GSDF membership = right to carry concealed?

Discussion in 'General GWL Questions' started by geaux_tigers, May 11, 2005.

  1. geaux_tigers

    geaux_tigers Member

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    In looking for info about getting a weapon permit, I found a thread on packing.org where one of the posters said that he met with a probate court judge and discussed concealed carry at length. He said that one of the topics discussed was the right of any military personel to carry concealed in GA without a permit. The poster eluded to the fact that this included Georgia State Defense Force members.

    That caused me to read the 16-11-126 through 16-11-130 sections as well as much of the code under 38-2. This is what stood out in my mind:

    *16-11-130(a)(3) states that members of the state military are exempt from sections 16-11-126 through 16-11-128.

    *38-2-2(5) indicates that 'Military service of the state' means service in the organized militia of the state of Georgia.

    *38-2-2(10) states that 'organized militia' includes the State Defense Force.

    *16-11-130 section does not seem to include any "active duty" or "in the performance of duties" type language.

    I have not heard anyone address this directly. After reading some of the other postings, I know there are some attorneys around here. You guys have any thoughts on this? Am reading this stuff incorrectly or would this just be a difficult argument to make?
     
  2. ber950

    ber950 Active Member

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    New twist

    That's a new twist. I'll have to research that one.
     

  3. john

    john New Member

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    A local radio guy is pushing Ga. defence force. He stated that their rules say no arms while in uniform.
     
  4. ber950

    ber950 Active Member

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    Defense

    It still makes for a interesting legal defense. Violating a rule is not violating a law.
    I would not be suprised if it worked. When you try to write laws as complicated as possible they tend to come back and bite you.
    IANAL
     
  5. geaux_tigers

    geaux_tigers Member

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    Yes. Its true that it is against their current policy to carry while in uniform (though that is just a policy ... as far as I can tell statutes do not prevent it). I believe regular military can't generally carry concealed weapons while in uniform either (with the exception of when required in performing their duties).

    What about when out of uniform? A GSDF member should be able to carry concealed while not in uniform based on how I read the Georgia code; that is what I am most intersted in. If that is the case, it would provide a nice way around the public gathering, government property, and other such nonsensical restrictions.

    Could this be a viable route to legal carry until we can get the statues fixed?
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    That's an interesting thought . . . I'll hafta think 'bout it, though.
     
  7. ber950

    ber950 Active Member

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    Glitch

    The only glitch I can find is use of the word emloyed in 16-11.130(a). That could be read to exclude unpaid volunteers.
     
  8. geaux_tigers

    geaux_tigers Member

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    Re: Glitch

    I am no legal scholar by any stretch of the imagination, even one as vivd as my own, but it looks as though the "employed in the offices listed" language if part of an "or".

    Code:
    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: 
    
    Being that the GSDF is made possible by 38-2 I would think that it might fall under the "when authorized by ... state law" bit.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    "All duties imposed by the military law or other statutes of the state or by regulations issued thereunder upon units, commissioned officers, warrant officers, and enlisted personnel of the organized militia are imposed upon the units, commissioned officers, warrant officers, and enlisted personnel, respectively, of the State Defense Force. All rights, privileges, and immunities conferred by the military law or other statutes of the state or by regulations issued thereunder upon the units, commissioned officers, warrant officers, and enlisted personnel of the Georgia National Guard or of the organized militia are conferred upon the units, commissioned officers, warrant officers, and enlisted personnel, respectively, of the State Defense Force except as otherwise prescribed in this chapter; provided, however, that the provisions of Code Sections 38-2-279 and 38-2-280 shall not be applicable to personnel of the State Defense Force. Such rights, privileges, and immunities include relief from civil or criminal liability for acts done while on duty; rights to pay, allowances, and other compensation; expenses and subsistence; arms, uniforms, and equipment; provision, maintenance, use, and
    control of armories; eligibility to appointment on the military staff of the Governor; exemption from civil process and from jury duty; right of way; right to wear the uniform and to parade with firearms; and all other rights, privileges, and immunities created by statute or custom not hereinbefore specifically enumerated."

