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Ask Our Lawyer - September 2010

If the 2nd Amendment Means Anything, Doesn't it Mean That You Have the Right to Keep and Bear Arms Regardless of Where the State Line Ends?

Q: I am traveling out west on my bike through Illinois, Iowa, Montana, Nebraska California and other states. I have a permit to carry issued by the State of Ohio. Can I carry my pistol without having to call you when and if I get arrested?

- Gary Sellers, ABATE of OHIO ( Gary is in the Motorcycle Hall of Fame and a winner of the MRF Farmer's Award and also a great friend.)

A: Many of us have permits to carry. Mine is a life-time permit to carry, but it only works in the state that issued the permit. The police will tell you that your permit is no good once you leave the state that issued it. There is no federal permit to keep and bear arms even though the Second Amendment to the U.S. Constitution guarantees the right to bear arms. That said, we believe the only safe way to transport a gun across state lines without dealing with the gendarmes is as follows:

1. Keep the gun unloaded.

2. Keep the gun in a container. An Illinois appellate case seems to indicate a saddlebag may serve as a container, but the language of that case is unclear. Indiana and Ohio follow suit.

3. Always separate the ammo from the gun.

4. And if you really want to be safe from overzealous police and put it over the top, separate the gun into two pieces that are essential for its operation and place each piece in a separate saddlebag. Of course, you have just made yourself weaponless, which kind of defeats the purpose.

SO I REPEAT, if you are transporting a gun and want to be completely, without question, legal, keep it unloaded, in a locked saddlebag. Put the ammo in the other bag. Keep the key in a location which would be not readily accessible – for example, in a fork bag. If another bike and rider were traveling with you, have that rider carry the key. This will guarantee that no over-the-top policeman can take you in.

Personally, I would keep the gun and ammo a little closer at hand – why carry a gun if you don't keep it handy. Most officers of the law informally recognize a permit to carry as having been issued by a legitimate governmental entity to a legitimate taxpayer deserving of Second Amendment rights. That said, there is always a Rambo out there waiting for the opportunity to bust honest, taxpaying, gun carrying citizens because their state law does not match the enforcing requirements of the issuing state. I say the U.S. Supreme Court will hear this one someday and will clarify the law in favor of gun permit holders. What good is the right to "keep and bear arms" if you can not keep and bear arms? The 2nd Amendment does not say that you have the right to keep and bear arms, so long as you stay in one state. Breaking a gun down into parts and storing the ammo in another place is not "keeping and bearing arms" and is just plain silly. Anyone up for being a test case?

Here’s a related question to Gary’s question - Rod

Q: I am planning a trip out West to California on my motorcycle in November. As a female traveling alone I intend to take a loaded revolver for added security. I will carry it secured in my dresser's front left lower compartment which requires me to remove a snap cover before I can reach it. I will lock it in the tour box when briefly away from the locked bike, which also has an audible alarm/security and ignition override.

I do already hold a 'lifetime personal carry permit' that was issued in Indiana. I am a retired RN and have a clean record. I don't intend to show or wave the gun around any more than I would show my toothbrush. Hopefully, it should stay tucked away the entire trip.

During any sort of traffic stop in Indiana, I always inform the officer that I have a gun in the vehicle and hold a carry permit. What would you suggest that I need to do if stopped or while travelling through the states of IL, MO, KS, OK, TX, NM, AZ, or CA. (I am most concerned about CA.) I need straight advice please,

- J.S., Indiana ABATE member for 19 years

A: J.S., see my response to Gary Sellers above. If the gun is loaded and in your saddle bag, I would not volunteer you have it. I would respond honestly to the officer who asks if you are in possession of a weapon. If he does not ask, do not volunteer. This is especially true if you are being stopped for a routine traffic matter. If you are camping in California State Parks, remember there are special rules that apply to parks. Again, I would value your personal security over technical requirements. I know of incidents on the Appalachian Trail where some women could have used a loaded gun. I take the position that a tent is your abode or residence blest with Second Amendment rights. I believe the law affords us more protection when it comes to

protecting our "place." The law certainly contemplates this as it relates to RV owners. Interestingly, Supreme Court Justice Clarence Thomas, an RVer, is an ardent supporter of the Second Amendment. I would just about guarantee that he has one packed in his RV. Expect his position to be like ours on future cases dealing with this issue.

