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Gun Laws In Plain English Attorney General UnOfficial Opinions Georgia Firearm Caselaw Weapons Related Georgia Code

 
Georgia Firearm Caselaw

CaseCiteYearDescription of Opinion
Nunn v. State1 Ga. (1 Kel.) 2431846The state of Georgia may not violate the right to openly carry a "breast pistol" in the hand, which is protected by the Second Amendment. In dicta, the court stated that Georgia could regulate or prohibit concealed carry without infringing on the Second Amendment. No state constitutional right to bear arms in 1846.

The court clarified the scope of the right protected as follows:
"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all of this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State."

Cooper and Worsham v. Savannah4 Ga. 681848The words in the Nunn v. State case, the "right of the people," means white people. "Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office."
Stockdale v. State32 Ga. 2251861A pistol carried by a man with no effort to conceal it; with the barrel inserted beneath the pantaloons in front, whilst the man's coat was unbuttoned, and the man had on no vest at the time; that the cock, cylinder, and caps of the pistol could be plainly and distinctly seen, and any person could know that it was a pistol, without any difficulty, is not concealed.

Upholds Nunn v. State's constitutional right to bear arms openly, as that "decision has been constantly adhered to from that time to the present, and must continue to stand as the law of this Court on that subject."

The court notes that it is "impossible for one to have and bear about his person a pistol or weapon of any kind, without having some part of the weapon concealed from view."

This is the decision that originated the idea of putting others on notice that they are armed, and dangerous persons, to be avoided upon sight.

Note that bear = carry, in the Supreme Court's estimation.

Hill v. State53 Ga. 4721874The public gathering prohibition does not violate the state constitution.  Please see the article, The Public Gathering Prohibition - The Bloody History of the Camilla Massacre.

The judge writing this opinion is very hostile to the carry of pistols, which he only reluctantly agrees are "arms" at all, because of decades of binding precedent declaring pistols to be arms.

Interesting quotes:  "The practice of carrying arms at courts, elections and places of worship, etc., is a thing so improper in itself, so shocking to all sense of propriety, so wholly useless and full of evil, that it would be strange if the framers of the constitution have used words broad enough to give it a constitutional guarantee."

"If the general right to carry and to use them exist; if they may at pleasure be borne and used in the fields, and in the woods, on the highways and bye-ways, at home and abroad, the whole declared purpose of the provision is fulfilled. The right to keep and to bear arms so that the state may be secured in the existence of a well regulated militia, is fully attained. The people have, or may have the arms the public exigencies require, and being unrestricted in the bearing and using of them, except under special and peculiar circumstances, there is no infringement of the constitutional guarantee.  The right to bear arms in order that the state may, when its exigencies demand, have at call a body of men, having arms at their command, belonging to themselves and habituated to the use of them, is in no fair sense a guarantee that the owners of these arms may bear them at concerts, and prayer-meetings, and elections. At such places, the bearing of arms of any sort, is an eye-sore to good citizens, offensive to peaceable people, an indication of a want of a proper respect for the majesty of the laws, and a marked breach of good manners."

The constitution was subsequently amended, three years after this case, to strike the words "A well regulated militia being necessary for the security of a free state" from the state constitution. A constitutional convention also took up a proposed amendment to allow the General Assembly to regulate "place" in addition to "manner," but the amendment was defeated.  For more details, see the dissent in Strickland v. State.

Bice v. State109 Ga. 1171899The provision of law which prohibits carrying to a church, or other place where the people have assembled for Divine worship, any liquor or intoxicating drink, is violated when one attending such exercises at a named church has in his buggy a bottle containing whisky, and the buggy is left standing within one or two hundred yards of the church building during the exercises. The defense that such liquor was carried there to be used by the wife of the person carrying it, in case of a sudden attack of illness, will not avail against the plain words of the statute, which itself furnishes the only exceptions allowable to the operation of the law.
Stripling v. State114 Ga. 538, 540, 40 S.E. 73319011. On the trial of one charged with carrying a concealed weapon, it was error to instruct the jury as follows: "I charge you, gentlemen of the jury, that a pistol must be carried in such an open manner, and so fully exposed to view, that a person meeting the one with the weapon would readily see and know that he had a pistol about his person." (a) One meeting another may not see a pistol which the other carries, although fully exposed to view in the manner in which it is carried. (b) It is the manner in which the weapon is carried, and not the fact that one meeting him did not see it, which determines the guilt of the accused.
2. The evidence of a witness that the defendant had a pistol in his pocket; that he did not see it, but saw the shape of it,-is not sufficient to authorize a conviction.
3. Nor, in such a trial, can a conviction be lawfully had upon the evidence of witnesses who testify, in effect, that they saw in the pocket of the accused enough of the weapon exposed to enable them to perceive that it was a pistol.

