Haley Broom, Esq.

*1 Attorney General Jim Hood has received your request for an official opinion of this office submitted on behalf of Harrison County Sheriff Melvin Brisolara and assigned it to me for research and reply.

*1 Your letter asks four questions concerning the authority of a sheriff to regulate or control the carrying of firearms in a courthouse. To better facilitate answering your question, we believe that a general discussion of the application of Mississippi's gun laws, the distinctions between local regulation and local governmental use of State signage laws and the distinctions between open carry and concealed carry would be useful. Accordingly, your questions will be set out in their entirety below along with a brief answer after the general discussion.

*1 Open carry of a firearm in Mississippi is not a right established by any particular statute. Section 12 of the Mississippi Constitution states:

*1 MS Const. Art. 3, Sec. 12. Thus, the right to “open carry” under Mississippi law apparently derives from this constitutional provision. There are no Mississippi statutes that expressly grant the right to open carry and no statutes that address requirements, qualifications or limitations regarding open carrying of a firearm. With one exception, there are no statutes that authorize signage or that purport to set out locations where open carry of a firearm is prohibited. The one exception is Section 97-37-17(2) which states: ““It shall be a felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind ... on educational property.” House Bill 2, which was passed in the 2013 Regular Session (H.B. 2), is commonly referred to as Mississippi's “Open Carry Law.” However, the principal effect of H.B. 2 was to amend Section 97-37-1 which criminalizes the concealed carry of various weapons. The primary amendment by H.B. 2 was to change or clarify the definition of “concealed” and to remove the criminal penalties for carrying a weapon “concealed in whole or part.” After H.B. 2 a weapon, in order to be concealed and subject to criminal penalties, has to be hidden from “common observation.” Moreover, the provisions of H.B. 2 provide examples of what is not concealed making clear that “a loaded or unloaded pistol carried upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible, or carried upon the person in a scabbard or case for carrying the weapon that is wholly or partially visible” does not fall within the statute's use of the term ““concealed.”

*2 H.B. 2 did not expressly authorize the carrying of an open weapon and, instead made clear that carrying a weapon that was not hidden from common observation or a pistol in a sheath, holster or a scabbard did not violate the concealed weapon statute, Section 97-37-1. Thus, to the extent that carrying a weapon openly in this State is legal, that right must be based on the premise that (1) such carry is protected by Section 12 of the Constitution and (2) the Legislature has not, absent limited exceptions, made open carrying of a weapon a violation of the law.

*2 This State's regulation of concealed weapons, and in particular concealed stun guns, pistols and revolvers, is found primarily in Section 97-37-1 dealing with criminal penalties for unlicensed concealed carry, Section 97-37-7(2) authorizing enhanced endorsements to concealed carry licenses and Section 45-9-101(13) setting forth the licensing scheme for concealed carry of stun guns, pistols and revolvers. The Legislature's authority in this regard is drawn directly from Section 12 of the Mississippi Constitution which authorizes the Legislature to “regulate or forbid¹ carrying concealed weapons.” These statutes are related and apply only to concealed carry of weapons by private citizens.² As noted above, Section 97-37-1 criminalizes unlicensed carry of a concealed weapon. Section 97-37-7(2), as it relates to carry by private citizens, authorizes license holders with an enhanced endorsement to carry concealed weapons in various places such as “in courthouses except in courtrooms during a judicial proceeding, and any location listed in subsection (13) of Section 45-9-101, except any place of nuisance as defined in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail.” Section 45-9-101(13) applies to both the licensing requirements for concealed carry licenses and to the posting of signs to prevent concealed carry by individuals.³

*2 The attempts to apply these “concealed” firearms provisions to openly carried weapons have created no small amount of confusion across the State. This is particularly true with regard to Section 45-9-101 and in particular Subsection (13). Section 45-9-101 is a concealed weapon licensing scheme. Subsection (13) lists places in which concealed weapons cannot be carried by regular license holders,⁴ and the signage provisions specifically authorize signs for prohibiting concealed carry of stun guns, pistols and revolvers. In summary, neither the locations listed in Subsection (13) nor the authority to post signs to prohibit weapons has any applicability to open carry of weapons.

