Fifth Amendment Conflict with Concealed Carry Weapon Permit Law

[Oontis]

What is the name of your state (only U.S. law)? NC

If someone has a concealed carry permit and their state requires that they notify law enforcement officer of their permit and weapon once the officer approaches them, wouldn't that violate their fifth amendment right to not self-incriminate if they happened to be in a location in which they would be breaking the law if they were carrying a weapon at the time?

What is the correct procedure in that case?

 

[tranquility]

The alleged conflict only arises when you are breaking the law. You agreed to disclose in order to not be in violation illegally carrying a concealed weapon. If you don't disclose, the permit does not protect you or is a seperate crime.

I guess you should determine the reletive punishments and determine your correct course of action. However, I question the wisdom of giving such a permit to a person who contemplates problems dealing responsibly with weapons.

 

[Oontis]

The alleged conflict only arises when you are breaking the law. You agreed to disclose in order to not be in violation illegally carrying a concealed weapon. If you don't disclose, the permit does not protect you or is a seperate crime.

I guess you should determine the reletive punishments and determine your correct course of action. However, I question the wisdom of giving such a permit to a person who contemplates problems dealing responsibly with weapons.

It appears you post quite often here and are a senior member, so I would like to know, are you a practicing attorney in criminal law or is this just your educated opinion? Or both?

I don't believe your argument of "questioning the wisdom of giving such a permit to [such] a person" holds up if you really analyze it. You seem very intelligent so we will look at this intelligently. The permit that they issue is not what allows a person to carry a weapon concealed, rather it is what allows them to carry it legally and while being registered with the local Sheriff. If someone wants to carry concealed a weapon, they can just as easily do it without a permit as they can with a permit.

I also completely disagree with your premise that the issue at hand is "contemplat[ing] problems dealing responsibly with weapons" because the mere fact that this person legally obtained a permit means they strongly desire to obey the law or they would not have gone through the training, fingerprinting, application and payments associated with obtaining a CCW permit. Now most likely a person who has obtained a permit will not ever carry anywhere the state statute says they cannot legally carry. However, NC statutes do not only outlaw places where carrying would typically be considered by a reasonable person to be "irresponsible to carry in", rather many places (such as places where alcohol is served [yes even if the permit holder is not consuming], places where admission is charged [movie theaters?, baseball games?] etc...) are just named because of specific special interests and lobbyists or named because of the lack of thought processes used by the legislators at the time of drafting the bill.

After all of that, the question came down to if a person was (intentionally or UNintentionally [because it is such a natural and instinctual way of life for those wishing to protect their lives for the people who do carry]) to carry a weapon concealed into one of the previously named places, and an officer was to approach them about another issue at hand. At that point (whether you agree with this person or not) would the CCW permit holder not be Constitutionally protected from telling the officer that they are carrying a weapon on them (obviously 5th amend)? Likely the permit holder would HAVE to tell them he has a CCW permit (at that point not self-incriminating, not breaking 5th amendment), but if he wishes to enact his Constitutional right to not self-incriminate would he
(a.) stop mid sentence after saying he does have a CCW permit?
(b.) tell the officer explicitly he is NOT carrying? (probably its own crime for sure)?
(c.) combination: tell the officer only that he does have a CCW permit, and if asked by the officer if you have a weapon on you just say nothing (does officer then have the right to search him?) or then explicitly say no (now is it a crime?)?

How is state law somehow seeming to over arch the Fifth Amendment of the US Constitution here? Please advise respectfully and as completely as possible with more facts and case law rather than opinions. Thanks!

This is not meant to be mischievous or law breaking by this person, but would like to hear Police officer's opinion of this as well as the Lawyer's legal analysis.

 

[Oontis]

The alleged conflict only arises when you are breaking the law. You agreed to disclose in order to not be in violation illegally carrying a concealed weapon. If you don't disclose, the permit does not protect you or is a seperate crime.

I guess you should determine the reletive punishments and determine your correct course of action. However, I question the wisdom of giving such a permit to a person who contemplates problems dealing responsibly with weapons.

And one more note...you say "The alleged conflict only arises when you are breaking the law". Is the intent of the 5th amendment not EXACTLY for this circumstance? It is so that you do not have to admit your guilt and confess to "allegedly breaking the law, correct? Otherwise what is self-incrimination? By definition I thought it meant to admit that you committed a crime? Tell me if I am off base here

 

[tranquility]

Sorry you don't like democracy (at least a representative one). You see, in such things the elected representatives make the decision as to where it is reasonable and responsible to carry. Not the person carrying. They do this through things called laws. They don't go through the rigorous process to get a permit, they just get elected. It's not an argument, it's the law. When the premise of the question has the holder violating the laws on the holding, I'm thinking they're not very responsible. I bet part of the training and testing regarded the laws concerning firearms--making the legal presumption the holder of the permit knows them. Making intent to break the law an easy thing to prove if the holder is in a prohibited area. As to the special interests, I agree. But, all laws have special interest. Which *other* ones do you choose to ignore?

