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GAGunOwner said:
With a big grin on his face he plays the "cop card." "I can carry here on campus but nobody else can!"
Read with the voice of the "church lady" -

Well, isn't that special? (Isn't he special?)

:D
 

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I guess I shouldn't talk - I carried every day all the way through school - but, then, I was not a hypocrite, as I thought everybody else should have been able to do the same.

I am not sure your acquaintance feels the same way (everybody wants to be "special," even if they have to hold somebody else down to feel that way).
 

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I don't have the law in front of me, but IIRC, techincally officers are either supposed to be on duty or going to or from duty to have a firearm in a "school safety zone". I know of one university in the Atlanta area that does not allow off duty officers from other agencies to carry on campus. The law sets some exceptions such as an authorized shooting sport event or for authorized demonstrations such as historical displays.
 

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Discussion Starter · #5 ·
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GAgunowner, you have identified one of many quirks in the statutes. 127.1 lists within it some exemptions. 130 lists more exemptions that apply to 126-128. So, being on either list will get you an exemption. There is at least one subtle difference, though. The exemptions in 130 are laid out as affirmative defenses. This means that the state need not prove that the exemptions don't apply. It is not clear whether the exemptions of 127.1 are affirmative defenses or not. A defendant could argue that, if he raises one of the exemptions of 127.1, the state would have the burden of proving that the exemption does not apply. But, aside from that level of detail, someone could qualify for exemptions from either or both lists.
 

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They pass laws without understanding the laws that already existed.
 

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GAGunOwner said:
So just to sum things up, if you are listed in 130 you are exempt from 127.1 and you don't have to be "on duty" to exercise this "right"?
Thanks
Yes, but I'd say it slightly differently. There is no "on duty" requirement in 130 for the exemption afforded someone on the list.
 

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The Georgia Military exemption applies to members of the armed forces, on or off duty. Also, it applies to members of the National Guard that are only part-time military.

I am not a lawyer. Most cops do not know about this law, so you'd have a lot of explaining to do if you are caught carrying somewhere. If you're going to use the military exemption, carry a copy of the appropriate statutes and the Attorney General's unofficial opinion, as well as the card for an attorney if you actually do get arrested and charged, which is still very possible.

I am a member of the Georgia Army National Guard, so I qualify for the military exemption. The same would be true of the Regular Army, Marine Reserves, and so on. I have no idea whether members of the Georgia State Defense Force are also afforded these exemptions while off-duty. I also do not know if members of the National Guards of other states would be exempt.

I am not a lawyer.

Military members are exempt from the following:
16-11-126 prohibits the carrying of firearms and other types of weapons (brass knuckles, knives with blades over 2 inches, collapsable batons, etc.) It also prohibits the carry of a pistol without a holster, and it makes it a crime to keep a firearm in an automobile in certain ways without a license.
16-11-127 prohibits Georgia Firearms License holders from carrying in "public gatherings" including, but not limited to, sporting events, churches, political rallies, public buildings, bars, and restaurants which serve alcohol.
16-11-127.1 prohibits weapons from within 1000 feet of any school, including colleges.
16-11-128 prohibits carrying a pistol without also carrying a license.

Not Exempt:
16-11-134 prohibits discharging a firearm while intoxicated.
16-12-123 prohibits possession on any commercial plane, train, or bus without permission.
16-12-127 prohibits possession in any transportation terminal.
12-3-10 prohibits possession of weapons in state parks or historical sites.
Federal law prohibits possession in National Parks, and certain types of federal buildings (courthouses, etc.). It also prohibits possession on military compounds.
State, federal, and municipal laws regarding discharges of weapons, use of force, and possession of firearms while in commission of other crimes.

16-11-130.
(a) Code Sections 16-11-126 through 16-11-128 shall not apply to or affect any of the following persons if such persons are employed in the offices listed below or when authorized by federal or state law, regulations, or order:
(1) Peace officers, as such term is defined in paragraph (11) of Code Section 16-1-3, and retired peace officers so long as they remain certified whether employed by the state or a political subdivision of the state or another state or a political subdivision of another state but only if such other state provides a similar privilege for the peace officers of this state;
(2) Wardens, superintendents, and keepers of correctional institutions, jails, or other institutions for the detention of persons accused or convicted of an offense;
(3) Persons in the military service of the state or of the United States;
...

38-2-2.
As used in this chapter, the term:
...
(2) 'Active service' and 'active duty' mean military duty in or with a force of the organized militia (not including the inactive National Guard) or in the Military Division, Department of Defense, either in a full-time status or in a part-time status, depending upon the conditions under which the duty is performed. {note: the term "active duty" is NOT used in statute 16-11-130, but it IS used in the unofficial Attorney General's opinion u97-13}
...
(5) 'Military service of the state,' as to military personnel, means service in or with a force of the organized militia or in the Military Division, Department of Defense.
...
(10) 'Organized militia,' 'all or any part of the organized militia,' 'organized militia or any part thereof,' 'any force of the organized militia,' and 'organized militia or any force thereof' mean, severally, the Army National Guard, the Air National Guard, the Georgia Naval Militia, when organized, and the State Defense Force, when organized, and include any unit, component, element, headquarters, staff, or cadre thereof as well as any member or members.
UNOFFICIAL OPINION U97-13

To: Judge May 9, 1997
Probate Court of Houston County

Re: Under Georgia law, active duty military personnel are exempted from the requirement of a firearms permit. The exemption is not limited to the performance of military duty. These personnel may, upon request, obtain a firearms permit if otherwise qualified. Their dependents may be issued a permit if otherwise qualified only upon establishing residency in this state. Law enforcement officers are also exempt from the requirement to obtain a permit.

