Open Carry, Historically

Discussion in 'Off-topic' started by Malum Prohibitum, Dec 28, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Over at Glock Talk, a poster has made the statement that open carry used to be allowed without a license before Georgia became "shall issue." http://glocktalk.com/showthread.php?s=& ... ost7410835

    I thought I remembered seeing references to cases from the early twentieth century that seemed to include open and concealed carry requiring a burdensome license. Anybody know?
     
  2. ber950

    ber950 Active Member

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    GA had a permit requirement a long time before the first shall issue law (around 1973). Before that a permit was required for open carry there was no (PERMIT) for concealed carry. However there was a neat little thing called a Special Deputy Card that allowed for concealed carry in the county it was issued.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I thought first shall issue law was in 1989? GS1?

    The first permitting system in Georgia was in the 1800s!

    I also thought there was a license for concealed carry earlier in the 20th Century . . .

    :-k
     
  4. Gunstar1

    Gunstar1 Administrator

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    I am not sure, I know the Shall issue part was supposedly added in 89 or 91. I am thinking the current incarnation of open and concealed carry needing a permit came from the May-issue version from the 70's which, in addition to adding May issue licenses, it also created 16-11-128 (which made the open carry of pistols illegal without a permit).

    That would leave concealed carry banned or restricted well before then (70's).

    Anybody find out when 128 was made law?
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    1910.

    It was first cited in Strickland v. State, 137 Ga. 1 (1911).

    The language of the act was different.

    From the dissent in Strickland:

    Section 1 of the act, concerning the constitutionality of which the question is propounded, declares: “That from and after the passage of this act it shall be unlawful for any person to have or carry about his person, in any county in the state of Georgia, any pistol or revolver without first taking out a license from the ordinary of the respective counties in which the party resides, before such person shall be at liberty to carry around with him on his person, or to have in his manual possession outside of his own home or place of business; provided that nothing in this act shall be construed to alter, affect or amend any laws now in force in this state relative to the carrying of concealed weapons on or about one's person; and provided further, that this shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this state or United States who are now allowed, by law, to carry revolvers; nor to any of the militia of said state while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges.†Section 2 declares: “That the ordinary of the respective counties of this state, in which the applicant resides, may grant such license, either in term time or during vacation, upon the application of party or person desiring to apply for such license; provided applicant shall be at least eighteen years old or over, and shall give a bond payable to the Governor of the state in the sum of one hundred dollars, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same.†Section 3 provides that: “The person making such application, and to whom such license is granted, shall pay to the ordinary for granting said license the sum of fifty cents, which license shall cover a period of three years from date of granting same.†Section 4 makes the violation of the act punishable as for a misdemeanor.

    Here is what else the dissent had to say about it.

    An existing statute prohibits the carrying of a pistol concealed, and in a prosecution for the violation of this statute it has been held that if a pistol be carried concealed but for a moment it is a violation of the law. Brinson v. State, 75 Ga. 882. But the provisions of the act above quoted extend further than to instances such as mentioned by the majority. Under them no person, male or female, under the age of 18 years, other than such as might come within certain classes specifically excepted, could lawfully carry around on his person, or have in his manual possession, any kind of pistol or revolver, for any purpose whatever, in any conceivable manner, elsewhere than in his own home or place of business. Nor could any person over the age of 18 years do so without first having obtained a license so to do from the ordinary of the county, and having given bond and paid the prescribed fee. Relatively to a person under the age of 18 years, it matters not what the conditions or causes might be that would render it necessary for him or her, as the case might be, to go to or from his home or place of business, or what dangers might be encountered on the way, or how great the necessity for a pistol or revolver for the protection of self or property, he would violate the statute if on the way he carried in his hand, or otherwise about his person, a pistol or revolver. The same would apply to all persons over the age of 18 years, not falling within any of the excepted classes, unless they had complied with the prescribed conditions relative to obtaining a license, giving bond, and paying the fee. A nonresident, without a place of business, could not obtain a license. If there were a vacancy in the office of the ordinary, no person could obtain a license. However distasteful or inconvenient it might be to a law-abiding citizen to take out a license and be recorded as the carrier of a pistol, or, in case of remote distance from the ordinary, or inaccessibility to his office, however great the necessity of carrying a pistol or revolver for self-protection, before a license could be obtained, it would be a violation of this statute to carry any kind of a pistol or revolver in any manner whatever, and punishable as for a misdemeanor.
     
  6. Gunstar1

    Gunstar1 Administrator

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    in similar wording as it is now?

    I do remember reading somewhere that open carry was banned when the current incarnation of the statewide permit system went into effect.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, I think the permitting started in 1910. The ban on concealed carry started in 1837.

    After 1910, O.C.G.A. 16-11-128 was modified in 1968, 1976, and 1996.

    After 1837, the concealed carry law was modified . . .

    ah, like this.

