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An interesting article

This is a discussion on An interesting article within the CCW Conceal Carry forums, part of the Gun Forums category; Here's an interesting article I came across in Corpus Juris Secundum while doing some research for a client of mine who is charged with Carryign ...

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  1. #1
    Gunatic Loyalist (Bow down) mwink822's Avatar
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    An interesting article

    Here's an interesting article I came across in Corpus Juris Secundum while doing some research for a client of mine who is charged with Carryign a Concealed Deadly Weapon in violation of 11 Del. C. § 1442:

    West's Key Number Digest, Weapons 12
    Under statutes prohibiting the carrying of certain weapons without obtaining a license or permit, the authority conferred by the license is a matter of defense.

    Under some statutes, the carrying or possession of certain weapons is prohibited and unlawful only where a license or permit has not been obtained therefor.[FN1] Under such provisions, the carrying of the weapon is the corpus delicti, or embodies the crime,[FN2] and the authority conferred by the license is a matter of defense.[FN3] Although a statute dealing with licenses to have and carry a concealed weapon does not expressly require that the application therefor be verified, an affidavit may be required as proof of good moral character in order to ascertain if the applicant has been convicted of a crime.[FN4] Where the statute provides for an investigation of statements in the application for a license, the officer responsible for determining whether to issue the license is entitled to consider the facts stated in the application, as well as the facts developed by outside investigation.[FN5]
    A license to carry a particular weapon does not authorize the licensee to carry a different weapon.[FN6] Nor does it necessarily justify him or her in carrying a weapon either in a manner[FN7] or to a place[FN8] specifically prohibited by statute, or in using the weapon indiscriminately, or at will, for any and every purpose.[FN9] In the absence of a provision in the statute to the contrary, a person carrying a licensed weapon need not have the license with him or her.[FN10] A person may have a right to carry an unlicensed weapon under certain circumstances, as for a harmless or legitimate purpose or motive, and it has been held that such circumstances exist when a person carries the weapon in anticipation of the commission of adultery by his or her spouse,[FN11] but it has also been held that no such right exists if he or she has sufficient time to procure a license to carry the weapon but neglects to do so.[FN12]

    Territorial limits.


    Under some statutes it has been held that within a particular territorial jurisdiction, the right to issue a license or permit to a person residing therein is confided exclusively to a designated licensing authority,[FN13] and hence, a permit issued to a resident of such jurisdiction or indeed to any other person by a magistrate or official who lacks the requisite authority within the jurisdiction is not a defense.[FN14] It has also been held that the grant of a license to carry or possess a weapon may be limited to a particular area,[FN15] such as the licensee's land,[FN16] and that the license does not excuse the carrying of an interdicted weapon outside of the licensed area.[FN17] Some statutes make the holding of a valid license issued by another jurisdiction a defense to a charge of unlawful carrying of a handgun.[FN18] A legislative scheme from another state that does not require that any license whatsoever be issued in order for the individual to lawfully carry concealed weapon is insufficient to come within such a provision.[FN19]

    Granting and revocation.


    Issuance of a handgun permit is not a right, but a privilege subject to reasonable regulation.[FN20] Thus a license is not required to be issued as of course on compliance with the conditions prescribed in the statute. The determination as to issuance of licenses lies within the discretion of the appropriate officials,[FN21] and each application is to be decided on its individual merits.[FN22] While the courts ordinarily will not interfere with a determination fairly reached,[FN23] the refusal of an official to grant such a license, on grounds not stated in the statute, will be held improper.[FN24] Since a permit to carry a firearm is a "privilege" and not a "right,"[FN25] such a license or permit creates no vested right,[FN26] may be revoked for any reason specified in the applicable statute,[FN27] and may cease to constitute a defense by reason of its having been so revoked.[FN28]

  2. #2
    Gunatic Loyalist (Bow down) mwink822's Avatar
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    The above is from 90 C.J.S. § 90, Weapons, § 30. The article is something good for a newb to CCW or someone considering obtaining a CCW permit to have a look at. I think it would be prudent to point out as it does in the body of the above article that, under the current scheme of the law, carrying a weapon is a privilege, not a right, this is despite the framers' of the constitution's motivation for possessign and carrying a weapon being a right necessary for defense.
    Last edited by mwink822; 06-15-2009 at 11:09 AM.

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