted practice in your community.

  4. Quote Originally Posted by rheaj View Post
    The absence of a specific law banning open carry does not make it legal by default. Rather, the absence of a specific law allowing open carry, makes it illegal by default.
    Not true. The legal system is designed in restrictions. There's no law saying that you're allowed to breath. Does that make it illegal? Plus Nevada doesn't have a specific law making open carry legal, but it's de facto legal. States without specific statutes allowing open carry are called "free carry" states.

  5. #14
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    I can't speak to the laws of other states. The question was posed about New York specifically, and I'm only talking about what I understand NY law to be (and I'm not a lawyer). New York has a law (penal code 265.01) that makes ALL handguns illegal.

    This means that in order for you to possess or carry any handgun in New York State, there must be a SPECIFIC law that allows you to do so.

    Penal Code 400.00 allows for the concealed carry of handguns to properly licensed persons.

    Open carry is not permitted by Penal Code 400.0, and therefore violates Penal Code 265.01.

    If New York State did not have 265.01, then yes, open carry would be legal by default. But it does, so open carry is illegal.

  6. #15
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    Quote Originally Posted by rheaj View Post
    I can't speak to the laws of other states. The question was posed about New York specifically, and I'm only talking about what I understand NY law to be (and I'm not a lawyer). New York has a law (penal code 265.01) that makes ALL handguns illegal.

    This means that in order for you to possess or carry any handgun in New York State, there must be a SPECIFIC law that allows you to do so.

    Penal Code 400.00 allows for the concealed carry of handguns to properly licensed persons.

    Open carry is not permitted by Penal Code 400.0, and therefore violates Penal Code 265.01.

    If New York State did not have 265.01, then yes, open carry would be legal by default. But it does, so open carry is illegal.
    But nowhere does it say it is illegal to open carry in NY, I believe if there is no law, then it is legal. The police can charge you with anything they want, it doesnt mean it is right or will stick in court. I understand how NY state is very anti-gun, but I am willing to be the first to step forward and educate the folks that guns are not bad, people are. To all you guys who say it is illegal to open carry in NY, please tell me the charge and statute number that I will be nailed with. There has to be a charge if I am arrested, and don't say a violation of my permit requirements, because that is not a charge.
    I would rather die on my feet, than live on my knees!

  7. #16
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    I believe you could be charged with violating 265.01:

    Code:
     265.01 Criminal possession of a weapon in the fourth degree.
    
       A  person  is  guilty of criminal possession of a weapon in the fourth
       degree when:
       (1) He or she possesses any firearm....
    Possession of any type of firearm (openly carried or otherwise) is illegal under 265.01. However, section 265.20 lists exemptions to 265.01. Among other things exempted (like rifles and shotguns), we are specifically talking about:

    Code:
     265.20 Exemptions.
    
        a.  Sections  265.01,  265.02.... shall not apply to:
        ........
        3.  Possession  of  a pistol or revolver by a person to whom a 
            license therefor has been issued as provided under
            section 400.00...
    As mentioned before, 400.00, specifically allows only concealed carry of handguns. Open carry is not permitted by 400.00, therefore open carry is not exempted from 265.01, therefore open carry is technically a violation of 265.01 and could result in a charge of criminal possession of a weapon in the fourth degree.

    I recommend consulting a lawyer about it if you are actively carrying openly. The courtroom is not the best place to find out whether or not you're right about any particular legal issue.

  8. #17
    Don't take this as gospel because I have not had a chance to complete research on the issues (and the cases I'm using are 25 years old so there may have been legislative changes that impact the decisions) BUT:

    I had some time to do a bit of research, and found something I didn't expect - the NY Court of Appeals (NY's highest court) held that Penal Law section 265.03 does not apply to anyone with a permit under Penal Law section 400, because Section 265.20 exempts such persons from the application of section 265.3, EVEN IF THE PERSON IS IN POSSESSION OF A FIREARM OUTSIDE THE SCOPE OF THEIR PERMIT (in that case, the person had a permit for possession in his home, but was caught with the firearm outside of his home.)

    Presumably, the same would apply to all the other exempted penal code sections listed in section 265.20, which are: Sections 265.01 (except subdivision 3), 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15 and 270.05.


    Here is how a lower court described the court of appeals decision (BTW - the Court of Appeals did not issue a lengthly decision, instead it adopted the dissenting opinion of the Appellate Division)


    In People v Parker (52 NY2d 935 [1981], revg 70 AD2d 387 [1st Dept 1979]) and adopting dissenting opinion of Justice Birns, the defendant had a premises permit for a weapon which he took out of his home and with which he threatened to shoot his girlfriend. The court -- after a lengthy discussion of Penal Law 400.00 -- held that in such a case the defendant could be tried for menacing, attempted assault and violation of the terms of his license but not for felony possession of a weapon. In the Parker case, of course, the defendant had a permit for the particular weapon used.

    In People v Serrano (71 AD2d 258, 259 [1979], affd 52 NY2d 936 [1981]), the court held that felony weapons possession charges would not lie where the charge concerned "'[possession] of a pistol or revolver by a person to whom a license therefor has been issued'". (Penal Law 265.20 [a] [3].) In that case, the defendant had a "premises" license for the particular weapon in question and felony prosecution would not lie even though the defendant violated the terms of his license by possessing the weapon outside of his place of business.

    Applicable statutes and case law spell out a HN4clear policy of limiting to the misdemeanor level all prosecutions for the violation of weapons possession where a license is involved. Obviously, the weapon involved must be that which was registered. That policy cannot apply to the defendant at the bar, as he did not have a license for the weapon he was carrying.

    People v Moore, 127 Misc. 2d 402 (1985)
    So it looks like open or concealed carry might not violate any of the anti-gun possession laws in NY so long as the person has any permit under section 400 for the particular weapon involved (except for the school and educational grounds exceptions.)


    This would not apply to 265.6 (schools), and 265.01(3), which states:

    (3) He or she knowingly has in his or her possession a rifle, shotgun or firearm in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, or upon a school bus as defined in section one hundred forty-two of the vehicle and traffic law, without the written authorization of such educational institution;

  9. #18
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    Great discussion. Maybe I should start a new thread but so many well thought out positions here.
    I understand that NY does not offer non resident permits.
    Does anyone know any legal way around this? What if you own a house in NY but not your main residence. (think since still a non resident, no go) There must be some exceptions. Well it is TPRNY so maybe not.
    Thanks for the input.

  10. #19
    In Bach v. Pataki, 408 F.3d 75; certiorari denied, 126 S. Ct. 1341 (2006), a non-resident challenged NY's refusal to issue permits to non-residents.

    He lost on all arguments, but even if all the other arguments he lost on were still good law today, he would now have at least a chance under his second amendment argument because the court dismissed that argument with this holding:

    Accordingly, we hold that the "right to keep and bear arms" does not apply against the States and affirm the district court's dismissal of Bach's Second Amendment claim.

  11. Interesting test case. I'd certainly be interested in a follow up post on your results. A word of caution though. While your case is going through the courts and lengthy appeals, you will most certainly lose your permit and any associated handguns on it will most certainly be confiscated pending any outcome. I would suggest you read the thread about the case presented in Westchester County and go on record suggesting that the test case be extended beyond the borders of one county to the entire state as I have. As state residents we should have equal rights (to carry unrestricted) regardless of our county of residence. Equal treatment under the laws of the state should be afforded to all law abiding licensed citizens.

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