Saturday, February 16, 2008

City of Newark trying to ban Open Carry?

link to council meeting

Yet they also acknowledge that it's legal. It looks to me like they want to change the statute because it's redundant (CCDW without a license is already illegal per State law) but they're including in the change a ban on open carry.

The opening few paragraphs make it apparent I think that they realize they can't actually pass such an ordinance due to conflict with state law. Good, at least they seem to understand this unlike some localities in other states. The part I've put in bold below confuses me, since there is no license required for the "open carrying and display of weapons" in Delaware. (other than Dover)

"We have identified a potential impediment in the above ordinance which is on your agenda for second reading, hearing and adoption at your November 27, 2007 meeting.

The legal issue pertains to the provision in the ordinance which would prohibit the open carrying and display of deadly weapons by persons not licensed to do so nor required to do so by virtue of their employment. Since the ordinance has moved to second reading, we would strongly recommend that it be defeated or, alternatively not receive a "second"a t the table on Monday night. We will continue our legal review and prepare a new ordinance for first and second reading if we conclude that current provisions in state law preclude our adoption of the bill as drafted."

This is how the Newark weapons ordinance currently reads. It's somewhat ambiguous

"No person shall, within the city, carry, wear under his clothes, conceal about his person, or display in a threatening manner any dangerous or deadly weapons including but not by way of limitation any pistol, revolver, dagger, razor, sling shot, knuckles of lead or brass or other metal, any bowie knife or any knife resembling a bowie knife, or any knife with a switch blade or device whereby the blade or blades can be opened by a flick of a button,pressure on the handle or other mechanical contrivance."

I read that to mean that open carry is LEGAL in the city of Newark because OC'ing is not "displaying in a threatening manner."

Anyway, they want to substitute the following

(a) No person shall, within the city, carry, wear, or otherwise openly display any dangerous or deadly weapon, including but not by way of limitation, any pistol, revolver, or other firearm, unless such person is acting within the scope of his employment and such employment requires that the person carry, wear, or otherwise display such a dangerous or deadly weapon.

(b) In all cases in which a person is found within the city to be carrying a concealed dangerous or deadly weapon, such act shall be governed by relevant provisions under state law, including, but not limited to, statutes pertaining to carrying concealed weapons and statutes permitting such activity pursuant only to a valid state permit."

Those 4 words would ban Open Carry in Newark, however Delaware has state Preemption as of July 1985, so this new city ordinance would be illegal, as it conflicts with preemption and state law.

OC in Newark is very very confusing, since although it appears to be legal under local & State law, we have the University of Delaware intertwined with the City and I can't figure out whether it's legal to Open Carry within the "University Perimeter" or not. There's plenty of places & sidewalks that aren't University property but are within the campus perimeter.

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