Open carry in Upstate NY
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Thread: Open carry in Upstate NY

  1. #1
    Join Date
    Jun 2010
    Location
    Upstate NY
    Posts
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    Open carry in Upstate NY

    I hope I can get some good insight on this....I have done alot of research, and I don't find any law regarding open carry in my area. My permit says permission to carry a handgun, no restrictions. I even called the county clerk and she said, just keep it concealed...no explanation. The same for the state police, they said to avoid any headaches keep it concealed. If there is no law regarding this, why is it an issue to open carry. Sure, people may react differently, but Im from a small rural area, and I don't see it becoming a major issue. Please give me some advise, its not that I want to start something here, its just more comfortable to open carry at times.
    I would rather die on my feet, than live on my knees!

  2.   
  3. #2
    Join Date
    Jun 2010
    Location
    Upstate NY
    Posts
    9
    Can anyone give me some information about open carry in New York State. I have found no laws or provisions saying open carry is illegal here. The under sherriff in my county said because I have a permit with no restrictions, I can carry however I want, even open. Please give me some insight on any laws.
    I would rather die on my feet, than live on my knees!

  4. #3
    Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

    An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

    Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.

  5. #4
    Quote Originally Posted by huddydrvr View Post
    Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

    An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

    Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.


    If there is no mention of open carry in the statute then it is not prohibited....making it legal by default.

    Average person falls under subparagraph 2(f) in the statute.

    NY PENAL Code 400.0

    2. Types of licenses. A license for gunsmith or dealer in firearms
    shall be issued to engage in such business. A license for a pistol or
    revolver, other than an assault weapon or a disguised gun, shall be
    issued to (a) have and possess in his dwelling by a householder; (b)
    have and possess in his place of business by a merchant or storekeeper;
    (c) have and carry concealed while so employed by a messenger employed
    by a banking institution or express company; (d) have and carry
    concealed by a justice of the supreme court in the first or second
    judicial departments, or by a judge of the New York city civil court or
    the New York city criminal court; (e) have and carry concealed while so
    employed by a regular employee of an institution of the state, or of any
    county, city, town or village, under control of a commissioner of
    correction of the city or any warden, superintendent or head keeper of
    any state prison, penitentiary, workhouse, county jail or other
    institution for the detention of persons convicted or accused of crime
    or held as witnesses in criminal cases, provided that application is
    made therefor by such commissioner, warden, superintendent or head
    keeper; (f) have and carry concealed, without regard to employment or
    place of possession, by any person when proper cause exists for the
    issuance thereof
    ;

  6. #5
    Quote Originally Posted by homerfire232 View Post
    Can anyone give me some information about open carry in New York State. I have found no laws or provisions saying open carry is illegal here. The under sherriff in my county said because I have a permit with no restrictions, I can carry however I want, even open. Please give me some insight on any laws.
    Better have you undersherriff friend write you up a letter saying so, and have it signed and notorized, out in the sticks or hunting I dont think there would be a problem, but carry anywhere around town and you will probably go to jail and lose your gun, and if enough crap was stired up over it you would probably lose your permit, New York state does what they want, and have for a long time

  7. #6
    Quote Originally Posted by mrjam2jab View Post
    If there is no mention of open carry in the statute then it is not prohibited....making it legal by default.

    Average person falls under subparagraph 2(f) in the statute.

    NY PENAL Code 400.0
    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.

  8. #7
    Join Date
    Jun 2010
    Location
    Upstate NY
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    Quote Originally Posted by huddydrvr View Post
    Your undersheriff friend needs to research the NY State code. NY law has no provision for open carry. All carry in NY state is concealed carry. I think the only time you can open carry is while hunting or target shooting, but perhaps there are other exceptions such as hiking or fishing. I've never checked since I don't intend to open carry. Open carry when outside on your own property is problematic; if you are in sight of a road or another residence you might have some difficulty.