Carrying on from the Afterlife

Q: My father wants me to be the executor of his estate to carry out some wishes he wants seen to after he has passed. What do I need to do for this? He does not want to make out a will, but has a few requests. He does have a living will and a health care power of attorney, but I am not sure how to do make sure his wishes are carried out. Thank you for your assistance.

- Kelly Schlotter, Region 3, ABATE of Indiana

A: Please call me so that I can get a few more details, but in general, the only way a person can make sure that his wishes are carried out after his death is to have a will. Without a will, the state probate laws will determine how the deceased person’s property is distributed. If his wishes don’t follow what the law requires, the law will control what happens to his property. The only way to prevent that is to have a will. Doing a will is not difficult or expensive, and going through the probate process does not have to be difficult or expensive either, especially if the estate has relatively low financial value. And remember, we will provide wills for ABATE members without cost.

If There Is a Statute of Limitations for Rape and Murder – Surely There Is One for a Traffic Ticket

Q: I have a little problem. I went to renew my driver’s license, and was told it was suspended and that I had to contact the BMV in North Carolina. They want a fine of almost $800.00 and a $50.00 reinstatement fee or I can’t get my license back. These are 26 years old tickets I got when I was in the army for not wearing a seat belt and not having my driver’s license with me, $386.00 for speeding 47 in a 35, and an expired registration ticket for $366.00. I was told pay it or show up in Fayetteville, N.C., or don't drive. Since I live in Dayton Ohio, the appearance part is a bit difficult. Looks like they are going to get me for almost $1,000 for tickets that are a quarter of a century old. If they had sent me a notice to send the ticket money, I would have sent it in. What is going on here?

- Lars C. Beavers Jr. ( Phoenix), ABATE of OHIO member

A: Believe it or not, there is no statute of limitations for a traffic citation in N. Carolina or Ohio. It seems hard to believe when there is such a limitation for some pretty bad crimes. We have received several similar complaints, and I suspect that there is a fee generating operation with all states trying to help each other collect revenue. That maybe fine in today’s dire straits for state government, but it should not come at the expense of taxpayer’s inability to defend against bogus and dated citations. Surely a quarter of a century qualifies. It is the age of information sharing, so it is obvious to me that N. Carolina hired some drones to check old unpaid tickets. Question is, why didn't they send you a request for payment 20 years ago? It seems that you have to get the clearance from N. Carolina before Ohio will allow you to renew your drivers license. What ever happened to due process? Maybe our legislators need to pass a law providing a statute of limitation for dated/obsolete tickets. Come to think of it, I just remembered a parking ticket I got in an eastern state on a bike trip that turned out to be a hassle to pay. I may be next.

Blood Is Thicker than Water?

Q: I just bought a pricey motorcycle with lots of horsepower. Because of my age, the insurance was more than I could afford, so I canceled the collision portion and only pay liability. This dropped my insurance premiums significantly, but here is my problem. My brother in law borrowed the motorcycle to take a spin around the block. Well it turns out that he was not as experienced as he led me to believe, lost control on the ride and totaled my brand new motorcycle. I am just sick about it. What do you advise me to do?

A: If your brother in law has a motorcycle, ask to look at his policy. He may have coverage that would replace your bike. You should also check his auto polices to see if they provide coverage. Most likely, his auto polices do not afford coverage, but you should look at the language of the policy just in case. I have seen auto policies that would arguably allow coverage for this loss. If you have questions, call. If you strike out, you are then faced with confronting your brother in law about paying for the bike. If he refuses, you have two choices: 1., decide blood is thicker than water and forget it or 2., sue him. Good luck at the family reunions on choice no. 2.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com © 2010, A.B.A.T.E. Legal Services