    Laws 1837, Cobb's 1851 Digest, pp. 848, 849; Laws 1851-52, p. 269, §§ 1- 3; Laws 1865-66, p. 233, §§ 1, 2; Laws 1882-83, p. 48, § 1; Laws 1898, p. 60, § 1; Laws 1968, p. 1249, § 1; Laws 1976, p. 1430, § 1; Laws 1982, p. 3, § 16; Laws 1992, p. 6, § 16; Laws 1996, p. 108, § 1; Laws 1998, p. 1153, § 1; Laws 2000, p. 1630, § 3.

    Formerly Code 1863, § 4413; Code 1868, § 4454; Code 1873, § 4527; Code 1882, § 4527; Penal Code 1895, § 341; Penal Code 1910, § 347; Code 1933, § 26-5101; Code 1933, § 26-2901.

    HISTORICAL AND STATUTORY NOTES

    The 2000 amendment in subsec. (b)(1) substituted as a minimum sentence two years for one year.
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Exceprt from Georgia State University Law Review
    November 1996

    Rachelle Renfro Green

    Georgia's statute allowing concealed weapons had been in place for about twenty years. [FN8] Most law enforcement authorities had interpreted the law to allow permit-carrying citizens to carry weapons under their clothing. [FN9] However, opponents had argued against carrying weapons concealed by clothing, claiming that the language of the law prevented such methods. [FN10] SB 678 was introduced to clarify and give effect to the intent of the existing law. [FN11]

    SB 678
    Evolution of the Act
    SB 678 passed the Senate Committee on Public Safety and the full Senate with no amendments. [FN12] Two amendments, one concerning the carrying of concealed weapons by licensees from states that have reciprocity with Georgia, and one concerning the lifting of restrictions regarding the transport of concealed weapons in motor vehicles, were added on the House floor. [FN13] The bill was also amended in the House Public Safety Committee. [FN14] During the final days of the Legislative session, SB 678 went to conference committee where Senate conferees proposed combining it with SB 624. [FN15] This proposal was not agreed upon, and SB 678 emerged with slight changes. [FN16]
    Carrying a Concealed Weapon
    The Act amends Code section 16-11-126 in two ways. First, language was added to provide that if a properly licensed person carries a firearm in a shoulder holster, waist belt holster, or any other holster, hipgrip, or similar device, that weapon may be concealed by the person's clothing. [FN17] Some law enforcement authorities have expressed concern that the Act will endanger their lives. [FN18] Supporters of the Act respond that it has not actually changed anything, but merely clarifies what the law has been for some time. [FN19]
    Second, the Act allows any eligible, unlicensed person to transport a loaded firearm in any private passenger motor vehicle, as long as it is fully in view or in the vehicle's glove compartment. [FN20] A person who is licensed may now carry a handgun in any location in a motor vehicle. [FN21]
    Reciprocity
    The Act provides that beginning October 1, 1996, a person licensed to carry a handgun in another state is authorized to carry a handgun in Georgia, as long as that person complies with Georgia laws in the carrying of the handgun and is not a resident of Georgia. [FN22] This provision was made in response to inquiries from citizens of other states regarding the guidelines for carrying a concealed weapon in a car. [FN23]
    Originally, the Act did not require compliance with Georgia law, but allowed the carrying of a handgun under the terms of the licensing state. [FN24] The provision was added in conference committee. [FN25]
    Military Personnel
    Prior to the Act, the judge of the probate court in each county was authorized to issue a license to those domiciled in that county. [FN26] The Act now provides for the licensing of a person who is on active duty with the United States armed forces and resides in the county of application, but who is not a domiciliary of Georgia. [FN27] This provision was added to the original bill by the House Committee on Public Safety to address those who "fell through the cracks" under the previous statutory language and were not eligible for a license. [FN28]
    Background Checks
    Prior to the Act, if a background check on a person purchasing a firearm could not be completed due to a system failure or other emergency by the close of business on the day the request was made, the firearm dealer was authorized to complete the transaction immediately. [FN29] The Act extends the response time allowed, by providing that the Georgia Bureau of Investigation (GBI) has until noon on the next business day to inform the dealer whether the buyer is prohibited from purchasing a firearm. [FN30] If the dealer is not notified by the morning of the next business day after the request is made, then the transaction may be completed. [FN31] This provision was requested by the GBI and added in conference committee. [FN32]

    [FN1]. Bill Straub, Dueling Data: Do Concealed-Gun Laws Help?, Cincinnati Post, Feb. 8, 1996, at 1A.

    [FN2]. Id.

    [FN3]. Id.

    [FN4]. Id.

    [FN5]. Id.

    [FN6]. Cynthia Tucker, Concealed Weapons: Putting Police at Risk to Please Lobbyists, Atlanta J. & Const., Mar. 20, 1996, at A16.

    [FN7]. Telephone Interview with Sen. Sonny Perdue, Senate District No. 18 (June 4, 1996) (hereinafter Perdue Interview).

    [FN8]. 1976 Ga. Laws 1430, S 1, at 1431-32 (formerly found at O.C.G.A. S 16-11-126 (1992)); Perdue Interview, supra note 7.