*2 Municipalities and counties are given their own independent regulatory authority to enact ordinances or adopt orders regulating the carrying or possession of firearms pursuant to Section 45-9-51 and Section 45-9-53. Section 45-9-51, subject to limited exceptions, prohibits municipalities from regulating the carrying of firearms as follows:

*3 Section 45-9-53 authorizes limited regulations by stating:

*3 We have previously opined, based on these statutes, that “a municipality may regulate, by ordinance, the carrying of any firearm, whether concealed or not, at only the locations or events identified in Section 45-9-53.” MS AG Op. Trapp (Dec. 2, 2013). It remains our opinion that a municipality can utilize its independent regulatory authority to prohibit the carrying of firearms only at (1) a public park or at a public meeting of the municipality or other municipal governmental body; (2) a political rally, parade or official political meeting; or (3) a nonfirearm-related school, college or professional athletic event. This opinion applies equally to counties.

*3 When a county or city regulates open carry, it must also consider federal constitutional issues, and any such regulation must meet constitutional muster. In Trapp, we opined as follows:

*3 MS AG Op. Trapp (Dec. 2, 2013). A sensitive place analysis and determination need only be made where the right to carry involves open carry. Second Amendment concerns are not raised by concealed carry regulations and, therefore, sensitive area analysis is inapposite in the context of concealed carry regulations. See fn. 1, supra.

*3 Thus, a municipality or county has two possible courses of action if it desires to restrict the possession or carrying of firearms. First, a county may enact ordinances regulating such possession. However, as noted, the places or events where such regulations apply must be limited to the locations set forth above and found in Section 45-9-53(1)(f). It is the opinion of this office that when a county is enacting an ordinance pursuant to Section 45-9-53, the ordinance can apply both to concealed carry⁵ or open carry.

*4 Second, a municipality or county may utilize State law authority to post signs pursuant to Section 45-9-101(13) as modified and limited by Section 45-9-53. When acting pursuant to these statutes, a county “is acting pursuant to state law and not exercising its independent regulatory authority.” MS AG Op. Trapp (Dec. 2, 2013). Short of an order to have appropriate signs posted in appropriate places, a county or municipality does not need an ordinance in order to avail itself of the right to place signs under these State statutes. However, the authority for a county or municipality to post signs is not as broad as the authority of a state or private entity. When Section 45-9-53 was amended by H.B. 314, the Legislature added additional restrictions to the authority of counties and municipalities to post signs to prohibit carrying of firearms.

*4 Under the amended version of Section 45-9-53, municipalities and counties may not “use the written notice provisions of Section 45-9-101(13) to prohibit firearms on property under their control except in the locations listed in subsection (1)(f)” of Section 45-9-53. A county or municipality may post signs “[a]t a location listed in Section 45-9-101(13)” if the sign indicates that “a license issued under Section 45-9-101 does not authorize the holder to carry a firearm into that location.” However, the sign must also indicate that “carrying a firearm is unauthorized only for license holders without a training endorsement or that it is a location included in Section 97-37-7(2) where carrying a firearm is unauthorized for all license holders.” A county or municipality may also post a sign “[a]t any location under the control of the county or municipality aside from a location listed in subsection (1)(f) of this section or Section 45-9-101(13) indicating that the possession of a firearm is prohibited on the premises, as long as the sign also indicates that it does not apply to a person properly licensed under Section 45-9-101 or Section 97-37-7(2) to carry a concealed firearm or to a person lawfully carrying a firearm that is not concealed.” Thus, with regard to locations other than those listed in Section 45-9-53(1)(f) and Section 45-9-101(13), it appears that a county or municipality can only post signs prohibiting carrying of weapons by individuals who are otherwise illegally carrying either a concealed or openly carried weapon.

