Challenge to Government Building Carry Bans?

[Brass Magnet]

I've been thinking about this whole banning carry in government buildings thing for a while and it seems to me that it wouldn't pass constitutional muster in "non-sensitive" places. "Sensitive Places" is a distinction made in Heller V. D.C. and although it has yet to be defined, I think there are some low hanging fruit to be had here and maybe even most of the tree.

A good example; and good place to start the challenge, would be a public bathroom in a park. When we had the picnic in Baraboo we couldn't go in the bathroom with our firearms. Pavilions, gazebos and other small buildings could be used as well. What about the DMV? I don't think that could qualify as a sensitive place. I can see the courts saying that the legislative chamber could be sensitive, but it would be pretty hard to prove most of the other buildings as sensitive.

I think that going after the government bodies in the court is a good place to start as our rights are specifically protected from them. In Wisconsin we can challenge it on a state level or national level.

Thoughts?

 

[protias]

One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law, yet under Act 35 they supposedly can. They cannot post the buildings without the ordinance either.

 

[Interceptor_Knight]

One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law,.....

I have not found a single lawyer who agrees with this premise that a municipal park ban is more stringent than a State Park ban.
Act 35 does not prohibit an Open Carry ban in City Parks for non-licensees.

 

[protias]

I have not found a single lawyer who agrees with this premise that a municipal park ban is more stringent than a State Park ban.
Act 35 does not prohibit an Open Carry ban in City Parks for non-licensees.

Why would it not be more stringent than state law?

 

[Captain Nemo]

In a court trial half the lawyers are wrong.

 

[BROKENSPROKET]

One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law, yet under Act 35 they supposedly can. They cannot post the buildings without the ordinance either.

They do not need an ordinance to put signs on the entrances.

 

[protias]

They do not need an ordinance to put signs on the entrances.

Please explain.

 

[bnhcomputing]

Outside the home NOT decided

Both the Heller and McDonald cases specifically stated in the home. SCOTUS has never ruled that right exists outside the home. So any challenge will be met with "not outside the home." I don't think a bathroom in a park is the best challenge to get them to include "outside the home."

 

[georg jetson]

Both the Heller and McDonald cases specifically stated in the home. SCOTUS has never ruled that right exists outside the home. So any challenge will be met with "not outside the home." I don't think a bathroom in a park is the best challenge to get them to include "outside the home."

In Heller, "within the home" was used as an example of "traditionally lawful purposes". It was not exclusive to the home.

" 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53." Syllabus here... http://www.law.cornell.edu/supct/html/07-290.ZS.html

The McDonald decision references this, but not to make the point that it is exclusive to "within the home".

 

[paul@paul-fisher.com]

Please explain.

I believe that Mr Sprocket is saying (and I agree) is that technically, non-state entities passing an ordinance that says 'we are posting' is a violation of 66.049, since the state doesn't have an equivalent law. The only 'legal' (as if they care) they can post is to NOT pass an ordinance but make it a policy or some other non-ordinance method.

That just gave me an idea. We need to tell the people that they are violating state law if they do pass an ordinance.

 

[bnhcomputing]

In Heller, "within the home" was used as an example of "traditionally lawful purposes". It was not exclusive to the home.

" 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53." Syllabus here... http://www.law.cornell.edu/supct/html/07-290.ZS.html

The McDonald decision references this, but not to make the point that it is exclusive to "within the home".

Exactly, they used it as an example and it is my contention that the lower courts would take the most narrow interpretation of the decisions stating the court used "in the home" as an example and if they had meant out of the home, they would have used those examples as well. The lower courts won't use a LIBERAL interpretation, not regarding the 2nd anyway, so they will decide because the SCOTUS didn't specify anything outside the home, then outside the home doesn't apply.

 

[Interceptor_Knight]

Why would it not be more stringent than state law?

A Park is a Park... State Park = Municipal Park..

 

[protias]

A Park is a Park... State Park = Municipal Park..

But both are under government bodies. The state is the top, then the counties and cities are under the state. This is what I am not understanding. How can a lower entity be able to ban something the higher entity says they cannot?

 

[Brass Magnet]

Exactly, they used it as an example and it is my contention that the lower courts would take the most narrow interpretation of the decisions stating the court used "in the home" as an example and if they had meant out of the home, they would have used those examples as well. The lower courts won't use a LIBERAL interpretation, not regarding the 2nd anyway, so they will decide because the SCOTUS didn't specify anything outside the home, then outside the home doesn't apply.