    [FN9]. Perdue Interview, supra note 7.

    [FN10]. Id.

    [FN11]. Id.; SB 678, as introduced, 1996 Ga. Gen. Assem.; Telephone Interview with Rep. Curtis Jenkins, House District No. 110 (June 4, 1996) (hereinafter Jenkins Interview). Representative Jenkins, who was influential in the passage of the Act, pointed out that the existing law allowed a person to carry a gun in a handbag or in a hipgrip (which is worn inside trousers), but prevented a person from carrying a gun in a holster underneath a jacket. Id. He stated that the existing law was ambiguous in this sense and that this Act was passed to clarify such ambiguities. Id.

    [FN12]. Final Composite Status Sheet, Mar. 18, 1996.

    [FN13]. Id.; Letter from Rep. Curtis Jenkins, House District No. 110, to Governor Zell Miller (Mar. 19, 1996) (hereinafter Jenkins Letter) (available in Georgia State University College of Law Library).

    [FN14]. Final Composite Status Sheet, Mar. 18, 1996.

    [FN15]. Id.; Jenkins Letter, supra note 14. SB 624 added certain retired law enforcement personnel to those individuals exempted from concealed firearm restrictions. Jenkins Letter, supra note 14. Representative Jenkins opposed this proposal because he believed SB 624 was problematic. Id. SB 624 was later vetoed by Governor Miller. Jenkins Interview, supra note 12.

    [FN16]. Jenkins Letter, supra note 14.

    [FN17]. Compare 1976 Ga. Laws 1430, S 1, at 1431 (formerly found at O.C.G.A. S 16- 11-126(c) (1992)) with O.C.G.A. S 16-11-126(c) (1996).

    [FN18]. Perdue Interview, supra note 7.

    [FN19]. Id.

    [FN20]. O.C.G.A. S 16-11-126(d) (1996).

    [FN21]. Compare 1976 Ga. Laws 1430, S 1, at 1431-32 (formerly found at O.C.G.A. S 16-11-126(d) (1992)) with O.C.G.A. S 16-11-126(d) (1996).

    [FN22]. O.C.G.A. SS 16-11-126(e), -128(c) (1996).

    [FN23]. Perdue Interview, supra note 7.

    [FN24]. SB 678, as introduced, 1996 Ga. Gen. Assem.

    [FN25]. See SB 678 (CCS), 1996 Ga. Gen. Assem.

    [FN26]. 1986 Ga. Laws 481, S 1, at 481-82 (formerly found at O.C.G.A. S 16-11-129 (1992)).

    [FN27]. O.C.G.A. S 16-11-129 (1996).

    [FN28]. See SB 678 (HCS), 1996 Ga. Gen. Assem.; Perdue Interview, supra note 7.

    [FN29]. 1995 Ga. Laws 139, S 2, at 143-44 (formerly found at O.C.G.A. S 16-11-174(a) (Supp. 1995)).

    [FN30]. O.C.G.A. S 16-11-174(a) (1996).

    [FN31]. Id.

    [FN32]. See SB 678 (CCS), 1996 Ga. Gen. Assem.; Perdue Interview, supra note 7.
     
  9. Gunstar1

    Gunstar1 Administrator

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    I knew it was not the 1996 change that killed open carry of handguns to non-licensees, I still think that it was 68 or 76 was when it was ended.
     
  10. foshizzle

    foshizzle New Member

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    Where the heck do you guys find all this stuff???

    It's pretty cool to read how things changed and were interpreted through time. Even the language and tone differs somewhat.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    No, read what the case says about the act of 1910 again.

    That from and after the passage of this act it shall be unlawful for any person to have or carry about his person, in any county in the state of Georgia, any pistol or revolver without first taking out a license from the ordinary of the respective counties in which the party resides, before such person shall be at liberty to carry around with him on his person, or to have in his manual possession outside of his own home or place of business; provided that nothing in this act shall be construed to alter, affect or amend any laws now in force in this state relative to the carrying of concealed weapons on or about one's person . . .

    Unless that was changed thereafter . . . it bans open carry without a license.
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    That the ordinary of the respective counties of this state, in which the applicant resides, may grant such license, either in term time or during vacation, upon the application of party or person desiring to apply for such license; provided applicant shall be at least eighteen years old or over, and shall give a bond payable to the Governor of the state in the sum of one hundred dollars, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same.


    $100 bond by a surety approved only by the probate judge? :?

    In 1910 the monthly salaries of teachers averaged $37.77. I could not find an annual income for Georgia's black sharecroppers.

    This link http://links.jstor.org/sici?sici=0022-2984(194924)18%3A1%3C40%3ATSATOD%3E2.0.CO%3B2-L
    indicates that black schoolteachers averaged less than $100 a year.
     
  13. Gunstar1

    Gunstar1 Administrator

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    well I guess that was it then.

    Then again with that $100 bond thing along with what was probably extreamly lax inforcement based on a certain profile (white), many probably believed it was still legal when it technically was not.