Mississippi

The Mississippi Supreme Court overturned Hinds County Circuit Court Judge Winston Kidd’s injunction against House Bill 2 today. HB 2 defined what constituted concealed for the purposes of concealed carry. By defining concealed, the bill clarified that open carry is permitted under the Mississippi State Constitution.

Judge Kidd had found HB 2 to be “unconstitutionally vague” back in July and had issued a permanent injunction against the law. The parties seeking the injunction included Hinds County DA Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis, and St. Senator John Horhn (D-Jackson). Backers of the the lawsuit included the Southern Poverty Law Center who helped draft the briefs.

In their 9-0 decision, the Mississippi Supreme Court found that Judge Kidd had erred as a matter of law.

This Court now finds that the Circuit Judge erred as a matter of law when he found House Bill 2 to be vague and, therefore, unconstitutional. He also erred when he stated that “a reasonable person reading the bill could not discern what the law allows and what it prohibits.” Therefore, the Petition for Interlocutory Appeal is granted and rendered, and the Order Granting Plaintiffs’ Motion for Injunctive Relief is vacated.

The Court also assessed the cost of the appeal to the Appellees.

Mississippi politicians were quick to praise the Supreme Court’s decision on open carry.

Gov. Phil Bryant (R-MS) released this statement:

JACKSON—The Mississippi Supreme Court today ruled 9-0 that House Bill 2, which clarifies the definition of “concealed” for purposes of Mississippi laws regarding the concealed carrying of firearms, is valid and constitutional. The court also vacated the injunction that a Hinds County judge had issued against the bill. As a result, it is now clear that House Bill 2 can take effect statewide.

“House Bill 2 is an important clarification of citizens’ right to keep and bear arms under the state and federal Constitutions. I am very pleased that the court has agreed that House Bill 2 is consistent with the Constitution so that law will now take effect statewide.”

Lt. Gov. Tate Reeves (R-MS) issued a briefer statement praising the decision:

“I’m proud the Supreme Court confirmed our goal of protecting our right to bear arms. Today’s ruling is a win for our Constitution and a win for every Mississippian.”

Rep. Andy Gipson (R-Braxton), author of HB 2, said he knew his bill was constitutional and was happy that the Court agreed.

“When the lawsuit was first filed, I said I never seen a lawsuit filed over the constitutionality of a law in the Constitution,” Gipson said.

Gipson has said “If you carry a weapon concealed, you need a concealed carry permit. Otherwise, the Constitution of 1890 guarantees each citizen the right to keep and bear arms to defend himself/herself. No change to the constitution here; just defining concealed for the first time. Until now, individual law enforcement or courts could fabricate a definition which resulted in an illogical infringement on constitutional rights.”

The statement from Secretary of State Delbert Hoseman (R-MS) noted he was a NRA Life Member and he was pleased the Supreme Court “has protected this fundamental right.”

Of course, the plaintiffs who brought the case were none too happy. St. Sen. John Horhn (D-Jackson) plans to introduce legislation to require permits for both open and concealed carry. He has also called on Jackson and Hinds County leaders to ban open carry. It should be noted that Sen. Horhn, like every other member of the Mississippi legislature, voted for HB 2.

There is no word of any public reaction from Hinds County DA Robert Shuler Smith or his attorney Lisa Ross.

Hinds County Circuit Court Judge Winston Kidd issued a permanent injunction against Mississippi HB 2 calling it “unconstitutionally vague.” He ordered that it can’t take effect until such time as the Mississippi Legislature “reviews, amends, or clarifies” HB 2 so as to accomplish its intended purpose.

found no case law, or any other authority, which gives an individual the absolute right to “open carry” a weapon, as contended by the state.”. Judge Kidd further said “when the legislature creates laws which are vague, confusing, and overbroad, then it is the responsibility of hte court to make a determination as to the law’s constitutionality…. House Bill 2 is unconstitutional…

House Bill 2 does more than define “concealed.” It creates confusion and chaos with respect to the enforcement of gun laws here in this state. House bill 2 does not clearly set forth “who is allowed to openly carry a weapon in a holster. Certainly our legislature did not mean to allow anyone and everyone to openly carry a weapon in a holster. Next, House Bill 2 does notn state “where” an individual can openly carry a weapon in a holster. If this law goes into effect, individuals will attempt to openly carry weapons anywhere and everywhere. This can not possibly be the intent of our legislature….”

The full decision can be found here.

Mississippi House Judiciary Chairman Andy Gipson (R-Braxton), who was the author of the bill, fully expects Kidd’s ruling to be appealed by the State of Mississippi to the Mississippi Supreme Court. He has also gotten confirmation that the National Rifle Association intends to file an amicus brief in support of the state’s case.


In comments to the Clarion-Ledger, Gipson said:

“They (NRA) do see this as a matter of constitutional gun rights being threatened,” Gipson said.

Gipson said he was not surprised by the judge’s ruling, and believes the case will head post-haste to the state Supreme Court.

“(Kidd) just continued what he did with the temporary restraining order, and I am confident we will be appealing, the state will appeal, to the Supreme Court,” Gipson said. “I just think the judge got it wrong. Anybody who reads House Bill 2 can clearly see the legislation is clear and that the Legislature has the right to regulate concealed carry.

