15 September 2005

Differences in the Law

Texas has a law which allows you to travel with a firearm as long as it is not in plain view. In Virginia, if you do not travel with the firearm in plain view you must have a concealed carry permit. Without such a permit you are violating the concealed weapons statute. In cases I have handled this has included pistols in the glove compartment, in a closed box under the seat (unloaded), and in bag in a mesh holder at the back of an extended cab truck. You are basically required to have the firearm sitting on the passenger seat, in plain sight, at all times. Personally, I think the only place you can have a firearm out of sight in your car and not get convicted is if it is in the trunk (and even then the back seat had best not fold down so that the trunk actually connects to the cab).

The way I've usually seen this handled is that the defendant has his charge dropped if he agrees to give up his firearm.


Matt Rustler said...

I have a concealed carry permit, and there's still a niggling little paranoid fear in the back of my mind that, because I carry my pistol in my briefcase (rather than on my person), an overzealous prosecutor could try to give me trouble for it. I realize that's very unlikely, as it wouldn't make much sense to say that I can lawfully carry a handgun on my belt or under my arm, but can't lawfully carry one in my briefcase. Nevertheless, the statute could be clearer on this point.

Unlike subsections (B) and (C), which say, "This section shall not apply," subsection (D), which provides for concealed handgun permits, simply says that "[a]ny person . . . may apply in writing to the clerk of the circuit court . . . for a five-year permit to carry a concealed handgun." Notice that the statute generally prohibits carrying "on or about" one's person, while subsection (D) is somewhat vague about the scope of the right. It doesn't say that "this section shall not apply." In fact, it doesn't explicitly tell you what right(s) the permit conveys; that's merely implied. One could argue that the scope of the right conveyed by the statute isn't as broad as the scope of the prohibition contained in the general provision. Paranoid, I know.

I also worry about my Benchmade, which I usually carry in my back pocket and which, at least when my coat is on, almost certainly is "concealed" within the meaning of the statute. It's not a handgun, so it can't be covered by my concealed handgun permit. So the question really boils down to whether it's a "dirk, bowie knife, switchblade knife, ballistic knife, machete, razor . . . or (v) any weapon of like kind . . . " The cases on what constitutes a "weapon of like kind" seem to be a crapshoot involving a lot of meaningless metaphysical hair-splitting. Furthermore, if I flick my wrist really hard, or if I merely flick my wrist while holding back the locking button, or if I hold the knife in the proper position while merely holding back the locking button, the blade will open "by inertia." So it might technically be considered a "switchblade knife" under the statute. See Richards v. Commonwealth, 18 Va. App. 242, 245, 246 n.2, 443 S.E.2d 177, 179, 179 n.2 (1994) (defining "switchblade knife" as "a knife with a blade that opens automatically by operation of inertia, gravity, or both upon the release of a
spring mechanism").

Ken Lammers said...

It's been a while since I've had to deal with a concealed knife charge but I seem to remember the case law requiring a certain length (I cannot remember if it is 4" or 6").

When I first started to practice I carried a leatherman with me 24 hours a day. I had gotten into the habit of carrying one while in the Army and find they are amazingly useful. However, after about the 200th time I got hassled for trying to go into a courthouse I stopped carrying one.