Junction City v. Lee, 47580

Decision Date01 March 1975
Docket NumberNo. 47580,47580
Citation216 Kan. 495,532 P.2d 1292
PartiesJUNCTION CITY, Appellant, v. Vernon LEE, Appellee.
CourtKansas Supreme Court
Syllabus by the Court

1. The provision in section 4 of the Kansas bill of rights that 'the people have the right to bear arms for their defense and security' refers to the people as a collective body. It is not a limitation on legislative power to enact laws prohibiting the promiscuous carrying of arms or other deadly weapons.

2. By virtue of the home rule provision of the Kansas constitution, article 12, section 5, cities are not dependent upon the state legislature for their authority to determine their local affairs and governments. They have power granted directly from the people through the constitution without statutory authorization. The home rule power of cities is subject to optional control by legislative action in certain areas. Section 5(d) of the article requires a liberal construction of the powers and authority granted cities for the purpose of giving cities the largest measure of self-government and home rule power of cities is favored and should be upheld unless there is sound reason to deny it.

3. Under home rule legislative silence on a subject no longer means absence of a city's authority to act in that area by ordinance.

4. Weapons control is in area of cities' concern.

5. That an area of local concern is of concurrent state concern is no impediment to the exercise of authority by a city so long as the city's ordinance is subject to state legislation.

6. Whether a city ordinance is 'subject to' state legislation within the meaning of the home rule amendment depends upon whether the language or terms of the ordinance conflict with those of the statute and whether the legislature has by legislation preempted the particular field.

7. A test frequently used to determine whether conflict in terms exists between an ordinance and a state statute is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict. Where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict.

8. The fact the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject.

9. Legislative intent to reserve to the state exclusive jurisdiction to regulate must be clearly manifested by statute before it can be held that the state has withdrawn from the cities power to regulate in the area.

10. Defendant was convicted in municipal court for violation of a city ordinance prohibiting certain use of handguns and knives. The pertinent parts of the ordinance are more restrictive than those contained in the state weapons control act (K.S.A. 21-4201 et seq.). Upon defendant's appeal the district court dismissed the proceeding. Upon the city's appeal to this court it is held: (1) The ordinance is not in conflict with the Kansas constitutional right to bear arms; (2) its terms do not conflict with the state weapons control act; and (3) state legislation has not occupied the particular area of weapons control to the exclusion of regulation by the cities.

William D. Clement, Junction City, argued the cause and was on the brief for appellant.

Roger D. Thompson, Junction City, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

Vernon Lee was convicted in municipal court for violation of an ordinance of the city of Junction City prohibiting certain use of handguns and knives. Upon his appeal to the district court the proceeding was there dismissed for the reason the municipal ordinance conflicted with state statutes and further that the state had preempted the field of weapons control. The city has appealed.

The factual background of the matter is that on January 26, 1974, at 11:20 p. m. while checking a used car lot in Junction City two police officers observed defendant and another person duck behind a car on the last row of cars on the lot. The rear of the lot was not well lighted. Approaching the position where defendant was last seen, the officers discovered him and saw he had on him a hip style holster containing a .36 caliber ball and cap loaded revolver and a scabbard attached to his belt containing a knife with a blade nine and one half inches in length. Defendant was carrying a star type lug wrench in his hand. Neither defendant nor his companion was in any way associated with the used car lot and the lot was not open for business at the time. Defendant was arrested and charged with carrying deadly weapons (the knife and pistol) contrary to city ordinance. At the trial in municipal court defendant testified he had just been out 'plinking' around but that he had told the officers he and his companion had been rabbit hunting because at the time he believed that explanation was more appropriate; he further explained he and his companion ducked down when they saw the unmarked police car enter the premises because some associates of his companion had earlier threatened him. Defendant was found guilty in municipal court and sentenced to ninety days confinement.

In district court defendant filed a motion to dismiss the action on five grounds. The first two grounds were not ruled upon by the trial court, they are not here asserted by defendant in support of the trial court's order and they need not be further considered. The other three grounds in the motion were that the ordinance violates the federal and state constitutional rights to bear arms, it violates the home rule amendment to the state constitution and the state has preempted the field of weapons control.

