An idea to attack "public gatherings"

Discussion in 'GA Laws and Politics' started by viper32cm, Oct 19, 2006.

  1. viper32cm

    viper32cm New Member

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    One of the goals of law is certainty. As anyone who studies our awful carry laws or frequents this site knows the "public gathering" restriction is incredibly vague.

    There is a whole line of cases surronding this concept, lawyers like to call it "legality". The hallmark of these cases are where the legislature have written laws that are unclear.

    Essentialy if a law is not clear enough to tell a citizen what they are allowed and not allowed to do then it is unconstitutional. (Void-for-vagueness) This is the opposite side of the old saying "Ignorance of the law is no excuse." You can't resonably expect someone to know the law when its not even clear what the law means.

    I would commit to anyone interested the cases of Papachristou v. City of Jacksonville and Keeler v. Superior Ct.

    This isn't a 2nd Amendment based attack, but it doesn't have to be either. This is more along the lines of a due process attack. To be successful I think we'd have to go federal court, but... it might work out.

    And the unofficial opinions of the AG don't count for this type of analysis (meaning they couldn't be used as evidence of clarity in the law). See Hopkins v. State.

    Thoughts, feelings, etc.
    If you all want reporter numbers for these cases, that might take a while for me to find, but I can get them. And no, none of these cases are from a Georgia court and none are from the 11th Circuit. However, Papachristou is a Supreme Court case. But Papachristou is where I got the majority of this idea and I'm sure there are other cases out there that would be more persuasive for an 11th circuit court that stand for the argument I'm presenting.
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Viper, this vagueness argument has been tried before - unfortunately. I thought for a second from the title you were talking about actually attacking a public gathering!
     

  3. viper32cm

    viper32cm New Member

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    Do you remember what the name of the case was?
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Jordan v. State, 166 Ga.App. 417, 304 S.E.2d 522 (1983).
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Byrdsong v. State, 245 Ga. 336, 265 S.E.2d 15 (1980).
     
  6. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Vaugeness

    I think the law is vague, but I can't really think of a better way to word it and still keep the same legislative intent. That is, I can't re-word it to make it clearer and easier to understand without significantly broadening or limiting the places armed civilians can go.

    So if some future Court over-ruled the precedent that Malum has cited for us, the legislature would be forced to do something. What would they do? Would they follow the KISS principle and just ban guns anywhere outside of your home, your car, and your place of business? Would they define "public gatherings" in such a way that it includes shopping malls, movie theaters, fast-food restaurants, and even public sidewalks if there are many people walking on them at the time?

    I suppose they could just abandon the "public gatherings" clause and just ban weapons at the named locations only, such that any place not specifically mentioned would be OK to carry at. I like this option the best. The anti-gunners would have a fit, however. They'd probably propose to ban guns from any place that more than 3 children are within eyesight of the gun-packer. Do it for the children's safety, they'll say.

    If we force the legislature to mess with the public gatherings law because of court action against the current version, I think we'll get a worse law than what we have now. On the other hand if we convince the legislature to amend the law on their own (and we may cite the vagueness of the law and the difficulty in its application when we ask them to modify it), we are more likely to get a less-restrictive law than what we have now.
     
  7. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Chilling of Recognized Rights

    Also, isn't it true that in many of the cases involving criminal laws being found unconstitutional for their vagueness, the citizen alleges that because of the uncertainty in the law, people may reluctantly choose not to engage in a perfectly legal exercise of a constitutional right, simply because they're afraid a police officer will falsely arrest them under this poorly-worded law?

    If that's true, then we have another problem. Most appellate courts have never found a "right" for civilians to carry weapons outside of their homes. It's not like a law against "fighting words" that has inherent conflict with the First Amendment and the well-established principle of free speech. We would have to convince a court that carrying a gun in public is an important right of the people, and then we'd have to argue that the vague law "chills" the exercise of that right by making the citizens unneccessarily timid and unsure of when they can put their rights to use.

    In Georgia, of course, we have a constitutional right to OWN guns and keep them in our homes, but our constitution basically says that the Georgia Legislature has a blank check when it comes to the "manner" in which they are carried.
     
  8. mzmtg

    mzmtg Active Member

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    Re: Chilling of Recognized Rights

    That is the exact reason my dad said he doesn't carry, even though he has his GFL.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Chilling of Recognized Rights

    It is not quite that dire. Even in the most vehemently anti-gun cases (mostly from the early twentieth century, and much of which you can find quoted on these forums in threads from long ago) the court is clear to point out that the regulation cannot entirely deprive the right. In other words, the General Assembly has to leave some form of "bearing" in place, even when they regulate the "manner." Historically, that meant open carry.

    I get incensed, however, in discussing "manner" language to allow place restrictions when the General Assembly specifically voted down the power to regulate the place of carry when they adopted the constitutional amendment!
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    So as not to take Viper's thread too far off topic, I have made my further comments here at a Link to History.
     
  11. GeorgiaGlocker

    GeorgiaGlocker Romans 1:16

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    As GS1 has proposed I think we just should insert into the law that anyone who has been issued a GFL would be exempt from the public gathering clause of the statute.
     
  12. mzmtg

    mzmtg Active Member

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    In that case, it could be done away with all together, since it is illegal to carry a pistol anywhere public without a GFL.
     
  13. Gunstar1

    Gunstar1 Administrator

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    That is true for walking around, but you are forgeting that unlicensed people can have a gun in their car (you know, in an open manner and totally exposed to view or in the glove compartment, console, or any other similar closed compartment).

    Remember, parking lots of the place are a part of that public gathering.
     
  14. viper32cm

    viper32cm New Member

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    Gunsmoker you are right about the chilling of recognized rights being important, but IIRC the line of reasoning that I'm talking about has been used to strike down statutes which make it illegal to carry "burglar tools" which seems to be an analogous situation to trying to prevent the carry of weapons to public gatherings. In each instance it's pretty clear what the legislature is trying to do (prevent burglaries and prevent shootings at large events) but these are inchoate statutes for inchoate crimes. And if the crime they are trying to punish is too "incomplete" then it's not permissible for the state to exact punishment against the individual until the crime becomes more definite.

    Hrm, maybe I should I talk to my criminal law professor about this

    The other side of the coin is the effect any judgment in our favor would have. Legislatures don't like being overturned, and could harm us, so yeah maybe it is better to change from the inside.

    BUT... If courts were applying all rights equally and following the rule of law this wouldn't even be an issue. We'd have the courts solidly on our sides and we could use judicial processes to hammer away any anti legislature in the country (a lot like the ACLU and the 1st Amendment). But that's the sad state of affairs in our country.