I understand your contention; however, I believe the lower courts aren't bound by precedent on this point because there really is none. Heller was special because the 2A had never been clearly established in the courts as an individual right and as you know, the reason it was brought up in D.C. is that they didn't have to worry about incorporation as the BoR directly applies the the federal government. McDonald had to go against clearer, but still cloudy precedent of the slaughterhouse cases and incorporation doctrine. Further, there was a split in the lower courts among similar cases which meant that they disagreed on the precedent.

The lower courts are not supposed to overrule clearly established precedent set by the higher courts, which is why that case in California; in which the lower court incorporated the 2A through the P or I clause, was later reheard en banc. It wasn't because they incorporated it, it was because they didn't use the "due process" clause. In Heller or McDonald there was no precedent set limiting where one can keep and bear arms besides "sensitive places" few of which were defined. This should mean that the lower courts can say we can carry them anywhere besides "sensitive places". The SCOTUS justices even said that the details would have to be flushed out through many more court cases. When the lower courts disagree, or when they decide to here an appeal, it will move up to SCOTUS.

Just because SCOTUS didn't specify anything outside the home doesn't mean the lower courts must rule all other areas off limits until SCOTUS rules otherwise because SCOTUS also didn't limit it to inside the home. They just basically said that RKBA surely, of all places, must be protected inside the home. Your contention is like saying we need a law to tell us we can open carry instead of being able to open carry because there isn't a law. Right?

Edited much later to add: Yes, some courts may take a more narrow interpretation but others won't; just like in the cases I discussed. However; I believe more would take a broad interpretation as there is clearly established precedent that when a right is considered; government power should be interpreted narrowly and the right broadly. (Anyone have that case, I know it's out there but can't remember it)

 

[Brass Magnet]

Case in Point.......

Puerto Rico appellate court: Ex parte Roque Cesar Nido Lanausse

http://volokh.com/2011/05/11/puerto...endment-right-to-carry-guns-in-public-places/

Translation:

http://volokh.com/2011/05/18/the-pu...cond-amendment-right-to-carry-guns-in-public/

Basically, someone applied for a "may issue" license on non-specific grounds that he feared for his safety and it was denied. The decision basically converts Puerto Rico's "may issue" into a "shall issue". Further, the court goes into Scalia’s sensitive places as evidence that some places are not sensitive and therefore there is a right to carry in those places.

 

[IcrewUH60]

In a court trial half the lawyers are wrong.

added to my signature

 

[bnhcomputing]

Although I agree that the law should be liberally applied:

Here is a Maryland Case
http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Brief-05-31-11-105734.pdf

There is also a Connecticut Case, I misplaced the link, and let's not forget the Gonzalez case against West Milwaukee. In every instance the court reiterates "not outside the home."

So although I would LOVE to see the lower courts expand the right, I just don't see Carter, Clinton, and Obama appointees doing that.

We'll just have to let it play out in the courts and hope for the best.

 

[Brass Magnet]

Although I agree that the law should be liberally applied:

Here is a Maryland Case
http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Brief-05-31-11-105734.pdf

There is also a Connecticut Case, I misplaced the link, and let's not forget the Gonzalez case against West Milwaukee. In every instance the court reiterates "not outside the home."

So although I would LOVE to see the lower courts expand the right, I just don't see Carter, Clinton, and Obama appointees doing that.

We'll just have to let it play out in the courts and hope for the best.

The Maryland appeals court decision was levied pre-McDonald. By reading the opinion, it seems that 2A not being incorporated was the major reason for the decision; secondarily that Heller didn't specifically say one had the right to bear arms outside the home.

The Gonzalez case was pre-McDonald as well and was a federal civil rights lawsuit. The 2A didn't really have anything to do with the decision there IIRC, it was Wisconsin's overly vague Disorderly Conduct statute and whether or not the officers had Qualified Immunity. Of course that "justice" had to insert a bunch of bench legislation into it as well.

I'm not saying you are wrong that some courts will choose not to expand the right but these aren't good examples and some courts will expand the right, just like in the Puerto Rico case I cited. All you need is a split among the circuits and I don't think that would be hard to get.

Now, choosing the right circuit might be something that has to be looked into carefully.

 

[Firearms Iinstuctor]

AZ went through all this they banned carry in all goverment building so wayside rest rooms parks ect. They havd to pass several laws to improve the situation.

This is a work in progress we have to keep pushing for full consitional carry.