Attorney General Jim Hood (D-MS) released a written statement this afternoon indicating that he will be appealing the ruling after he has had time to study it.

“We are in the process of reviewing the Judge’s order,” said Hood in a written statement. “At this stage, we are likely to ask the Mississippi Supreme Court to take a look at this case. We have 21 days to do so, but it will be up to the Court as to whether and when they do. It remains the duty of this office to defend our State laws and their constitutionality.”

More comments from both sides and some courtroom footage can be in seen in the video report below from WLBT-Channel 3/Fox 40 in Jackson.

MSNewsNow.com – Jackson, MS

The State of Mississippi passed a law in March clarifying the law regarding open carry in that state. It was to go in effect today. Late Friday afternoon, the District Attorney for Hinds County (Jackson) and an attorney for the Southern Poverty Law Center found a judge who would grant a temporary injunction against the law. As David Codrea noted on Saturday, Judge Winston Kidd bypassed the normal checks and balances.

In an unabashed feat of judicial and linguistic contortion, Kidd ruled that specific language is “vague,” and justified his injunction on the grounds that allowing the bill to take effect would cause “irreparable harm.” That’s consistent with what opponents of the bill, who lost their fight to kill it in the legislature, are promulgating.

Jeff Pittman, a gun rights advocate in Mississippi, had this to say in his 2A Newsletter which I’ve reprinted with Jeff’s permission.

House Bill 2 rationally defines concealed weapons as those not readily visible, and unconcealed weapons as those readily visible. The effect of the law is that open carry will be generally legal without a permit, as the Mississippi constitution provides. The only reason folks haven’t been able to open carry in the past is the erroneous definition of “concealed” in current law and case law, which refers to “concealed in whole or in part.” The constitution says nothing about concealed “in part.”

In what can only be described as a sneak attack, late Friday afternoon just before the courts closed for the last time before the law took effect, a lawsuit was filed seeking an emergency injunction against the law’s taking effect on Monday morning (today).

The lawsuit was brought by Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Tyrone Lewis and state Sen. John Horhn (D-Jackson) among others. Those ELECTED officials will be remembered in the future.

The plaintiffs apparently went judge shopping and found a winner in Hinds County Circuit Judge Winston Kidd (another ELECTED official), who agreed the law was ambiguous or vague and a restraining order was “necessary to prevent immediate, irreparable harm.” Kidd issued a temporary injunction in the emergency hearing sometime after 4:30 Friday afternoon.

What the alleged ambiguity or harm is was not clear. What the emergency was to block a law that was passed months ago was also unclear.

Not being an attorney, I was unaware that a county judge could block a state law. What if another county judge blocks the original concealed carry prohibition law?

The temporary restraining order reportedly will last until July 8, when Kidd has scheduled a hearing on the merits of an injunction to block the law.

Look for this to move to a competent court.

Both Horhn and another plaintiff said they don’t believe the constitution provides for open carry. But Article 3, Section 12 of the MS Constitution reads:

“Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”

Jody Owens, an attorney for the Southern Poverty Law Center (a well-known liberal hate group), represented DA Smith, and spun a bizarre story for the press, saying “The plaintiffs are trying to stop mayhem. We’re looking at a wild, wild west scenario.”

Arguing for the state, assistant attorney general Harold Pizzetta said that open carry is already protected by the state’s constitution, because it isn’t mentioned in a section that gives the Legislature the right to regulate concealed carry (see above).

Once the new law takes effect, there will still be a lot of problems due to erroneous efforts to circumvent it. Agencies and local governments statewide are falling all over themselves to try to ban legal guns from all government buildings by passing policies and posting signs, apparently little of which is supported by statute. Keep in mind that we also have a preemption law prohibiting such activities by cities and counties. Mississippi Code section 45-9-51 reads “Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts or requires the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components.”

Mississippi Attorney General Jim Hood filed a combined petition to vacate a restraining order and emergency petition for interlocutory appeal with the Supreme Court of Mississippi today. Jeff Pittman notes in a later email that Hood has never been a “particularly strong proponent of gun rights, and this case is likely more of a turf war than a battle of philosophies.” I think Jeff may be quite correct on this last point if this part of the petition is any indication.

From the Gun Rights Examiner:

“[T]he Motion incorrectly declares that District Attorney [Robert Schuler] Smith is bringing this matter in his capacity as ‘the chief legal officer of the State of Mississippi,” the petition documents in an ironic comment about lack of standing that illustrates a presumption of non-existent authority and questionable legal competence on the part of both the DA and the Southern Poverty Law Center attorney backing the power grab.

“A district attorney is prohibited from bringing any suit the subject matter or impact of which would be statewide because only the Attorney General may bring such a suit of statewide importance,” the petition reminds the Court.

The Supreme Court has given Hinds County DA Robert Smith and the rest of the respondents until 5pm this afternoon to file their response.

I would not be surprised to the injunction vacated sometime tomorrow on standing grounds alone. I’ll post more as it becomes available.

UPDATE: Checking the docket of this case on the Mississippi Supreme Court’s website, it appears that the respondents/plaintiffs did submit their response by the end of the business day on Monday. Unfortunately, I’m not able to download their response to read it.

UPDATE II: Thanks to Jeff Pittman (see comments) we have the response by the gun prohibitionists. It can be found here.