"mere possession of a firearm in public is not unlawful"

Bruce Jenkins, the Senior District Judge for the Central Division of Utah, has this interesting discussion:

No one at the scene had observed Lund carrying, brandishing or threatening anyone with a firearm or other weapon in any fashion, and no weapon was found.

fn. By itself, mere possession of a firearm in public is not unlawful and may well represent the exercise of a fundamental constitutional right guaranteed by the Second Amendment to the United States Constitution and Article I, § 6 of the Utah Constitution (recognizing the “individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes,” subject to the power of the Legislature to define the “lawful use of arms.”). See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”); see also Utah Code Ann. §§ 76-10-500 to 530 (2003 & Supp. 2008) (Utah Firearms Act). In Utah, the carrying of a concealed weapon on one’s person in public is a matter of State licensing and regulation, and is routinely permitted pursuant to the applicable State statute. See Utah Code Ann. §§ 53-5-701 to 711 (Supp. 2008). The legislature has explicitly denied local governmental entities such as Salt Lake City the power to limit or restrict possession of a firearm on public property: “Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.”

As articulated by the Utah Legislature, public policy in this State may fairly be read to condone and even encourage gun ownership and the lawful possession and carrying of firearms in public places. Salt Lake City’s asserted governmental interest in its police officers’ response to a report of a “man with a gun” in a public park cannot be weighed in isolation from this oft-emphasized public policy. In that context, there may well be more individual constitutional rights at stake than the Fourth Amendment freedom from unreasonable searches and seizures.



Blogger The Right Guy said...

Sounds like the new "Live Free or Die" State.

12/11/2008 8:27 AM  

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