Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
A U.S. District judge in Georgia has rejected a bid by GeorgiaCarry to order Governor Brian Kemp to suspend the state law that requires a license to carry a handgun.
Judge Steve Jones ruled that Fulton County resident and plaintiff Sara Carter’s Second Amendment rights have not been violated, even though she is not currently able to obtain a concealed carry license from a probate judge in the county, which has temporarily suspended taking applications after the state’s Council of Probate judges declared that issuing Georgia Weapons Licenses during the declared state of emergency was not an essential function of the court.
Gun control activists may cheer the fact that the judge rejected Carter’s argument, but I doubt they’ll find much to enjoy in Judge Jones’ opinion itself. Jones lays out a number of arguments as to why Sara Carter’s Second Amendment rights remain intact at the moment, starting with the fact that Carter can carry and transport a firearm in her home, car, place of business without a license. In a pinch, Jones notes that the open carry of rifles and shotguns remains an option.
Jones also argues that while Carter claims she fears arrest or prosecution if she carries without a license, she really doesn’t have much to worry about.
From Law.com:
Carter claimed she could face a misdemeanor charge for carrying a handgun in public without a license, but the judge said law enforcement is barred from detaining anyone carrying a handgun in public for the sole purpose of determining whether they have a carry license.
Jones said the state law also provides “a justification defense” for people charged with violating the law if they reasonably believe breaking the law is necessary for their personal defense.
Renewal deadlines for gun licenses set to expire during the state emergency also have been extended until the emergency expires. As a result, Jones said Carter’s fear of arrest or prosecution “is not reasonable.”
It sure sounds like Judge Jones basically gave Sara Carter and others a roadmap on how to carry her handgun, even without a concealed carry license, and avoid trouble with the law. Technically you’re breaking the law, but police can’t stop you just to see if you have a carry license, and if you do have to use that handgun in self-defense, you can argue that clearly you were justified in carrying because your firearm was necessary for your personal defense. Act as the aggressor, however, or commit another crime while carrying, then all bets are off and you’ll most likely be facing charges.
In that sense, it’s not actually a bad decision by the judge. It was always going to be a stretch to convince a judge to impose constitutional carry and overturn the state’s carry laws, and Judge Jones noted that he could find no evidence of any judge ever ordering a governor to undo state law during a state of emergency.
It’s worth noting that during the first hearing in the case, the state’s Attorney General argued that Sara Carter had no “reasonable fear of prosecution,” even if she were to carry without a license. I’d be curious to know if the Fulton County sheriff would agree with that assessment, but again, it sounds like the state’s informal advice is “if you want to carry, don’t draw attention to yourself and don’t draw your gun unless you’re forced to use it in self-defense.”
Now, I’m pretty sure that’s not how either Judge Jones nor Attorney General Christopher Carr would put it, but it seems like a reasonable takeaway to me.
Second Amendment supporters still have another case filed in federal court that may allow a judge to elaborate on the Second Amendment rights at stake. The Second Amendment Foundation and Firearms Policy Council have filed litigation on behalf of a Cherokee County woman who also can’t apply for her carry license at the moment. That suit also asks for a suspension of the Georgia carry statute, but if the judge isn’t willing to go that far, seeks the resumption of applications with proper social distancing in place. Many jurisdictions around the country are now operating under appointment only and with limited hours, as opposed to suspending applications entirely. It’s possible that a judge could order probate judges around the state to resume accepting applications with certain safety measures in place, but even if that doesn’t happen, legal Georgia gun owners have in essence been given the yellow light to proceed with caution on carrying without a license during the state of emergency.