    An unrestricted permit is a permit to carry concealed anytime and anywhere it is not otherwise specifically forbidden (such as in Federal buildings or schools). Most of us with NY carry permits have recreational restrictions, which means the issuing judge has decided that outside of our own residences, we can only carry while hiking, hunting, or at the range, or traveling from home to those types of activities. The restriction is administrative and does not carry weight of law, meaning that someone carrying outside of his restriction cannot be arrested and charged with a crime, but the issuing authority could revoke the permit. Not so for open carry; you could be arrested and charged with "menacing", which could be a misdemeanor or a felony, depending upon the situation. Not a good thing.

    Hope this answers your question. You can Google search the topic and get a lot of information (some of which is valid). YMMV.
    I don't think I would be charged with menacing.....

    S 120.13 Menacing in the first degree.
    A person is guilty of menacing in the first degree when he or she
    commits the crime of menacing in the second degree and has been
    previously convicted of the crime of menacing in the second degree
    within the preceding ten years.
    Menacing in the first degree is a class E felony.

    S 120.14 Menacing in the second degree.
    A person is guilty of menacing in the second degree when:
    1. He or she intentionally places or attempts to place another person
    in reasonable fear of physical injury, serious physical injury or death
    by displaying a deadly weapon, dangerous instrument or what appears to
    be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
    2. He or she repeatedly follows a person or engages in a course of
    conduct or repeatedly commits acts over a period of time intentionally
    placing or attempting to place another person in reasonable fear of
    physical injury, serious physical injury or death; or
    3. He or she commits the crime of menacing in the third degree in
    violation of that part of a duly served order of protection, or such
    order which the defendant has actual knowledge of because he or she was
    present in court when such order was issued, pursuant to article eight
    of the family court act, section 530.12 of the criminal procedure law,
    or an order of protection issued by a court of competent jurisdiction in
    another state, territorial or tribal jurisdiction, which directed the
    respondent or defendant to stay away from the person or persons on whose
    behalf the order was issued.
    Menacing in the second degree is a class A misdemeanor.

    S 120.15 Menacing in the third degree.
    A person is guilty of menacing in the third degree when, by physical
    menace, he or she intentionally places or attempts to place another
    person in fear of death, imminent serious physical injury or physical
    injury.
    Menacing in the third degree is a class B misdemeanor.
    I would rather die on my feet, than live on my knees!

  9. Let me remind you of a case in California where a certain man with a concealed carry permit absolutely insisted he was well within his legal right to open carry. He was warned several times by police before getting his carry permit revoked. You may very well within your right to open carry, but I'm going to say that the pragmatic conclusion would be to not open carry at all in public outside of what's considered recreational. New York is not a very gun-friendly state.

  10. #9
    Fact is, in NY it is illegal for anyone over 21 to even handle an unloaded pistol without a permit. This is why if you go to a gun shop you must show your permit before handling any pistols on display. Since the only permits are for concealed carry, that is only type of carry permitted in NY.


    Now, I've taken 3 (three) pistol safety classes from 3 (three) different instructors, and I've also extensively discussed the rules with my gunshop proprietor, who is also a retired NY State Trooper and firearms instructor. They have consistently stated that open carry is not permitted except in very limited circumstances, which I mentioned above. No doubt this is a combination of criminal code and caselaw.

    I believe you would be charged with menacing if you open carried publicly. You could certainly be shown to be deliberately carrying and attempting to intimidate others (even if that's not really your reason), which is the misdemeanor version. You would probably lose your permit and have all your pistols confiscated (the issuing official actually can do that even if you are not charged with anything). As others have pointed out, New York is not gun-friendly and the average person is not very comfortable with the concept of private citizens carrying firearms for other than hunting. The rural counties may be a lot more reasonable but the law is the same statewide.

    I'm not ready to test the law and try to open carry; but if you are, be my guest.
    Last edited by huddydrvr; 07-05-2010 at 01:01 AM. Reason: fix typos

  11. #10
    NY Penal Law sections 265.01 et seq contain the sections defining criminal possession of firearms and other weapons. Open carry in NY and you would be violating one of those provisions because your permit can at most authorize concealed carry. Thus you would not have an exception to the general rule to protect you from prosecution.

    You could still claim the second amendment authorizes you to open carry without a permit to do so but you'd be taking a big risk. Besides, there will many real criminals making that argument while trying to overturn weapons possession charges, so why take the risk yourself. Let them suffer the consequences if their arguments fail.

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