James R. Balmforth: The Second Amendment In Utah

Utah allows for open carry of unloaded firearms without a concealed firearm permit. “Unloaded” as it applies here, means that there is no round in the firing position (or chamber), and the firearm is at least two “mechanical actions” from firing. As carrying the firearm with the chamber empty, but with a full magazine, meets this definition (the handler must chamber a round, and then pull the trigger), this is a common work around for Utah residents who do not wish to acquire a permit. Without the permit, the firearm must be clearly visible. Utah requires a permit to carry a concealed firearm. With a permit, a person may carry a firearm with a loaded chamber either openly or concealed.

Utah will honor a permit issued by any state or county. Utah does not require concealed carry permit holders to notify police officers of their permit or possession of firearms when stopped by police officers, but the state Bureau of Criminal Identification recommends doing so “for the safety of all involved” and to give the officer “some assurance they are most likely dealing with a law abiding citizen.” Utah law allows for a “Non-Resident” Concealed Firearm Permits to be issued. The Utah Concealed Firearm Permit is valid in thirty-four states across the US. However there are several states that have passed statutes that do not honor a “Non-Resident” permit. For example, Colorado will honor Utah’s permit, but the permittee must be a resident of Utah for his permit to be valid. Utah concealed firearm permits are “shall issue” and will be issued to anyone meeting the requirements. Utah is a “Castle Doctrine” state, in which there is no duty to retreat before use of deadly force, if the person reasonably believes that a perpetrator is going to commit a forcible felony in the habitation, and that the force is necessary to prevent the commission of the felony. Since burglary is itself a forcible felony, it is legal to use deadly force to stop a burglar. In Utah a person may carry firearms in some places not allowed by some other states, including banks, bars, public universities, and state parks. With a permit, you may also carry in schools (K-12). Utah’s Uniform Firearm Laws expressly prohibits public schools from enacting or enforcing any rule pertaining to firearms. Utah requires public schools to allow lawful firearms possession. Online classified websites are a common meeting place for buyers and sellers. One highly utilized internet site was the classified advertising section of news station KSL-TV. However, after the Sandy Hook Elementary School shooting in December 2012, KSL temporarily disallowed sales or advertising of firearms. KSL has yet to rescind their stance.

Prohibited persons

There are two categories of persons who may not possess firearms or dangerous weapons under Utah law. Penalties for weapons possession by category I restricted persons are more severe than the penalties for possession by category II restricted persons.

Category I covers persons who have “been convicted of any violent felony” or are “on probation or parole for any felony” or have been “within the last 10 years an adjudicated delinquent for an offense which if committed by an adult would have been a violent felony”. Under Utah law, “A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under his custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a second degree felony.”

Category II covers persons who have “been convicted of or are under indictment for any felony” or have “within the last seven years been an adjudicated delinquent for an offense which if committed by an adult would have been a felony” or are “an unlawful user of a controlled substance” or have “been found not guilty by reason of insanity for a felony offense” or have “been found mentally incompetent to stand trial for a felony offense” or have “been adjudicated as mentally defective as provided in the Brady Handgun Violence Prevention Act” or are “an alien who is illegally or unlawfully in the United States” or have “has been dishonorably discharged from the armed forces” or have “renounced his citizenship after having been a citizen of the United States”. A Category II restricted person who purchases, transfers, possesses, uses, or has under his custody or control any firearm is guilty of a third degree felony under Utah law.

NFA firearms

Under Utah state law, “Any person who transfers in violation of applicable state or federal law a sawed-off rifle, sawed-off shotgun, or fully automatic weapon to a minor is guilty of a third degree felony.”

