Monday, July 1, 2013

About That Open Carry Law Fiasco In Mississippi

The State of Mississippi passed a law in March clarifying the law regarding open carry in that state. It was to go in effect today. Late Friday afternoon, the District Attorney for Hinds County (Jackson) and an attorney for the Southern Poverty Law Center found a judge who would grant a temporary injunction against the law. As David Codrea noted on Saturday, Judge Winston Kidd bypassed the normal checks and balances.
In an unabashed feat of judicial and linguistic contortion, Kidd ruled that specific language is “vague,” and justified his injunction on the grounds that allowing the bill to take effect would cause “irreparable harm.” That’s consistent with what opponents of the bill, who lost their fight to kill it in the legislature, are promulgating.
Jeff Pittman, a gun rights advocate in Mississippi, had this to say in his 2A Newsletter which I've reprinted with Jeff's permission.
House Bill 2 rationally defines concealed weapons as those not readily visible, and unconcealed weapons as those readily visible. The effect of the law is that open carry will be generally legal without a permit, as the Mississippi constitution provides. The only reason folks haven't been able to open carry in the past is the erroneous definition of "concealed" in current law and case law, which refers to "concealed in whole or in part." The constitution says nothing about concealed "in part."

In what can only be described as a sneak attack, late Friday afternoon just before the courts closed for the last time before the law took effect, a lawsuit was filed seeking an emergency injunction against the law's taking effect on Monday morning (today).

The lawsuit was brought by Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis and state Sen. John Horhn (D-Jackson) among others. Those ELECTED officials will be remembered in the future.

The plaintiffs apparently went judge shopping and found a winner in Hinds County Circuit Judge Winston Kidd (another ELECTED official), who agreed the law was ambiguous or vague and a restraining order was "necessary to prevent immediate, irreparable harm." Kidd issued a temporary injunction in the emergency hearing sometime after 4:30 Friday afternoon.

What the alleged ambiguity or harm is was not clear. What the emergency was to block a law that was passed months ago was also unclear.

Not being an attorney, I was unaware that a county judge could block a state law. What if another county judge blocks the original concealed carry prohibition law?

The temporary restraining order reportedly will last until July 8, when Kidd has scheduled a hearing on the merits of an injunction to block the law.

Look for this to move to a competent court.

Both Horhn and another plaintiff said they don't believe the constitution provides for open carry. But Article 3, Section 12 of the MS Constitution reads:

"Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons."

Jody Owens, an attorney for the Southern Poverty Law Center (a well-known liberal hate group), represented DA Smith, and spun a bizarre story for the press, saying "The plaintiffs are trying to stop mayhem. We're looking at a wild, wild west scenario."

Arguing for the state, assistant attorney general Harold Pizzetta said that open carry is already protected by the state's constitution, because it isn't mentioned in a section that gives the Legislature the right to regulate concealed carry (see above).

Once the new law takes effect, there will still be a lot of problems due to erroneous efforts to circumvent it. Agencies and local governments statewide are falling all over themselves to try to ban legal guns from all government buildings by passing policies and posting signs, apparently little of which is supported by statute. Keep in mind that we also have a preemption law prohibiting such activities by cities and counties. Mississippi Code section 45-9-51 reads "Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components."
Mississippi Attorney General Jim Hood filed a combined petition to vacate a restraining order and emergency petition for interlocutory appeal with the Supreme Court of Mississippi today. Jeff Pittman notes in a later email that Hood has never been a "particularly strong proponent of gun rights, and this case is likely more of a turf war than a battle of philosophies." I think Jeff may be quite correct on this last point if this part of the petition is any indication.

From the Gun Rights Examiner:
“[T]he Motion incorrectly declares that District Attorney [Robert Schuler] Smith is bringing this matter in his capacity as ‘the chief legal officer of the State of Mississippi,” the petition documents in an ironic comment about lack of standing that illustrates a presumption of non-existent authority and questionable legal competence on the part of both the DA and the Southern Poverty Law Center attorney backing the power grab.

“A district attorney is prohibited from bringing any suit the subject matter or impact of which would be statewide because only the Attorney General may bring such a suit of statewide importance,” the petition reminds the Court.
The Supreme Court has given Hinds County DA Robert Smith and the rest of the respondents until 5pm this afternoon to file their response.

I would not be surprised to the injunction vacated sometime tomorrow on standing grounds alone. I'll post more as it becomes available.

UPDATE: Checking the docket of this case on the Mississippi Supreme Court's website, it appears that the respondents/plaintiffs did submit their response by the end of the business day on Monday. Unfortunately, I'm not able to download their response to read it.

UPDATE II: Thanks to Jeff Pittman (see comments) we have the response by the gun prohibitionists. It can be found here.


  1. Unfrikkinbelievable... But I'm really not surprised!

  2. Here's the plaintiffs' response:

    Jeff Pittman