Your logic is the same some tax protester's use. How is it not a violation of the 5th amendment to file taxes under penalty of perjury if I intend to cheat on my taxes? Think for a while and come up with other examples.

Here, reread the amendment. Let's say you disclose. Will they have to use the statement against you in court? They'll just produce the weapon. If you don't disclose and the cop finds it, what penalty. Is it a separate criminal offense or do you just lose the protection of the permit? That I don't know.

As to who I am, read the bottom of the page.

 

[Oontis]

Sorry you don't like democracy (at least a representative one). You see, in such things the elected representatives make the decision as to where it is reasonable and responsible to carry. Not the person carrying. They do this through things called laws. They don't go through the rigorous process to get a permit, they just get elected. It's not an argument, it's the law. When the premise of the question has the holder violating the laws on the holding, I'm thinking they're not very responsible. I bet part of the training and testing regarded the laws concerning firearms--making the legal presumption the holder of the permit knows them. Making intent to break the law an easy thing to prove if the holder is in a prohibited area. As to the special interests, I agree. But, all laws have special interest. Which *other* ones do you choose to ignore?

Your logic is the same some tax protester's use. How is it not a violation of the 5th amendment to file taxes under penalty of perjury if I intend to cheat on my taxes? Think for a while and come up with other examples.

Here, reread the amendment. Let's say you disclose. Will they have to use the statement against you in court? They'll just produce the weapon. If you don't disclose and the cop finds it, what penalty. Is it a separate criminal offense or do you just lose the protection of the permit? That I don't know.

As to who I am, read the bottom of the page.

You say my logic is the same as .....

I am not stating my position as far as what I do or do not have to do, I am simply asking lawyers readings on how Constitutional (US) law and state law interact since I DO NOT KNOW. You went on to reference clearly other illegal activity and compare what is being discussed here with that, but that completely avoids the question.

I am not the one with the answers, I am looking for someone who does have them.

What is the point of the Fifth amendment if it does not apply to what I am speaking of or what you are speaking of? If you can fully answer that, then we can discuss what is right and wrong and comparing my discussion with other freaks out there.

 

[xylene]

Concealed carry is a permitted activity.

This means, that as condition of this permission (permit), you have abridged some of your rights in favor of an enhanced privilege.

This is little different from implied permissions for DWI checks on drivers licenses.

 

[tranquility]

5th (emphasis mine)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

You have the right to remain silent. If you give up the right to remain silent anything you say can be used against you.

Here you agreed to not remain silent. You got a permit in which you have duties and responsibilities. You want to violate the laws taught to you in obtaining the permit *and* you don't want to fullfill the duties required on the permit. If you don't disclose, because you are a holder of the permit, you will either not get the concealed weapon protection of the permit, or you will have committed a separate crime. I don't know which. They won't need to use your testimony against you in court, you will not be a witness against yourself, they'll just produce the weapon.

Read Dickerson v. United States 530 U.S. 428 (2000) for the most modern explination of the fifth. That was about Miranda warnings, but the discussion will be useful for you.

 

[Oontis]

Sorry you don't like democracy (at least a representative one). You see, in such things the elected representatives make the decision as to where it is reasonable and responsible to carry. Not the person carrying. They do this through things called laws. They don't go through the rigorous process to get a permit, they just get elected. It's not an argument, it's the law. When the premise of the question has the holder violating the laws on the holding, I'm thinking they're not very responsible. I bet part of the training and testing regarded the laws concerning firearms--making the legal presumption the holder of the permit knows them. Making intent to break the law an easy thing to prove if the holder is in a prohibited area. As to the special interests, I agree. But, all laws have special interest. Which *other* ones do you choose to ignore?

Your logic is the same some tax protester's use. How is it not a violation of the 5th amendment to file taxes under penalty of perjury if I intend to cheat on my taxes? Think for a while and come up with other examples.

Here, reread the amendment. Let's say you disclose. Will they have to use the statement against you in court? They'll just produce the weapon. If you don't disclose and the cop finds it, what penalty. Is it a separate criminal offense or do you just lose the protection of the permit? That I don't know.

As to who I am, read the bottom of the page.

I do appreciate a democracy (even more so a Constitutional Republic).