Carrying Concealed Firearms

Utah is a shall issue state for permits for the concealed carry of firearms. Utah law states “The bureau shall issue a permit to carry a concealed firearm for lawful self defense to an applicant who is 21 years of age or older within 60 days after receiving an application, unless the bureau finds proof that the applicant does not meet the qualifications set forth”. Permits are issued to both Utah residents and non residents. Applicants between 18 and 20 may obtain a provisional permit. Persons convicted of a felony, any crime of violence, any offense involving alcohol, any offense involving the unlawful use of narcotics or other controlled substances, any offense involving moral turpitude, any offense involving domestic violence, or persons found by any court to be mentally incompetent are automatically barred from being issued a permit. Any person barred by state or federal law from possessing a firearm may not be issued a permit. Additionally, “The bureau may deny, suspend, or revoke a concealed firearm permit if it has reasonable cause to believe that the applicant or permit holder has been or is a danger to self or others as demonstrated by evidence”.

Examples of such evidence include “past pattern of behavior involving unlawful violence or threats of unlawful violence” or “past participation in incidents involving unlawful violence or threats of unlawful violence”. In determining whether the applicant or permit holder has been or is a danger to self or others, the bureau may inspect expunged records of arrests and convictions of adults, and juvenile court records. However, Utah law also states that “The bureau may not deny, suspend, or revoke a concealed firearm permit solely for a single conviction for an infraction violation of Title 76, Chapter 10, Part 5, Weapons”. Permit holders may appeal a permit suspension, denial or revocation. Utah law states that “In the event of a denial, suspension, or revocation of a permit, the applicant or permit holder may file a petition for review with the board within 60 days from the date the denial, suspension, or revocation is received by the applicant or permit holder”.

Restrictions of Concealed Carry

Even with a carry permit, carrying a concealed firearm is not allowed in any church that notifies the State of Utah and makes public notice. A church must, by state law, make annual notice of this intent to prohibit firearms from their “houses of worship”.

Penalties for concealed carrying without permit

Carrying a concealed firearm without a permit is a class B misdemeanor if the firearm is unloaded (No round in the chamber), and is a class A misdemeanor if the firearm is loaded (Has a round in the chamber). A person who carries concealed a sawed-off shotgun or a sawed-off rifle is guilty of a second degree felony under Utah law. If an unlawfully carried concealed firearm is used in the commission of a violent felony, and the person is a party to the offense, the person is guilty of a second degree felony.
Concealed Carry Permit Reciprocity
Utah recognizes any firearm carry permit issued by any state of the United States, or any political subdivision thereof. As of September 1, 2019 36 States recognize the Utah Permit (two of them require that the permit holder reside in Utah) and 14 States do not recognize the Utah Permit.
Concealed carry on private property
Any person eligible to possess a firearm may carry that firearm, either concealed or unconcealed, in their own home or property, or on any private property with the consent of the property owner. Utah law allows concealed firearm permit holders (CFP), including teachers with a CFP, to carry a concealed firearm on any public school premises.
Specific crimes with firearms
Carrying a firearm with the intent to unlawfully assault another is a class A misdemeanor under Utah law. Drawing or exhibiting a firearm in an angry and threatening manner, or unlawfully using a dangerous weapon in a fight or quarrel in the presence of two or more persons is a class A misdemeanor. This law does not apply when firearms are properly used in self-defense. Negligently discharging a firearm in a manner that disturbs the peace or could damage or harm public or private property is a class B misdemeanor. Discharging a firearm in a manner that significantly endangers any person, or discharging a firearm into any habitable structure is third degree felony. If bodily injury to any person results from such negligent discharge, the offense can be elevated/enhanced to a second or first degree felony, depending upon the severity of the bodily injury or harm caused by the negligent discharge. Any person who carries a firearm while under the influence of alcohol or a controlled substance is guilty of a class B misdemeanor.

Right to keep and bear arms in state constitution

Article I, Section 6, of the Constitution of the State of Utah provides that: “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.”

State Right to Bear Arms in Utah

Article I, § 6 of the Utah Constitution, as originally drafted (in effect from 1896 until 1984), provided: “The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law.” The Supreme Court of Utah interpreted this language to allow the state legislature to regulate firearms extensively. Article I, § 6 was amended in 1984. It now states that “[t]he individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.”