Modesette v. State115 Ga. 5821902One who, after arriving at a "public gathering," there comes into possession of a pistol, does not render himself liable to prosecution under the provisions of Pen. Code, ß 342, which prohibits any one, except certain designated officers of the law, from carrying a pistol about his person "to a court of justice *** or any other public gathering in this state, except militia muster grounds."
Culberson v. State119 Ga. 8051904Defendant was caught too close to the Jehovah Colored Baptist Church after taking a pistol from "Hodo," who seemed to want to shoot somebody with his pistol. Defendant was stopped by one of the state's witnesses, who demanded to know what he was doing with the pistol. One of the state's witnesses demanded the pistol, and Defendant delivered it to him. The Court reversed his conviction because it was "Hodo," and not the defendant who brought the weapon to the public gathering.
Wynne v. State123 Ga. 5661905A public Fourth of July barbecue "at which negroes and some white people gathered, to the number of some 400 or 500," is a public gathering.
Amorous v. State1 Ga. App. 3131907"Ball Amorous" carried too closely to the Sanders Chapel Baptist Church, Colored.
Strickland v. State137 Ga. 11911Requirement that one obtain a discretionary license from the county ordinary (i.e., probate) before carrying a revolver outside of one's home or place of business does not violate the state constitutional provision that declares " The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms shall be borne."

Overrules Nunn v. State's simply by declaring that the court could not have possibly meant what it plainly said, and then ruling that the Second Amendment does not affect state law.

The dissent is much better than the court opinion.

To read more about the other factors in Georgia leading up to this racist law and court decision, head over to GeorgiaCarry.Org and read the Special Report: Disarm the Negros - The Racist Roots of Georgia Gun Laws

Glenn v. State10 Ga.App. 128, 72 S.E. 9271911Minors under the age of 18 have no right to bear arms at all. It is entirely within the province of the legislature to prohibit the exercise of a right by a minor that the legislature might only regulate in the case of adults.

Interesting quote from decision: "So far as the writer of this opinion is concerned, he is decidedly of the opinion that the possession of a pistol or revolver about the person, either by a minor or an adult, concealed or open, is a menace to individual safety and to law and order . . ."

Jackson v. State12 Ga. App. 427 (2), 77 S. E. 3711913The statute in question was not intended to prevent the manual possession of a pistol for such a length of time as is necessary to examine it, with a view to its purchase, nor to penalize the act of one who, having the pistol in his hand for no other purpose than that of examination, might be temporarily called aside by some one wishing to speak to him.
Miller v. State12 Ga. App. 479, 77 S. E. 6531913"Place of Business" includes an employee of that business.
Cosper v. State13 Ga. App. 301 (4), 79 S. E. 94, 96,1913One who finds a pistol on a public road and carries it to his home, solely for the purpose of safe-keeping, until the pistol is called for by its owner, is not guilty of a violation of the act prohibiting the carrying of pistols without a license.
Idellett v. State14 Ga. App. 5011914Employees have every bit as much right to carry at work as employers without procuring a license, as it was not the intent of the General Assembly to create an elite class of landed proprietors with the privilege of bearing arms. Therefore, the exemption from the licensing law for "place of business" is not limited to owners or overseers. Further, at a farm, a laborer's "place of business" includes, in addition to the buildings, the field, woodland, and meadow, and all parts of the farm.
Harris v. State15 Ga. App. 315, 85 S. E. 8131914A man, upon a sudden emergency necessitating the protection of his family, his property, or his person, could momentarily have a pistol in his manual possession without violating the law against carrying a pistol without first procuring a license.

Take a careful read as to what the "emergency" is!

