Should it be illegal to openly carry a gun to Lenexa’s Chili Challenge? Or Prairie Village’s Jazz Festival? Do any cities in Johnson County have the power to ban guns from their main streets? Cities that have prohibited the “open carry” of firearms in public are struggling with these questions, as they decide how to respond to a vow from the Kansas Libertarian Party to challenge any prohibition of open carry.
The Libertarians, supported by the Kansas State Rifle Association and the National Open Carry Organization, have been encouraged by an opinion last year by state Attorney General Derek Schmidt saying local governments are not authorized to ban open carry.
“The law is the law. We’ve got the opinion of the attorney general,” said Earl McIntosh, Second Amendment chairman of the party.
Lenexa, Gardner, Prairie Village, Leawood and Overland Park all have received or will receive a note from the Libertarians. “This is your advance notice of a formal challenge to the unconstitutional ban on the open carry of firearms on property open to the public,” says the one sent late last week to city officials in Lenexa.
The Overland Park City Council decided against a possible court fight and got rid of a ban last month. Prairie Village and Leawood plan to keep their open carry bans. Lenexa does not have any action planned.
Gardner has no specific ban on openly carrying a gun in public, but will get a challenge letter because of another ordinance which prohibits “carrying or brandishing” a weapon. Ilena Spalding, public information officer for the Gardner police department, said the police have discretion under the brandishing law to cite anyone holding any weapon in an aggressive way.The wording of that ordinance is under review, she said.
The Libertarian Party also sent letters to Kansas City, Kan., and to Wichita, which subsequently ended its prohibition of open carry.
“What we’re doing is bringing this to their attention,” McIntosh said. “We’re being very open and up front about it, letting them know they’ve gone beyond the state law.”
The party is still in the process of finding out which cities have bans, McIntosh said. But so far, it appears only a small number — maybe 10 or fewer — prohibit open carry.
The Libertarians are not trying to pick a fight, he said. In fact, he said the party hopes that the notifications they send will be enough to cause the cities to review the law and see the error of their ways. The group is not preparing any actual lawsuits. Yet.
But if the open carry bans remain? “We will keep challenging them. We will keep pursuing it in the right way, in a respectful way,” McIntosh said. “We will not go away. That’s all I can tell you.”
Not everyone in city government gives as much weight to an attorney general’s opinion as the Libertarians, however. Prairie Village recently reaffirmed its ban on open carry, based on a conflicting opinion from the League of Kansas Municipalities.
An attorney general’s opinion is not binding on city governments. It can influence judges who might hear the case. But the judges are free to come to their own conclusions.
Sandy Jaquot, general counsel for the League of Kansas Municipalities, thinks the attorney general’s opinion is wrong. The AG’s interpretation of some vague language in the state code gives cities narrow leeway in deciding how to regulate open carry, while the constitutional Home Rule amendment says cities should be given “the largest measure of self-government,” Jaquot wrote.
“If you can regulate, then you can prohibit without being in conflict of state law,” she said.
Prairie Village officials are comfortable with the league’s reading on open carry and intend to enforce the ban, said Police Chief Wes Jordan.
Leawood also plans to keep the ban against open weapons that has been on the books since at least 1999, said City Attorney Patricia Bennett.
Although Overland Park removed its ban, it was not without some qualms. Mayor Carl Gerlach posted a letter on the city’s website Friday saying city officials still worry about what could happen if the Kansas Legislature tries to loosen the law further and deny cities the right to post “no gun” signs on public buildings.
“We must protect our community’s most important residents — our children. Just as there are state laws prohibiting guns at schools and school sporting events, similar restrictions at our family attractions are needed,” Gerlach wrote. Next year, the city will ask state lawmakers to restrict guns at the Deanna Rose Children’s Farmstead, the soccer complex and the arboretum.
The vast majority of Kansas cities do not ban openly carrying guns. Jaquot said that of the 626 cities in the state, more than 500 have less than 1,000 people. Many of them don’t post the “no gun” signs on city buildings, she said.
Even the majority of Johnson County cities do not ban open firearms. Olathe has no such ban and has never had a problem, said spokesman Tim Danneberg.
Shawnee and Merriam, which also allow open firearms, seldom have any problems, police officials in those cities say.
The problem with having city ordinances more restrictive than state law is in the proximity of the cities, said Captain Dan Tennis of Shawnee. “I can drive 10 minutes and be in four different cities,” he said. “It’s really hard to enforce.”
However, gun owners are responsible for knowing the city boundaries and restrictions when they have firearms, officials say. In Overland Park, people with guns must have them under their immediate control, in a holster and with the safety on, if the gun has a safety, said city spokesman Sean Reilly. Many handguns do not have safeties, however.
“It’s the gun owner’s responsibility to know the law, just like with concealed carry,” he said.
Although concealed carry laws are already on the state books, McIntosh said the open carry question is still worth pursuing. Carrying a concealed weapon requires a special permit that some may not be able to afford, he said.
“It’s liberty. It’s constitutional rights. We have a Second Amendment that says we have a right to bear arms,” McIntosh said. “We’re doing this because it’s the law. If it weren’t the law, we wouldn’t be challenging them.”