The Second Amendment Preservation Act is Constitutional

Representative Brian Greene, in an effort to support the individual right to keep and bear arms, has sponsored House Bill 114, titled the “Second Amendment Preservation Act.” This bill upholds both the U.S. and Utah Constitutions, each of which declare that this right “shall not be infringed.” HB114 simply strengthens state code to stipulate exactly how that such an infringement will be dealt with.

Specifically, the bill:

• affirms that it is the exclusive authority of the legislature to adopt and enact any and all laws, orders, rules, or regulations regarding the manufacture, transfer, possession, ownership, and use of firearms exclusively within Utah;

• provides that any federal action which purports to impose limitations on firearms contrary to the Second Amendment of the Constitution of the United States, or the Constitution or laws of the State of Utah, is unenforceable in Utah;

• creates a penalty for any enforcement of federal laws contrary to Utah laws or the United States or Utah Constitutions; and

• allows the attorney general to defend state officers, employees, and citizens prosecuted under certain federal laws.

Critics have pounced on this proposal, claiming that it is unconstitutional to pass a law in violation of a federal statute. For their support, they point to the legislative review note on HB114, authored by a staff attorney, which appears at first blush to substantiate their concerns. But this legislative note is incorrect and misleading, and therefore merits a response.

Does HB114 violate the Supremacy Clause?

Attorneys disagree all the time. It’s what they’re employed to do. Judges also disagree, often overturning lower judges’ decisions, or even reversing decisions made by judges in the same court. This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Obviously, the language regarding treaties is not relevant to this issue. But leaving out the portion of the clause that specifies which federal laws are supreme is highly misleading to the legislators tasked with determining whether or not the pass the bill. In fact, the omitted portion of this clause is the very reason HB114 exists at all! Many believe that federal gun laws are not made “in pursuance of” the Constitution, and are therefore unconstitutional.

Therefore, state legislatures may interpose themselves between such unlawful mandates and their citizens to protect them from unconstitutional federal overreach. This is substantiated by a significant number of statements made in debates during the framing and ratification of the Constitution. The legislative attorney’s incorrect interpretation of the Supremacy Clause, which relies upon omitting three important words from the text of the Constitution, was something that was actually considered by the framers of the document. A small number of them proposed what would be known as the “Virginia Plan” for the Constitution, one of its primary parts being the authorization of veto power by the federal government over all state laws. That plan was not approved. The legislative note further argues that, “While this legislation limits itself to wholly intrastate conduct, it is not beyond the reach of Congress’s power under the Commerce Clause of the United States Constitution.” The reach of Congress’s power can only be justified to the extent that is based upon its constitutionally-delegated powers. The Commerce Clause states that, “[The Congress shall have Power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

So what does it mean to “regulate”?

Whether it means to micro-manage, as has recently been concluded in numerous Supreme Court cases, or to “make regular” (ensuring commerce flows freely), as some have argued, is ultimately irrelevant. This clause is restricted both by the prevailing colonial definition of “commerce,” which was mercantile trade and not anything indirectly connected to it, as well as being limited to commerce “among” (and not within) the several states. In other words, even if Congress had been constitutionally conferred the authority to prohibit or mandate certain forms of commerce (which is a highly contestable point), they could only do so when such commerce moved (or was clearly going to move) from one state to another. It is illogical to conclude that the framers of the Constitution generally consented to a national government which could regulate, mandate, or prohibit economic activity within a family or community or state. As the legislative note explains, however, there is “long-standing interpretation” by the Supreme Court which has allegedly authorized Congress to micro-manage any economic activity, whether it is interstate (“among the several States”) or intrastate (wholly within a single state). It is illegal in Utah for a person under the influence of alcohol or a controlled substance to carry a dangerous weapon. Unfortunately, this result criminalizes some legitimate situations in which a person should still retain the right to carry and use a firearm.