Brown v. State15 Ga. App. 4841914Interesting facts.
Reagan v. State16 Ga. App. 3691915A landlord's rental property, while in the possession of the tenant, is not his place of business so as to exempt the landlord from needing a license to carry a pistol.
Usry v. State17 Ga. App. 2681915Carrying a pistol to a pawn shop to sell it is no defense to the charge of carrying a weapon outside of one's home or place of business without a license.
Leigh v. State26 Ga. App. 6371921"Place of business" exception for a license does not include a public road between two separate locations that are each considered a place of business.
Sockwell v. State27 Ga. App. 576271921A worship service held on a public camp ground made the camp grounds a public gathering.
Miller v. State50 Ga.App. 30, 177 S.E. 821934Manager of a Golf Club went to his sister-in-laws house to pick up a pistol to give to a night watchman at the club. Was arrested on the front porch for carrying a concealed weapon without a license outside of his home or place of business.
Walker v. State63 Ga. App. 2341940"That is the negro [pointing at the Defendant] that I saw."
Farmer v. State112 Ga.App. 4381965Having a gun accessible in a car up to 200 yards away may violate the public gathering provision.
Head v. State235 Ga. 6771975Proof that a person carrying a pistol does not have a license is an element of the crime of carrying a firearm without a license (OCGA 16-11-128), and the burden of proof is on the State. It is not a defense to be raised by the defendant.
McCroy v. State155 Ga. App. 7771980When the police officer admits that the defendant had the "butt end of a pistol sticking out" of his right front pocket, the charge of carrying a concealed weapon is not valid. A charge of carrying a pistol without a license is not precluded when the defendant is outside of his home, car, or place of business, and the provisions relating to no license being required of individuals engaged in legal hunting, fishing, or sport shooting are inapplicable.
Poole v. State159 Ga.App. 792; 285 S.E. 2d 2051981While convicted of the crime of carrying concealed, the court may have found that his taxi was his place of business had he not had the firearm in his front pocket while outside of the vehicle and admitted it was not for self defense but was returning it a relative and simply forgot about it being in his pocket.
Goss v. State165 Ga. App. 4481983A pistol carried in the pocket with the handle protruding is not concealed.
Jordan v. State166 Ga. App. 4171983Possessing a loaded weapon on Loganville Auto Auction grounds when many people are present in the parking lot constitutes the offense of carrying a deadly weapon to a public gathering.
Gainer v. State175 Ga. App. 7591985A pistol in the pocket is concealed, even if a police officer can immediately recognize the bulge as a pistol.
Moody v. State184 Ga. App. 7681987A gun slightly protruding from under the seat is concealed because it is not "fully exposed."
Patterson v. State196 Ga.App. 7541990Officer saw someone pull what looked like a firearm from where it was concealed by clothing and tossed the object into a car. The officer confirmed the object was a firearm. The court said "Based on the arresting officer's testimony in this case, the trial court was authorized to conclude that probable cause existed to arrest the appellant on the charge of carrying a concealed weapon even before he was asked whether he had a license to carry the pistol."
State v. Burns200 Ga. App. 161991McDonalds is not a public gathering. The General Assembly distinguished between "public place" and "public gathering."
Anderson v. State203 Ga. App. 118 1992A pistol carried in such a manner as to expose only one inch below the jacket and be visible through an opening in the jacket is concealed, as it is neither "open" nor "exposed."
Hubbard v. State210 Ga. App. 141, 143-441993(1) A license is needed when carrying a firearm in a car that is owned by somebody else. (2) The parking area on the grounds of and in close proximity to a public gathering is itself a public gathering, (3) A large number of people under the age of 21 "hanging out" in the parking lot, eating and talking authorizes the jury to find that the parking lot is itself a public gathering.
Ely v. State222 Ga. App. 6511996Parking area of rental property over which the landlord retained no control is not landlord's "place of business" so as to exempt landlord from charge of carrying a concealed weapon.
Parrish v. State228 Ga. App. 1771997A gun visibly protruding from under the driver's seat violates the law unless one has a firearms license. "This law's purpose is to compel persons carrying such weapons to display them so that others, knowing they were armed and dangerous, could avoid them."
Foss v. Probate Court of Chatham County232 Ga. App. 6121998First offender status on a drug charge is still a "conviction" for purposes of the firearms license statute, and it is an ineligibility factor in spite of the fact that the first offender statute states, " The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction ."
Gay v. State233 Ga. App. 7381998Carrying a pistol in the pocket of one's shorts with one half to three quarters of an inch protruding while crossing the street near the Five Points Marta station constitutes carrying a concealed weapon. When police officers receive a tip that someone is carrying a concealed weapon, and the tip is not anonymous, it justifies a "Terry stop" for a pat down. " Although Georgia law does not prohibit carrying a pistol in a pants pocket with the butt exposed, the record here shows that the gun was not sufficiently visible to allow others to see that he was armed and dangerous."
Sturm Ruger & Co., Inc. v. City of Atlanta253 Ga. App. 7132002The state has preempted local firearms laws by adopting comprehensive statutes in the Georgia Firearms and Weapons Act (including the statutes relating to carry). More importantly, the state also expressly preempted the field by adopting a preemption statute, leaving only three narrow exceptions to total preemption. "The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject."

A.G. Thurbert Baker filed an amicus brief arguing for preemption. The AG's office also issued an opinion on preemption to the City of Columbus, which you can find here at http://www.georgiapacking.org/ga-ag/u98-6.htm

Ross v. State255 Ga. App. 4622002A handgun "half-hidden" in the backseat "is not 'fully exposed' and therefore constitutes an illegal concealed weapon."