This unofficial opinion is issued in response to the questions you have raised concerning the proper application of O.C.G.A. § 16-11-130 to military and law enforcement personnel. For clarity, I have set forth each of your questions and responded seriatim.

First, you have inquired if active duty military personnel are exempt from the permit requirements. The exemptions are set forth in O.C.G.A. § 16-11-130. I note that this Code Section exempts certain persons from "Code Sections 16-11-126 through 16-11-128." Thus, persons so exempt are exempted not only from the requirement of a permit to carry a firearm (O.C.G.A. § 16-11-128), but are also exempt from the provisions regarding the carrying of concealed weapons (O.C.G.A. § 16-11-126), carrying deadly weapons to or at public gatherings (O.C.G.A. § 16-11-127), and carrying weapons within school safety zones or at school functions (O.C.G.A. § 16-11-127.1) But see O.C.G.A. § 16-11-127.1(c)(3), which appears to limit the exemption to persons actually participating in military training programs.

Under prior versions of this statute, it was clear that the exemption applied only to the performance of official duties. See, e.g., Talley v. State, 129 Ga. App. 479, 481 (1973); 1987 Op. Att'y Gen. U87-28. However, at that time the exemptions applied to these persons while engaged in the pursuit of official duties or when authorized by law. Since that time, the statute has been amended. Official Code of Georgia Annotated § 16-11-130(a) now provides that the exemptions apply to "persons . . . employed in the offices listed below." Persons in the military service of the State of Georgia or of the United States are among those so listed. O.C.G.A. § 16-11-130(a)(3). Thus, it is my unofficial opinion that active duty military personnel are exempt under Georgia law from the requirement for a firearms permit.

Secondly, you have asked if the exemption is limited to the performance of military duties on the base. As noted above, under the current version of the statute, persons so employed are exempt; the statute no longer limits the scope of the exemption to the performance of official duties. Thus, my response to your question is in the negative.

In your third question, you ask if active duty military personnel may, notwithstanding the exemption, apply for and be issued a firearms permit. Permits may be issued only to a resident of this state whose domicile is in the county of application. O.C.G.A. § 16-11-129(a). Generally, military personnel are not residents of Georgia and thus they were not eligible for the permits under a former version of the statute. See 1976 Op. Att'y Gen. U76-71. Under the current statute, however, an active duty member of the armed services who, although not a domiciliary of this state, resides in the county or on a military reservation in the county may nevertheless obtain a firearms permit if otherwise eligible. O.C.G.A. § 16-11-129(a). Thus, it is my unofficial opinion that a member of the armed services may, provided that he is otherwise eligible for the permit, apply for and be issued a firearms permit notwithstanding the fact that he is not domiciled in Georgia.

Your fourth question concerns the residency requirements for an active duty military applicant. Under the plain language of the statute, a member of the armed services may, if otherwise eligible, obtain a permit if he resides in the county of application or on a military reservation located in whole or in part in that county at the time of application.

Fifth, you inquire regarding the eligibility of a spouse for a permit. As noted supra, military personnel (and their dependents) are generally not residents of Georgia and thus the dependents are not eligible for the permits. See 1976 Op. Att'y Gen. U76-71. However, this is not an ironclad rule; a member of the armed services may choose to establish a domicile in Georgia and, if this is done, the member's dependents would be eligible for a permit if otherwise qualified. In making a determination of residency, the Probate Judge should consider such factors as payment of Georgia income or property taxes, place of residence, registration to vote, registration of automobiles, whether the dependent is licensed to drive by this state, and other similar factors. See, e.g., 1981 Op. Att'y Gen. U81-26. If satisfied that the dependent has established residency in this state, the Court may consider the application for a firearms permit.

Finally, you have inquired about the scope of the exemption from the concealed weapon, public gathering, school zone, and license provisions applicable to full-time peace officers. Peace officers are exempted from these provisions by O.C.G.A. § 16-11-130(a)(1). The scope of the exemption is the same as that for active duty military personnel. Thus, it is my unofficial opinion that the exemption for peace officers is not limited to their duty hours.

In sum, it is my unofficial opinion that active duty military personnel are exempt from the requirement of a firearms license. The exemption is not limited to military activity on the military reservation. Although not domiciled in this state, active duty military personnel may nevertheless obtain a firearms license if they are otherwise qualified. Dependents of military personnel are not eligible for a firearms license unless the Probate Judge first determines that they have established domicile in that county. Full-time peace officers are entitled to the same exemption as are active duty military personnel.

Prepared by:

NEAL B. CHILDERS
Senior Assistant Attorney General
Note: this is an UNOFFICIAL OPINION. The Attorney General's office is required by law to provide guidance when requested to the legal community. These opinions are not binding in any way, so police, judges, and district attorneys can ignore them. Even the attorney general's office can later change their mind and take an opposing approach. HOWEVER, these unofficial opinions are usually followed.

I am not a lawyer.
 
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