*4 There is an apparent inconsistency in Section 45-9-53(4) which merits discussion. Section 45-9-101(13) contains a catchall provision that states:

*5 This catchall provision of Section 45-9-101(13) allows the “entity exercising control over the physical location” to post signs prohibiting the carrying of a concealed pistol or revolver in “any place” over which the entity exercises control. This provision causes what is apparently an ambiguity in or inconsistency with Section 45-9-53(4), because subsection 45-9-53(4)(b) provides that “[a]t any location under the control of the county or municipality aside from a location listed in subsection (1)(f) of this section or Section 45-9-101(13),” the posted signage does not apply to persons licensed under Section 45-9-101 or persons with enhanced carry rights under Section 97-37-7(2) or to a person lawfully and openly carrying a firearm. If the reference in Section 45-9-53(4)(a) authorizing counties and municipalities to post signs under subsection (4)(a) is read to include the catchall in Section 45-9-101(13), then that reading has the effect of nullifying subsection (4)(b) and rendering the entirety of subsection (4)(b) meaningless. This is true because the inclusion of the catchall in Section 45-9-101(13) would make it applicable to all county or municipal property. Thus, when subsection (4)(b) makes references to places other than a location listed in subsection 45-9-53(1)(f) of this section or Section 45-9-101(13), it could have no meaning. It would be impossible for a county or municipal property to exist that was not included in the catchall of Section 45-9-101(13). Thus, subsection (4)(b) would never be applicable. Moreover, the entire legislative scheme to limit the authority of counties and municipalities to post signage prohibiting firearms would be thwarted since counties could post signage under subsection 4(a) to any property or facility controlled by the county or municipality. Accordingly, it is the opinion of this office that when counties or municipalities are using the posting provisions of Section 45-9-53(4)(a), they are not authorized to post signs unless the places or events are specifically named or listed, and they may not use subsection (4)(a) signage in places covered by the catchall provision.

*5 Your request sets out four questions enumerated in the request as follows:

*6 In response to question numbers 1 and 1(a), the Sheriff may post signs pursuant to Section 45-9-101(13) as specifically allowed by Section 45-9-53(4)(a). Those signs should follow the language as set forth in the various statutes. Section 45-9-101(13) specifies the sign requirements including the language and location of the sign as follows:

*6 (Emphasis added; Quotations in original). Section 45-9-53(4)(a) further requires that “the sign also indicates that carrying a firearm is unauthorized only for license holders without a training endorsement or that it is a location included in Section 97-37-7(2) where carrying a firearm is unauthorized for all license holders.” The statute states that the sign should read that the “carrying of a pistol or revolver is prohibited.” The language in your request does not comply with this specified language. A court might determine that the proposed language complies or substantially complies. Our office can only state that the sign differs from the language set out in quotes within the statute.⁶

*6 The wording regarding license holders without a training endorsement is close to the actual language of Section 45-9-53(4)(a) but not exact. The sign could easily be worded to include the language that “carrying a firearm is unauthorized only for license holders without a training endorsement” which would remove any question. Thus, we believe the Sheriff could post a sign as discussed in this opinion. We do not believe that the Sheriff has any independent authority to regulate beyond usage of the sign under State law. This is because a courthouse is not listed in Section 45-9-53(1)(f) which, as discussed above, sets forth exclusively where municipalities or counties can regulate carry of firearms under their independent regulatory authority.

*6 In response to question number 2, we do not believe that a Sheriff has authority to regulate open carry of weapons in a courthouse. The signage authority under Section 45-9-53(4)(a) over locations listed in Section 45-9-101(13), which includes courthouses, expressly states that a sign must indicate that “carrying a firearm is unauthorized only for license holders without a training endorsement.” A concealed carry license applies only to concealed carry, not open carry. See Miss. Code Ann. § 45-9-101(14)(“The licensing requirements of this section do not apply to the carrying by any person of a stun gun, pistol or revolver, knife, or other deadly weapon that is not concealed as defined in Section 97-37-1.”). The Legislature has specifically restricted the signage used for subsection 101(13) locations to regular concealed license holders, and this provision has no application to open carry. Moreover, as noted, the signage authority under Section 45-9-101(13) may be used to prohibit “the carrying of a ... concealed pistol or revolver ... by the placing of a written notice ...” Sections 45-9-101(13) and 45-9-53(4)(a) are clear, at least on this point, that they apply only to concealed weapons. Thus, the Sheriff has no authority to post signs regarding open carry in the courthouse. As previously noted, counties have no authority to regulate, independently of state law, firearm possession in courthouses. Accordingly, the answer to question number 2 is no. This negative response makes question number 2(a) moot.