Quirk: The court claims it was a ".9 mm semiautomatic handgun" - that's pretty small!

Lindsey v. State259 Ga. App. 3892003Motorist arrested for carrying a concealed weapon after police officer observed a handgun in the open side pocket of his passenger door during a traffic stop.
Lindsey v. State277 Ga. 7722004For a motorist without a firearms license, a gun must be either in the glovebox, center console, or similar compartment, or fully exposed to the view of others. The pocket of a door is not a "similar compartment" because it does not have a closing lid.
Herndon v. State277 Ga. App. 374, 626 S.E.2d 5792006Marta police officers do arrest for boarding Marta trains with a concealed weapon.
Megesi v. State277 Ga. App. 8552006"The issue presented here is whether it is permissible under our federal and state Constitutions for an officer involved in a traffic stop to temporarily take physical possession of a firearm in a vehicle even though the driver has not given the officer reason to think he is dangerous. We conclude that our Constitutions permit such a practice."
Brewer v. State281 Ga. 2832006The Supreme Court of the State of Georgia declares that the protections guaranteed by the Second Amendment to the United States Constitution do not apply to Georgia.
Moore v. Cranford285 Ga. App. 6662007Recognizing that the probate court "routinely" takes longer than the 60 days set out in the statute to issue firearms licenses, the court rules that a probate judge must wait for local law enforcement's "notification," by telephone and in writing, that three background checks have been conducted before probate judge may issue a GFL, even if such "notification" is not received within 50 days as required by statute. A "report" from state and federal agencies cannot be required, and no outside timeline is given.
GeorgiaCarry.Org, Inc. v. Coweta County288 Ga. App. 7482007Finds that Georgia's firearm preemption law, 16-11-173, which says localities may not restrict in any manner the carry or transport of firearms, does in fact preempt and void Coweta's ban on the carry of firearms while on the county's park land.
State v. Jones289 Ga. App. 1762008After an officer seized a rifle from plain view and ran the serial number to see if it was stolen, the Court of Appeals ruled that an officer does not have "carte blanch authority" to secure all weapons at a traffic stop. In order to justify a search of a vehicle for weapons, some conduct on the part of the occupants such as furtive movements or other indications of danger to the officer must be shown, and the officer must have an "objectively reasonable" belief that the occupants of a vehicle are "potentially dangerous."

Essentially overrules Megesi v. State. Megesi was a physical precedent only (meaning it is persuasive, but not binding on lower courts). Jones is a binding precedent (meaning all judges concur). The rule in Jones is that stopping someone (Tier 2 or higher) and seizing a weapon for inspection is not permissible, unless there is reasonable articulable suspicion of a crime based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Lee v. State298 Ga. App. 6302009It is the burden of the person arrested for carrying a concealed weapon to show that they had a permit to carry the firearm.
Summerlin v. State295 Ga. App. 7482009After stopping a car that had been reported as being the getaway car during a theft, an officer briefly questioned and then requested the driver exit the vehicle. The butt of a firearm was then seen sticking out between the driver and passenger seat. The gun was fully concealed by the driver before exiting and partially concealed after exiting. Conviction of carrying a concealed weapon was upheld.
State v. Burns285 Ga. 7812009Stand your ground immunity does not apply if you have the firearm unlawfully. This is just immunity from the trial, not the use of self defense in general.
Hill v. ClarkeGa. App. LEXIS 6602011After winning a mandamus action for a probate court judge's denial of a Firearm License, the trial court did not agree to awarding attorney's fees as is stated in the law. The Appeals court reversed and ordered the trial court to follow the law as stated and determine if judicial immunity applies (if immunity applies then the law as stated is invalid).
State v. GreenGa. S11A10372011To obtain immunity for self defense, the threat of force is all that is required when one reasonably believes that he must defend himself against anotherís imminent use of unlawful force. A person does not have to actually use force to obtain immunity.
Ferguson v. Perry2013A person who has been pardoned with restoration of all civil rights and freed from all disabilities is eligible for a Weapons License.
Hertz v. BennettGa. S13A12882013Probate Judge Andrew Bennett denied James Hertzís application for a license to carry a weapon based on Hertzís 1994 nolo contendere plea to five felony charges in Florida. Hertz applied for mandamus relief in superior court, alleging the denial violated the state statute and his constitutional right to keep and bear arms. The superior court affirmed. Because Hertzís nolo contendere plea makes him ineligible for a weapons carry license under Georgia law, and the statute as applied to him does not violate the United States or Georgia Constitutions, the Supreme Court also affirmed.

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