The trial court announced its ruling orally. After stating some kind of inherent right to bear arms and a legislative limitation thereon, the court said:

'Has the city statute further enjoined the use of firearms over and above what the state has done? My answer has to be yes, in abolishing any guilty mind and, second, in abolishing the distinction between a concealed weapon and an unconcealed weapon. For that reason, the Court is goint to find that the ordinance-that the state has pre-empted the law on weapons control and that the city ordinance is in contravention of the meaning of the state statute and therefore must fail.'

The first point on appeal may be quickly disposed of. Defendant urges in support of the trial court's ruling that the ordinance conflicts with the Kansas constitutional right to bear arms (§ 4, BR). He acknowledges now that the federal constitution does not guarantee the absolute right of an individual to carry a gun (United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206; Eckert v. City of Philadelphia, Pa., 3 Cir., 477 F.2d 610) but argues our state constitutional guaranty is worded sufficiently different from the federal that that right should be afforded under it. We have long since laid the matter to rest. In Salina v. Blaksley, 72 Kan. 230, 83 P. 619, it was stated:

'The provision in section 4 of the Bill of Rights 'that the people have the right to bear arms for their defense and security' refers to the people as a collective body'. (p. 231, 83 P. p. 620.)

The court further held that the constitutional guaranty is 'a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia, or any other military organization provided for by law, but is not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons'. (Syl.) The foregoing principles were cited approvingly in State v. Bolin, 200 Kan. 369, 436 P.2d 978. We adhere to them. (The interested reader may find in Moore v. Shanahan, 207 Kan. 645, 663, 486 P.2d 506, discussion of the manner in which the people, as members of the militia, exercise the right to bear arms.) As will be seen later in looking at the ordinance, it does not obstruct the right of the militia or other military organizations to bear arms for the safety and security of society. Specifically exempted from its operation are members of the armed forces, reserves and national guard in the performance of their duties.

Defendant's contention in its motion to dismiss, reasserted here, that the ordinance violates the home rule amendment is premised on the assertions the ordinance conflicts with statutory law and that the latter has preempted the area in which the city has sought to operate.

In Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130, we held that by virtue of the home rule provision of the Kansas constitution, article 12, section 5, cites are not dependent upon the state legislature for their authority to determine their local affairs and government; they have power granted directly from the people through the constitution without statutory authorization; the home rule power of cities is subject to optional control by legislative action in certain areas; section 5(d) of the article requires a liberal construction of the powers and authority granted cities for the purpose of giving cities the largest measure of self-government; and finally, that home rule power of cities is favored and should be upheld unless there is sound reason to deny it. (Syl. 1, 2, 3 & 4.)

The significant part of the home rule amendment for present purposes is:

'Cities are hereby empowered to determine their local affairs and government . . . by ordinance passed by the governing body . . . subject only to enactments of the legislature . . . applicable uniformly to all cities . . ..' (Art. 12, § 5(b).)

The amendment became effective July 1, 1961. Its big impact is that legislative silence on a subject no longer...

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35 cases
  • State v. Foster
    • United States
    • Kansas Court of Appeals
    • 11 Junio 2021
    ...supported the government's ability to regulate the possession of firearms under the original section 4. See City of Junction City v. Lee , 216 Kan. 495, 497-98, 532 P.2d 1292 (1975) (not violation of section 4 of Kansas Constitution Bill of Rights for city to adopt ordinance more restrictiv......
  • State v. Jenkins
    • United States
    • Kansas Supreme Court
    • 7 Septiembre 2012
    ...of similarly conflicting state and municipal laws, and a review of those decisions provides guidance. In City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975), the defendant was convicted in municipal court of violating a Junction City ordinance that prohibited carrying a dangero......
  • 82 Hawai'i 143, State v. Mendoza
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    • 21 Junio 1996
    ...Metheney, 182 W.Va. 722, 391 S.E.2d 635, 638 (1990); State v. McAdams, 714 P.2d 1236, 1237-38 (Wyo.1986). Contra Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292, 1295 (1975) (citing Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 620 (1905)); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 8......
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    ...by a clear statement in the law. See, e.g., City of Junction City v. Griffin, 227 Kan. 332, 336, 607 P.2d 459 (1980); City of Junction City v. Lee, 216 Kan. 495, Syl. ¶ 9, 532 P.2d 1292 (1975) (legislative intent to reserve to the state exclusive jurisdiction to regulate must be clearly man......
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3 books & journal articles
  • Home Rule: a Primer
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    • Kansas Bar Association KBA Bar Journal No. 74-1, January 2005
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    • Kansas Bar Association KBA Bar Journal No. 89-6, August 2020
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