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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6406

December 10, 1986

CONCEALED WEAPONS:

FISH AND GAME:

License to carry handgun for hunting of deer

Deer hunting with handguns

The Legislature has provided that a hunter in possession of a valid Michigan hunting permit may carry a handgun for the purpose of hunting deer in region 3, but may not carry the handgun under a coat or otherwise concealed in order to protect the weapon from bad weather unless the hunter possesses a concealed weapons license.

If the hunter possesses a concealed weapons license which is restricted to hunting, the hunter may carry the weapon under a coat or otherwise concealed and protected from bad weather, but only while hunting and only when in possession of both a valid Michigan hunting license and a concealed weapons license.

A hunter possessing a valid Michigan hunting license may transport a handgun to or from the hunting area in region 3 in a motor vehicle, provided that the hunter is en route to or from the hunting area and the handgun is unloaded, is in a wrapper or container, and is locked in the trunk of the motor vehicle. If the vehicle has no trunk, the hunter may carry the unloaded handgun in a wrapper or container in an area of the motor vehicle not readily accessible to the occupants of the vehicle. In the event the hunter has obtained a concealed weapons license which is restricted to hunting, the hunter may likewise transport the handgun in the vehicle to and from the hunting area but is subject to these same restrictions.

Honorable Doug Carl

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion concerning the application of the statute prohibiting the carrying of concealed weapons, MCL 750.227; MSA 28.424, to hunters who intend to transport and carry handguns in order to hunt deer. Your question may be stated as follows:

May a person, for the purpose of using a handgun to hunt deer: (1) transport an unloaded handgun to and from the hunting area in the trunk of a car or in the back of a truck, and (2) carry the handgun under a coat or otherwise concealed in order to protect it from bad weather?

Your question deals with two distinct groups of deer hunters: (1) those who do not possess a concealed weapons license, and (2) those who do possess a concealed weapons license where the license is restricted to hunting.

The Game Law of 1929, Sec. 10(1)(d); MCL 312.10(1)(d); MSA 13.1339(1)(d), has for many years prohibited hunters during the deer season in region 3 (essentially the southern portion of the lower peninsula) from utilizing any firearm other than "a shotgun, flintlock, or percussion cap muzzle-loading rifle .44 caliber or larger loaded with black powder and patched round ball." This provision was amended by 1985 PA 182, effective March 31, 1986, and now permits the use of muzzle-loading handguns as well as certain repeating pistols or revolvers during the deer season in region 3:

"pursuant to safety regulations issued by the department of natural resources as to the allowable size and caliber of handguns to be used in region 3, skill level of the hunter using a handgun in region 3, and such other safety requirements as the department deems appropriate and relevant to region 3...."

On March 18, 1986, the Director of the Department of Natural Resources issued an order restricting the type of handguns which may be used in hunting deer in region 3 to the following:

"Repeating centerfire pistol or revolver loaded with straight walled cartridges, .35 caliber or larger, with a maximum of 9 shot capacity of barrel and magazine, or a repeating black powder revolver .44 caliber or larger."

In addition, the order requires that:

"Those born on or after January 1, 1960 must have in possession a certificate of successful completion of a hunter safety course issued by this state, another state, or another country."

By its express terms, MCL 312.10(1)(d); MSA 13.1339(1)(d), as amended, and as implemented by the March 18, 1986 director's order, merely removes the previous statutory prohibition on the use of handguns by hunters during the deer season in region 3, subject to the restrictions set forth in the statute and the director's order. The statute does not purport to exempt such hunters from complying with the various Michigan statutes which strictly control the purchase, transportation, and use of handguns within this state. It is a well established principle that where two or more separate statutes as are in pari materia, addressing essentially the same subject matter, those statutes must be read together and full effect must be given to each statute if such can be done without repugnancy, absurdity, or unreasonableness. Rochester Community Schools Board of Education v State Board of Education, 104 Mich App 569; 305 NW2d 541 (1981). It follows, therefore, that hunters intending to utilize handguns pursuant to MCL 312.10(1)(d); MSA 13.1339(1)(d), as amended, must strictly comply with the concealed weapons statute, MCL 750.227; MSA 28.424, and with the various other state statutes governing the purchase, use, and possession of handguns.

In MCL 750.227; MSA 28.424, as last amended by 1986 PA 8, the Legislature has provided in pertinent part:

"(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

"(3) A person who violates this action is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00."

The term "pistol", as used in this section, is defined in MCL 750.222; MSA 28.419, as follows:

"(a) 'Pistol' means a firearm, loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a firearm."

See also, MCL 28.421(a); MSA 28.91(a).

MCL 750.231a; MSA 28.428(1), provides certain limited exceptions to the prohibitions set forth in MCL 750.227; MSA 28.424, including the following:

"(1) Section 227 [MCL 750.227; MSA 28.424] does not apply to any of the following:

"....

