Thursday, March 10, 2011

Open Carry and preemption court fight in Lansing

I'm going to start out with this. I am a 2nd Amendment absolutist when it comes to firearms laws. I support open carry as well from a RIGHTS standpoint - as in government shouldn't ban it. On the same note, we need to be smart and look at reality when it comes to public opinion on firearms and make sure our tactics are sound. Be smart.

Public opinion with gun laws is generally this. 25-30% are die hard pro-2nd Amendment supporters. They are on our side no matter what. 10-20% are die hard antis no matter what. 50-65% slightly lean one way or the other, but it's not a big issue with them. Mostly they don't want the boat rocked. That's why major gun legislation usually does not pass and why we have incremental pieces of gun control repeals.

In other words, when you represent firearms owners, you better make sure you don't piss off the independents.

The most divisive issue right now in the movement is open carry. It's a big one in Michigan, California, and Virginia, along with other places. I support open carry as a rights issue. We do not have the bill of needs. We have the Bill of Rights. If somebody wants to open carry, I personally have no problem with it despite my own choice not to open carry (I prefer concealed). I don't care if someone has no "so called need" to open carry. That's not my judgment call to make.

Open carry is legal in Michigan. Anyone who legally owns a firearm and passes the Federal NICS check or Michigan's pistol background check can carry openly in Michigan. It is legal. There is no law against it, only brandishing.

A different law on firearms is the preemption act. That's to avoid a patchwork of gun laws in Michigan so that one isn't unknowingly breaking the law, which is quite easy to do. The preemption act passed in 1990. Public Act 319 of 1990

In short, public act 319 disallows in most cases a "local unit of government" from being more stringent than state law. The statute defines “Local unit of government” means a city, village, township, or county. That's a big issue right now with open carry issue, because it's now in the news.

From The Lansing State Journal

A court order that bars people from openly carrying a firearm onto Capital Area District Library property will stand until at least June.

Ingham County Circuit Judge Rosemarie Aquilina on Tuesday broadened a Feb. 16 ruling to now keep anyone from openly toting firearms on the library's grounds. Her previous restraining order had applied only to members of Michigan Open Carry or associated people.

"I wish I could say that you could all carry weapons wherever you wanted, but I can't say that," Aquilina said during a hearing attended by gun rights advocates and library officials. "I do believe the library can regulate whether weapons come in or don't come in the library."

Library officials requested an injunction to bar people from openly carrying firearms on the premises in February, after four incidents since December where people believed to be members of Michigan Open Carry brought firearms into the building.

Aquilina said because the library is an "authority," it does not fall within a jurisdiction - city, township, village or county - where state law requires open carry to be allowed. She set a June 6-7 evidentiary hearing to more thoroughly go through evidence and make a declarative ruling on the issue.

I don't agree with the rules and have a lot of procedural concerns with it as the individual who caused the clustermuck by all accounts was not a member of Michigan Open Carry (and was not allowed to join). That's a side issue though that can be sorted out at the next hearing.

Now other statutes, including Michigan Constitution has "authorities" as local units of government. Both sides agree that the library is an "authority." The preemption statute does not specifically say authorities are local units of government, but other statutes do. While Michigan Open Carry had a great argument in their brief, there was just enough room for interpretation. We now have a court fight.

What's the point besides rights issues? Don't be a dumbass. Don't be a test case when you don't have to be one. That's the point. This whole fight, and the definition of what constitutes "local unit of government" in statute, was avoidable. While we as gun owners may win in the end, we did not have to put ourselves in a position to lose when we don't have to do so.

Open Carry in of itself isn't the problem. If I carried my pistol, in a side holster, exposed for all to see, it probably would not get much reaction. If I wore brown khakis and a button down shirt like I sometimes do, you'd probably think I was a cop or security.

If I walked in open carrying a shotgun or rifle outside of hunting season in a rural area, I'm going to have a lot of eyes on me and people wondering what the Hell I'm doing. If I saw someone open carrying a long gun, I would have one hand near my concealed gun while I look to get the Hell out of there. An open carry pistol in a holster, no big deal.

