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Concealed carry? Open carry? The legal ins and outs of SB 1254…

Near the end of this morning’s portion of the guns-on-campus hearing, Rep. Gayle Batt, R-Wilder, asked Deputy Attorney General Brian Kane to respond to a question, and asked him if SB 1254 would allow open carrying of firearms on Idaho public college campuses. Kane said his reading of the legislation is that colleges could still restrict that. “My reading of this legislation is that the universities have the authority to enact firearms regulation to the broadest extent, except for within those two categories,” he said. “The only exception” would be “the ones specifically enumerated within this legislation,” which are for those with enhanced concealed weapon permits and retired law enforcement officers.

That interpretation differs from that of some high-level lawyers, including interim University of Idaho President Don Burnett, former dean of the UI law school and a former Court of Appeals judge, and state Board of Education member Rod Lewis, general counsel for Micron Technology.

Queried afterward about his conclusion, Kane acknowledged that the wording of the bill could be challenged in court. “We analyze it for what’s the most likely interpretation” a court would take, he said.

The bill says public colleges and universities can regulate guns on campus except when it comes to two areas: Retired law-enforcement officers, who are entitled by Idaho law to carry concealed weapons; and holders of the state’s new enhanced concealed weapons permit. It says, “Notwithstanding any other provision of state law, this authority shall not extend to regulating or prohibiting the otherwise lawful possession, carrying or transporting of firearms or ammunition by persons licensed under section 18-3302H or 18-3302K, Idaho Code.” Those are those two sections.

Then, it says, “However, a person issued a license under the provisions of section 18-3302H or 18-3302K, Idaho Code, shall not carry a concealed weapon: (i) Within a student dormitory or residence hall; or (ii) Within any building of a public entertainment facility. …” That sentence doesn’t say those licensed people can’t carry openly, and Burnett noted that the concealed weapons permit laws entitle people to conceal weapons, but don't require them to conceal them.

Kane said lawyers looking for problems in the law certainly could read it that way, but he said a court would likely look at what the Legislature intended overall with the measure, and conclude that it wanted to restrict guns from those venues, not open them up. If someone arrived at Bronco Stadium for a football game openly carrying a weapon, Kane said, “If I were the attorney for those venues, my recommendation would be don’t let them in.” Then, the armed person could press his case in court, and the judge would make the final call.

Asked if it wouldn’t be better to amend the bill, perhaps to eliminate the word “concealed” in the section about dorms or arenas, or add it to the preceding section, Kane said he thought that wording was copied from other parts of the law. The question about whether open carrying of guns is actually allowed anywhere in Idaho, without exception, under the provisions of the Idaho Constitution is “an open question in Idaho,” he said, and one that hasn't generated much case law. “That’s a broad provision.”


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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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