    O.C.G.A. 38-2-54
     
  10. ber950

    ber950 Active Member

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    HUH

    What the heck does that mean?
    Now I know why I am not a lawyer.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    38-2-279 and 38-2-280 have to do with pay for state employees while deployed with the National Guard and such. That is what does not apply to the GSDF.

    The rest of it appears to apply, with the most pertinent phrase for purposes of this discussion being at the end, "and all other rights, privileges, and immunities created by statute or custom not hereinbefore specifically enumerated."

    I would think 16-11-130(a)(3) would be one of those privileges created by statute but not specifically listed . . .

    We won't know until one of you goes out, joins, the SDF, carries openly into a police station, and gets arrested. Even then, we still won't know until you fund both the trial and appeal, which will take several years.

    At first blush, though, this looks very interesting as a way around the restrictions inherent in Georgia's archane system of laws for those who want to direct traffic in the hot sun and not carry a firearm while on duty.

    Do they have a special operations force? :D
     
  12. Gunstar1

    Gunstar1 Administrator

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    Ok, after reading it yet again... this time during the day time, I agree.
    Except 38-2-280 is also covering private employers too.

    Basically it is saying whatever rights or privledges the National Guard gets is what the State Defense Force gets, except if SDF goes active and you get fired from your job because you miss work, you cannot legally demand that position back.


    38-2-280
    "(3) Makes application for reemployment within 90 days after he or she is relieved from such service, if the position was in the employ of a private employer, the employer shall restore the person to the position or to a position of like seniority, status, and pay unless the employer´s circumstances have so changed as to make it impossible or unreasonable to do so. "
     
  13. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    MilK iT For All it's Worth

    This sounds like a loophole. Let's drive a semi through it! Seriously, if these exceptions for soldiers and GSDF members are not limited to their "on duty" or "in the performance of" their duties, then they're in danger of being struck down by the Ga. Supreme Court as a violation of the Equal Protection clause. Similarly situated individuals must be treated similarly under the law, and telling one guy eating dinner with his family at Applebee's that HE cannot carry a weapon inside, while the guy sitting at the bar a few feet away, also just kicking back with a few brews and his friends, IS allowed to carry, because even though both of them are construction workers, one of them joined the Rotary club and the other joined the Ga. State Defense Force, both of which meet monthly.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: MilK iT For All it's Worth

    They're not, at least for military, and, in addition to the statute, I believe there is an AG opinion. We were examining whether the same exception works for the SDF.

    It sure looks like it.

    I think the equal protection argument is rather weak, however, given the likely standard of review to be applied.

    Even if it was not weak, you could almost say the same thing about any of the exceptions. Wouldn't that be fun to argue!
     
  15. USMC - Retired

    USMC - Retired Active Member

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    Does the verbage specifically state Acitive Duty Military? If not then would an individual with a Retired Military ID card be therefore exempt from the law?
     
  16. Gunstar1

    Gunstar1 Administrator

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    http://www.legis.state.ga.us/cgi-bin/gl ... =16-11-130

    I would say retired military does not count. (that is, could no longer be called back to duty)
     
  17. GAGunOwner

    GAGunOwner Active Member

    So if I joined the Georgia Defense Force, and I still have my GFL, where can I carry?

    That is to say where would my carry options be expanded to? Public gatherings? Other prohibited areas, etc.?
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Nowhere while on duty or in uniform or driving to and from drill. GSDF does not allow weapons!
     
  19. GAGunOwner

    GAGunOwner Active Member

    I know that a member of the GSDF can't carry while on duty, but when he is off-duty he can carry to public gatherings, etc.?

    I know I'm beating this dead horse to death but I have always been interested in the GSDF.

    Thanks for putting up with my continued questions.
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    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 . . . ;

    (2) Wardens . . . ;

    (3) Persons in the military service of the state or of the United States;


    Does that help?