I did re-read the amendment and I am trying to understand it better which is part of the reason I posted this. So you are saying (possibly correctly) that there is only self-incrimination protection after you have been accused of something? If so, then my point is moot, but I still want more clarification.

Also, you are correct that it is not up to you, me or every other person to decide for themselves what is okay to do and what is not. However, those who carry (I have not said whether I do or not, although I think you have presumed that) often believe that protecting and preserving their life is an unalienable right and is of utmost importance to them even not dealing with the Constitution or Declaration of Independence. These people that carry concealed are carrying to defend their own as well lives as well as all other innocent bystanders that may be attacked in the direct vicinity of the CCW holder. To be quite blunt, I am actively working with the legislators to get these silly "off-limits" locations (really only off-limits to those wishing to obey the law and concerned about minor violations, and FREE REIGN to those wishing to do harm to innocents) to become "legal, on limits" locations to allow people to protect themselves.

 

[Oontis]

5th (emphasis mine)


You have the right to remain silent. If you give up the right to remain silent anything you say can be used against you.

Here you agreed to not remain silent. You got a permit in which you have duties and responsibilities. You want to violate the laws taught to you in obtaining the permit *and* you don't want to fullfill the duties required on the permit. If you don't disclose, because you are a holder of the permit, you will either not get the concealed weapon protection of the permit, or you will have committed a separate crime. I don't know which. They won't need to use your testimony against you in court, you will not be a witness against yourself, they'll just produce the weapon.

Read Dickerson v. United States 530 U.S. 428 (2000) for the most modern explination of the fifth. That was about Miranda warnings, but the discussion will be useful for you.

I believe I understand your point, and it is a very good one. One place where I may have been unclear in prior posts, but I need to point out is this.

There were two parts I was concerned with and I believe I have had one answered. They would not produce the weapon in court, because they would have never known there was a weapon (if, and only if my fifth amendment allowed me to not speak and incriminate myself, even before charged with a crime; it sounds like you all are saying it does not allow me that right).

If I am not afforded the "right to not self incriminate" prior to being charged with a crime, then certainly it would both be a mistep against the permit and a violation of a law if one is out there.

Thanks for your help...I am actually gathering this information for a buddy of mine, and I will quickly pass it along. It is ironic however that you made it so personal by saying it was my issue that I started calling it my issue and I was too lazy to go back and change the wording! Thanks again

 

[Oontis]

Concealed carry is a permitted activity.

This means, that as condition of this permission (permit), you have abridged some of your rights in favor of an enhanced privilege.

This is little different from implied permissions for DWI checks on drivers licenses.

Thanks for your input. This is based on certain case law where a constitutional right is abridged to have an enhanced privilege within a state? I understand your premise, but it doesn't seem like ANY state statute/privilege/anything can override (legally anyways) a Federal Constitutional right listed in the Constitution. Although I could see the point the other person was making that possibly you dont have 5th amendment right to "not self-incriminate" until or unless you have been charged with a crime.

 

[xylene]

Thanks for your input. This is based on certain case law where a constitutional right is abridged to have an enhanced privilege within a state? I understand your premise, but it doesn't seem like ANY state statute/privilege/anything can override (legally anyways) a Federal Constitutional right listed in the Constitution. Although I could see the point the other person was making that possibly you dont have 5th amendment right to "not self-incriminate" until or unless you have been charged with a crime.

No what I am saying is the federalist reverse of your assertion.

You have agreed with the STATE to partially abridge your 5th amendment right, in accordance with your gun permit.

Your permit is not a right, or obligation, therefore ones choice in preferring to elect to have a conceal weapons permit is voluntary abridgment of a federal right.

It is the voluntary part that makes it no unconstitutional infringement; an infringement is by definition involuntary.

 

[Oontis]

No what I am saying is the federalist reverse of your assertion.

You have agreed with the STATE to partially abridge your 5th amendment right, in accordance with your gun permit.

Your permit is not a right, or obligation, therefore ones choice in preferring to elect to have a conceal weapons permit is voluntary abridgment of a federal right.

It is the voluntary part that makes it no unconstitutional infringement; an infringement is by definition involuntary.

Got it. Great input you all, thanks for the help! Although the other person thought that me or my friend wanted to be irresponsible, I was actively seeking opinions on the legal aspect of it. Someone who was irresponsible would do the things I have asked about and never seek opinions, suggestions or other counsel about these matters. I want to obey the law and I want to understand how State and Federal laws work, and abide by the one that is supreme. It was my belief prior to this thread being posted that the 5th amendment (federal law) trumped state law. I will try to pass this onto my friend to the best of my ability. I have a follow up (non-concealed carry question) coming right after this.