"(d) To a person while carrying a pistol unloaded in a wrapper or container in the trunk of the person's vehicle, while in possession of a valid Michigan hunting license or proof of valid membership in an organization having pistol shooting range facilities, and while en route to or from a hunting or target shooting area.

"....

"(f) To a person while carrying an unloaded pistol in the passenger compartment of a vehicle which does not have a trunk, if the person is otherwise complying with requirements of subdivision (d) ... and the wrapper or container is not readily accessible to the occupants of the vehicle."

MCL 750.227; MSA 28.424, was construed by the Court of Appeals in People v Bailey, 10 Mich App 636, 639, 640; 160 NW2d 380 (1968). The court commented as follows on the legislative intent of this provision:

"The basic intent of the legislature as indicated in the concealed weapon statute was that weapons should not be carried where they might be used to take lives. Courts should look for a reasonable rather than tortured interpretations of statutes, or exceptions thereto, so as to reflect the intent of the legislature. Sergeant v. Kennedy (1958), 352 Mich 494."

The application of these provisions to hunters who have not obtained a concealed weapons license is considered first.

MCL 750.227(2); MSA 28.424(2), prohibits a person from carrying a pistol "concealed on or about his or her person ... without a license to carry the pistol as provided by law...." Thus, assuming a hunter has not obtained a license to carry a concealed weapon, he or she may carry the pistol while hunting only if the weapon is not concealed and is at all times kept in plain view. Carrying a pistol in a holster belt, in plain view on the outside of the hunter's clothing, is permissible, even without a concealed weapons license, and does not constitute the carrying of a concealed weapon. OAG, 1926-1928, p 349 (April 22, 1927); OAG, 1945-1946, No O-3158, p 237 (February 14, 1945). A hunter may not, however, carry a pistol under his or her coat or otherwise concealed from view unless he or she is in possession of a valid concealed weapons license, even though the sole motive for such concealment may be to protect the weapon from bad weather. To do so would constitute a violation of MCL 750.227(2); MSA 28.424(2), and would, thus, be punishable as a felony.

With respect to the transportation of the pistol in a motor vehicle, MCL 750.227(2); MSA 28.424(2), prohibits a person from carrying a pistol "whether concealed or otherwise, in a vehicle operated or occupied by the person ... without a license to carry the pistol as provided by law...." However, as is noted above, MCL 750.231a(1)(d) and (f); MSA 28.428(1)(1)(d) and (f), creates a limited exception to this prohibition, permitting a person to transport a pistol in a vehicle without first obtaining a concealed weapons license provided that: (1) the pistol is unloaded, is in a wrapper or container, and is locked in the trunk of the vehicle or, if the vehicle has no trunk, the wrapper or container is not readily accessible to the occupants of the vehicle; and (2) the person is in possession of a valid Michigan hunting license; and (3) the person is en route to or from a hunting area.

This limited exception is consistent with the Hunting and Fishing License Act, Sec. 205; MCL 316.205; MSA 13.1350(205), which provides:

"A person may carry, transport, or possess a firearm or a bow and arrow without a hunting license while at or going to and from a recognized rifle or target range, trap or skeet shooting ground, or archer range if the firearm or bow and arrow, while being carried or transported, is enclosed and securely fastened in a case or locked in a trunk of a motor vehicle." (Emphasis supplied.)

Thus, a hunter who does not possess a concealed weapons license (1) may carry a handgun while hunting deer provided that the handgun is not concealed and is kept in plain view at all times, and (2) may transport the handgun in a motor vehicle provided that (a) the weapon is unloaded, in a wrapper or container, and is locked in the trunk or is otherwise not readily accessible to the occupants of the vehicle, (b) the hunter is in possession of a valid Michigan hunting license, and (c) the hunter is en route to or from a hunting area.

You have also inquired as to the application of the concealed weapons laws to deer hunters who have obtained a concealed weapons license where the license is restricted to hunting.

The issuance of a license to carry a concealed weapon is governed by MCL 28.421 et seq; MSA 28.91 et seq. MCL 28.426(1); MSA 28.93(1), provides, in pertinent part:

"The prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person and to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the applicant.... A license shall not be issued unless it appears that the applicant has good reason to fear injury to his or her person or property, or has other proper reasons, and is a suitable person to be licensed."

A person seeking a concealed weapons license solely for the purpose of hunting would not ordinarily have "good reason to fear injury to his or her person or property." Nevertheless, it is within the discretion of a county concealed weapons licensing board to conclude that hunting falls within the statutory language of "other proper reasons" and to issue a permit restricted to such a purpose. 2 OAG, 1956, No 2648, p 480 (August 15, 1956). This restriction is significant. MCL 28.426(5); MSA 28.93(5), provides:

"The application for a license shall state the reason or reasons for the necessity or desirability of carrying a pistol concealed on the person or a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the person applying for the license, and the license, if issued, shall be restricted to the reason or reasons satisfactory to the board, which restriction or restrictions shall appear on the face of the license in a conspicuous place. The license shall be an authorization to carry a pistol in compliance with this section only to the extent contained in the face of the license and the license shall be revoked by the board if the pistol is carried contrary to the authorization." (Emphasis added.)