*7 Your opinion cites to this office's opinion in MS AG Op. Lance (June 13, 2013). In the Lance Opinion, we note the following general proposition regarding control over public property:

*7 After citing various general propositions regarding the authority of sheriffs within this State, we further opined:

*7 MS AG Op. Lance (June 13, 2013). At the time that Lance was issued, this office assumed that the Legislature would intend this authority to be available to a sheriff or other public official charged with responsibility over a public building. At the time of Lance's issuance, counties and municipalities had full authority under Section 45-9-101(13) to use the catchall provisions of this subsection to post signs prohibiting all concealed weapons at any building owned or controlled by a county or municipality.

*7 Moreover, numerous federal court decisions had recognized that under federal law governmental proprietors of property were justified in restricting firearm possession on governmental property. The Fourth Circuit set forth the rationale as follows:

*8 U.S. v. Masciandaro, 638 F.3d 458, 473 (4^th Cir. 2011). A recent case from the Northern District of Georgia concluded that the Corps of Engineers could essentially ban guns on its recreational property by prohibiting loaded guns or ammunition. GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Engineers, 2014 WL 4059375, 2 (N.D. Ga. Aug. 18, 2014). In GeorgiaCarry.Org, Inc., the Court noted that the Supreme Court has “long held the view that there is a crucial difference, with respect to constitutional analysis, between the government exercising ‘the power to regulate or license, as a lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operation.”D’ Id. (citing Engquist v.Oregon Dept. of Agr., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)) (alterations in original); Nordyke v. King, 681 F.3d 1041, 1044 (9th Cir.2012). (Upholding a law that stated “[e]very person who brings onto or possesses on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.”); United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir.2011) (upholding restrictions on firearms in national parks based, in part, on the rule that “[t]he government ... is invested with ‘plenary power’ to protect the public from danger on federal lands under the Property Clause”).

*8 When Lance was issued, we believe that we reasonably relied on these general notions of property owners and the governmental interest relating to safety in public buildings and on public property to conclude that a sheriff had authority to restrict open or concealed carry into a courthouse. We, however, now believe that the Legislature has rejected our reasoning in Lance. We conclude this based on several factors. First, H.B. 314 expressly removed from counties or municipalities the authority to post signs preventing carrying of weapons by enhanced license holders into courthouses. In so doing, the Legislature expressly stated that a sign at a courthouse (a place listed in Section 45-9-101(13)) must state that “carrying a firearm is unauthorized only for license holders without a training endorsement.” Such a sign would not apply to enhanced concealed license holders or to open carriers. Likewise, the Legislature removed the “catchall” provision from the purview of counties and municipalities, which evidences a clear intent to limit the authority of these local governmental entities. Moreover, the Legislature authorized suits against counties and municipalities and individual damages awards against elected officials who violated either the restrictions on posting signs or enacting or failing to rescind ordinances that violate the law. The limitations placed on ordinances in Section 45-9-53(1)(f) clearly exclude courthouses from inclusion in a local ordinance.

*9 For these reasons, we are now of the opinion that the Legislature has foreclosed any avenue under which this office could opine that a sheriff has any authority under existing State law to prevent open carry of weapons into courthouses. With regard to courthouses, the sole authority for a county or sheriff is to limit concealed license holders without a training endorsement under the provisions of Section 45-9-101(13) as limited by Section 45-9-53(4)(a). To the extent that MS AG Op. Lance (June 13, 2013) is inconsistent with this opinion, it is modified and/or withdrawn.