The Reciprocal Carry Conundrum: Part V
Determination of the Controlling Laws of the Reciprocal State: How to Conduct and Check Your Legal Research!
A big part of legal education is “finding” the law. It seems fairly straight forward as it relates to firearms law and to some extent it is with routine questions. Laws will be local, state and/or federal. These laws are found in administrative rules, statutes and case law.
Throughout this introductory series for, these sources of law have been identified and through gunlawsbystate.com, or Gun Laws by State, the book, the locations of official and unofficial repositories of the law have been provided. So good to go? Not so fast!
Have you ever sat down with a lawyer and asked what seemed like a simple question and the answer was not clear, you didn’t get an answer, or the answer took awhile for the attorney to give to you? If so, this illustrates the daily worklife–and frustrations–lawyers and those who work with the legal system face.
Most answers are not readily available. The reason? Most law is stated in mandatory or prohibited terms. “It is illegal to operate a motor vehicle with a blood alcohol level above .08 in the unit of measure.” Or prohibit terms: “A person who strikes another person in a rude, angry on insolent manner commits a Class A misdemeanor”.
Contrariwise, the law is seldom written in the affirmative. This means in states where the term of a license to carry does not state whether the carry must be concealed, it may be found in other law. If after looking through penal laws, it may be the case that concealed carry is not addressed and a criminal act or omission.
However, it may be the situation that a court has applied or interpreted the given penal statutes to mandate the carry be concealed in nature. It is only with addressing primary criminal statutes and caselaw, that a sound answer to any given legal query may be found.
If in no place in the penal law does it required concealed carry, it may not be a crime to do so. In other words, it is often the lack of a criminal law on point that indicates there is no criminal act by do X or Y in the context of reciprocal carry (this does not address the fact one must make sure the statues are current and/or the caselaw not overturned).
To do this, lawyer typically approach any legal question by researching through databases and paper books all different angles to the same question. In doing so, typically the same prohibition of criminal law comes up or no prohibition is found. It is when researching questions through multiple official and sometimes un-official sources or determining how other states have addressed the situation that a consensus arises. In other words, when the same answer keeps appearing, this is probably a reflection of stability in the law.
Where there is conflict and/or other states have been presented with the “what if” and ruled in a way that would make query criminal, that instability in the law is found. This is not intended in any way to be a substitute for consult of a skilled attorney. However, the more you understand about the law, the better you will be able to follow it.
This blog post on general concepts of legal research is written by attorney Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, Indiana. This blog post is again for educational purposes only and not legal advice and should not be relied upon. In addition, the blog post is not a solicitation for legal services.