The Lansing area isn't known to be a friendly city in the first place to the 2nd Amendment. This is the area that gave us a lot of people who didn't even support the non controversial Vear Bill. Laura Baird, Lynne Martinez, Mike Murphy, Joan Bauer, Lingg Brewer, Virg Bernero, Gretchen Whitmer, and Mark Meadows have long records opposing firearms rights in the state legislature. All represented either Lansing, East Lansing, or both. Stuart Dunnings and Gene Wriggelsworth are two of the most anti 2a prosecutors and sheriffs in the state. It is what it is when it comes to that area.

So what caused this fight? An individual decided to open carry a shotgun to the Capitol Area District Library in Lansing. This alarmed people, and he was asked to leave. Others open carried there afterward and the CADL pushed for an injunction banning open carry there and got it. The judge considered "authorities" which the library is, not to be a unit of local government as it pertains to the preemption act. There will be another hearing on this in the future.

In my opinion (not a legal sense or political one), the individual open carried a shotgun there in the same way we have Jerry Springer shows. Shock value intended to inflame people, be in your face, and draw attention. It does not help the firearms movement. It is a bad tactic. While gun control is viewed as a big loser of an issue these days, our rights were in extreme danger of major bans back in 1999 and 2000 under Clinton/Gore, and no CPLs. I remember those days well. While open carry is legal, it won't be if this crap continues to happen. As gun owners, we need to exercise our rights, and do so in a responsible way. I doubt a pistol in a holster would garner the same reaction as a OCed shotgun. This created a bad test case which gave the antis an opening.

What's my biggest concern with this besides more gun control in general? Authorities cover a lot of aspects of local government. If the final decision in this is adverse, this can be expanded to a lot of other areas, most concerning to me being parking lots, and hence carrying in your car in those areas. This can be real bad news for us if the decision stands and holds up on appeals.

At best, this is going to cost a lot of money to defend. For those who don't like open carry, keep in mind that this case affects concealed carry and all gun control, as the challenge affects the preemption act, not specifically limited to open carry. While we as gun owners may not like what caused the fight and not want to be a part of it, the legal issues affect all of us, even those who do not open carry.

Stay tuned. This story isn't going away anytime soon. They'll be another hearing on this, and one side is going to appeal this no matter what happens.

1 comment:

Jeffery said...

While, I agree with most of your comments; I would like to shed a little light on what drove the individual to do what he did at the CADL main branch.
It was a bad idea, but remember he is a 19 yr. old as I understand it, hence the poor judgment call. Why carry the long gun?
He was frustrated with Lansing PD. They have illegally refused to issue him a pistol purchase permit, hence leaving his choice of firearms for protection very limited. Why would LPD do this? Simple, the youngster spoke ill of them in a news report in regards to their lack of knowledge when it came to the law & OC. So they showed him, they have sat on his pistol purchase permit request for over a year now saying "it's still under review".
This is PC speak for you made us look bad, so we'll show you kid! Ha take that you little punk.
Now remember, you have a law enforcement agency breaking/bending the law because they don't like a citizen who otherwise meets the requirements to obtain a pistol permit. Sadly this happens because there are no teeth in the law to force a local Police Department to issue.
In fact they can just stall to infinity under the current structure of the law in MI. Oh and you can only obtain a pistol purchase permit from your local Police Agency, so if they don't like you even though you qualify under the law, YOU ARE SCREWED PERIOD!
While his actions were in poor judgment, I believe all law abiding citizens should have the right to defend themselves with the best tool they have available to them, in this case thanks to LPD being ASSHATS it was a shotgun so who really deserves our venom here? I think there are plenty in authority who have managed so far to keep the other side of the story from getting to the public.
A law abiding citizen who believes the law should apply to all, even those charged with upholding it, but I guess that's too much to ask of LPD, Virg Benero, or any of the other flunkies in Lansing city government.