MCL 750.227(2); MSA 28.424(2), moreover, makes it a felony for a person, even if licensed to carry a concealed weapon, to "carry the pistol in a place or manner inconsistent with any restrictions upon such license."

As is observed above, a hunter who does not possess a concealed weapons license is prohibited from carrying a pistol under his or her coat or concealed in any manner even though the purpose of such concealment may merely be to protect the weapon from bad weather. If the hunter does possess a concealed weapons license, albeit one restricted to hunting, the converse is true: the hunter may carry the handgun concealed on his or her person while actually hunting in order to protect the weapon from the elements. It must be emphasized that a hunter may carry a handgun concealed under his or her coat or hunting jacket in such a fashion only while actually hunting and at no other time and, further, must be in possession of both a valid hunting license and a concealed weapons license. A hunter carrying a pistol concealed on or about his or her person at a time other than while hunting plainly would be carrying that weapon "in a place or manner inconsistent with" the restrictions limiting the license to hunting and would, therefore, be in violation of MCL 750.227(2); MSA 28.424(2).

For similar reasons, it must be concluded that possession of a concealed weapons license restricted to hunting does not authorize a hunter to transport a handgun which is loaded or which is unwrapped or uncased in the passenger compartment of a motor vehicle. To do so would clearly be inconsistent with the restrictions placed upon the license.

The Game Law of 1929, MCL 312.10(1); MSA 13.1339(1), in pertinent part, provides:

"Unless otherwise specified, a person shall not do any of the following:

"(f) Hunt, pursue, worry or kill wild waterfowl or other birds or animals by any means whatever when the person is in or upon any kind of aircraft, automobile, floating device, or other contrivance propelled by, or using as motive power, steam, gas, naphtha, oil, gasoline, or electricity, or when the person is in or upon a sailboat."

An exception is made to this prohibition for parapalegics, amputees or other permanently disabled persons who are unable to walk, provided that these individuals have obtained a special permit. MCL 312.10(5) MSA 13.1339(5).

Inasmuch as MCL 312.10(1)(f); MSA 13.1339(1)(f), generally makes it illegal to hunt from a car, there is no rational justification for concluding that transportation of a loaded, accessible weapon in a motor vehicle is consistent with a concealed weapons license restricted to hunting.

The Legislature has, in MCL 750.231a; MSA 28.428(1), expressly provided for the conditions under which a hunter may transport a handgun in a motor vehicle to a hunting area and has clearly evinced its intent that the transportation of a handgun for the purpose of hunting must be subject to the strict conditions imposed therein. It follows, therefore, that even if a hunter possesses a concealed weapons license restricted to hunting, he or she may lawfully transport a handgun to and from a hunting area in a motor vehicle only in strict compliance with the requirements of MCL 750.231a(1)(d) or (f); MSA 28.428(1)(1)(d) or (f).

It is further noted that, the Director of the Department of Natural Resources has required those hunters born on or after January 1, 1960 to have in their possession a certification of successful completion of a hunter safety course in order to use a handgun for hunting deer in region 3. Hunters planning to use handguns for hunting deer are also reminded that they must secure a license to purchase a pistol, MCL 28.422(1); MSA 28.92, and the pistol must be safety inspected by a local law enforcement official. MCL 28.429; MSA 28.97. Failure to abide by these provisions is a crime. MCL 750.232a; MSA 24.429(1), and MCL 750.228; MSA 28.425.

Based on the foregoing, it is my opinion that the Legislature, in permitting a hunter to carry a handgun for the purpose of hunting deer, also provided that a hunter may not carry that handgun under a coat or otherwise concealed in order to protect the weapon from bad weather unless the hunter possesses a concealed weapons license. It is my further opinion that, if the hunter possesses a concealed weapons license which is restricted to hunting, the hunter may carry the weapon under a coat or otherwise concealed and protected from bad weather, but only while hunting and only when in possession of both a valid Michigan hunting license and a concealed weapons license.

It is my further opinion that a hunter possessing a valid Michigan hunting license may transport a handgun to and from the hunting area in region 3 in a motor vehicle, but only if the hunter is en route to or from the hunting area and the handgun is unloaded, is in a wrapper or container, and is locked in the trunk of the vehicle. If the vehicle has no trunk, the hunter may carry the unloaded handgun in a wrapper or container in an area of the motor vehicle not readily accessible to the occupants of the vehicle. If the hunter has obtained a concealed weapons license which is restricted to hunting, the hunter may likewise transport the handgun in the vehicle but is subject to these same restrictions.

Frank J. Kelley

Attorney General


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