Questions and Answers

The Privacy Blog of Michael A. Risley, Attorney

Q&A: Can I Constitutional/Open Carry in Oklahoma if I Have a Criminal Record?

On February 27th, 2019, the Oklahoma Legislature and Governor Stitt approved HB2597, which makes Constitutional Carry / Open Carry (hereafter Open Carry) the law of the land in Oklahoma. The bill was approved in a lightning-fast 23 days, and the full and final text of HB2597 can be read here.

What does Open Carry mean for convicted felons and people with criminal records? 

The Short Answer:

If you have a felony, or a violent misdemeanor, you cannot Open Carry without a Governor's Pardon.

HB2597 requires people with felony convictions, or certain misdemeanor convictions, to receive a Governor's Pardon before they are allowed to Open Carry. The prohibited misdemeanors include:

  • Misdemeanor Domestic Assault & Battery - 22 O.S. §644(C) and subsequent 
  • Misdemeanor Stalking - 22 O.S. §1173(A)
  • Misdemeanor Violation of a Victim's Protective Order - 22 O.S. §60.6(A)(1)
  • Misdemeanor Drug Charges - 63 O.S. §2-101 et. seq.

If you have a conviction for a felony or one of the offenses above, then you must get a Governor's Pardon to restore your right to Open Carry, per 21 O.S. §1272(A)(6) and 21 O.S. §1283(B). Get in touch today to speak with an attorney about being able to Open Carry.

The Long Answer:

The "Normal" Rules Still Apply

First, HB2597 does not actually change that much. Normal restrictions on carrying firearms - such as during the commission of a felony, or carrying firearms into certain prohibited buildings, or carrying firearms concealed without a license - have not changed. The new law, codified at 21 O.S. §1272(A)(6), just creates another exception to the otherwise blanket illegality of inappropriate firearm possession: 

A. Notwithstanding any other provision of law, it shall be unlawful for any person to carry upon or about his or her person, or in a purse or other container belonging to the person, any pistol, revolver, shotgun or rifle whether loaded or unloaded or any blackjack, loaded cane, hand chain, metal knuckles, or any other offensive weapon, whether such weapon be concealed or unconcealed, except this section shall not prohibit:    ...

6. The carrying of a firearm, concealed or unconcealed, loaded or unloaded, by a person who is twenty-one (21) years of age or older ... [or who is between 18 and 21 and on active military duty / was honorably discharged] ... and the person is otherwise not disqualified from the possession or purchase of a firearm under state or federal law and is not carrying the firearm in furtherance of a crime. Except as provided in subsection B of Section 1283 of this title, a person who has been convicted of any one of the following offenses in this state or a violation of the equivalent law of another state:

a. assault and battery pursuant to the provisions of Section 644 of this title which caused serious physical injury to the victim,
b. aggravated assault and battery pursuant to the provisions of Section 646 of this title,
c. assault and battery that qualifies as domestic abuse as defined in Section 644 of this title,
d. stalking pursuant to the provisions of Section 1173 of this title,
e. a violation of an order issued under the Protection from Domestic Abuse Act or a domestic abuse protection order issued by another state, or
f. a violation relating to illegal drug use or possession under the provisions of the Uniform Controlled Dangerous Substances Act,

shall be prohibited from carrying a firearm under the provisions of this paragraph. Any person who carries a firearm in the manner provided for in this paragraph shall be prohibited from carrying the firearm into any of the places prohibited in subsection A of Section 1277 of this title or any other place currently prohibited by law. Nothing in this section shall modify or otherwise change where a person may legally carry a firearm.

That's quite a mouthful. 

To unpack the statutory language: the blanket illegality of carrying firearms in inappropriate situations is still the law in Oklahoma.1  However, HB2597 creates an exception to that rule, which will allow you Open Carry if you meet the following requirements:

  • You are 21, or you are between 18 and 21 and are active military / honorably discharged;
  • You are not carrying the firearm in furtherance of a crime;
  • You do not have a felony conviction of any kind (i.e. "the person is otherwise not disqualified from possession...under state law", see 21 O.S. §1283(A));
  • You also do not have a felony or misdemeanor conviction for one of the enumerated crimes: Aggravated A&B, Domestic A&B, Stalking, Violation of a VPO, or a CDS crime;
  • You are not otherwise prohibited from carrying a firearm (example: if your deferred sentence probation requires you to not have a firearm, you cannot Open Carry)

The Fix: Get a Governor's Pardon (but an Expungement will not help)

If you have a criminal record, with either a felony conviction or a misdemeanor conviction for one of the crimes shown above, then the only fix is to be pardoned by the Governor. You'll notice the reference in HB2597 to "subsection B of Section 1283 of this title (Title 21)", which is buried in the middle of the criminal prohibition provision - that law allows for the restoration of a persons 2nd Amendment rights, after they have received a Governor's Pardon.

Sadly, at this point, an expungement does not appear to restore your right to Open Carry. Reading the plain language of the statute, if the Legislature had intended the result, they would have included a reference to the expungement laws at 22 O.S. 18 & 19. Paragraph 6 would state:

6. The carrying of a firearm, concealed or unconcealed, loaded or unloaded, by a person who is twenty-one (21) years of age or older ... and the person is otherwise not disqualified from the possession or purchase of a firearm under state or federal law and is not carrying the firearm in furtherance of a crime. Except as provided in subsection B of Section 1283 of this title, or Section 18 and 19 of Title 22, a person who has been convicted of any one of the following offenses in this state or a violation of the equivalent law of another state:  ... shall be prohibited from carrying a firearm under the provisions of this paragraph.

That language was not included, and so, we have to assume that the Legislature didn't want it there. 

Have questions, or want to get started on your Governor's Pardon? Give us a call at 405.801.2116 or get in touch with us today, and we'd be happy to help.

Thanks for reading,
Michael


Footnote:

1. Yes, that is not a very useful distinction. Providing more detail on this item is way outside of the scope of this article - you would have to write a book to describe every situation in which a gun may or may not be illegal. Consult your local authorities, or take a gun safety / open carry / concealed carry class to learn more.


Michael Risley | Tuesday, March 12, 2019 | Go Back