The controversy seems to center around what public areas the federal government has “federalized.” The argument that bans all weapons on federal lands is not correct in that weapons can be carried through national parks under regulation so the federal goverment restriction appears to be a “use” issue rather than a boundary issue.
Where concurrent jurisdiction exists between state and federal for unrestricted access, i.e. a highway through a national park, I think there is a strong argument that the feds cannot abrogate state law. As such the public areas of a post office must be considered open for general public access and hence federal property restrictions would only apply where access is restricted, i.e. not open to the gerneral public. The line blurs for example in a building where the Justice Department and private businesses both reside. Is the lobby restricted?…, hallways?… elevator?…
The matter has yet to be decided by a court as to the full application of the statute and CFR’s. Remember, it took until 2008 for the supreme court to explicitly recognize an individual right to bear arms even though such right existed in fact prior. The feds will extend the reach of federal intervention as far as the courts will let them, so it is just to say the “constitutionality” of any such provision is the real crux of the debate.
The pendulum, appears to be swinging now in favor of individual liberty (about time!) given the recent groundswell of opposition by federal judges to interrogation tactics, secret wiretaps, and detention in violation of due process, so some federal judges may be ripe to opine on the side of the public. Add to that that CFR’s, unlike statutes, are not promulgated by the legislature; they are instead purely executive orders simply given the standing of law by incorporation and hence, have no legislative input. Such an abscence of checks and balances often prompts the judicial branch to intercede where the legislative is excluded by design.
All interested in this issue should mark well any judicial opinions of federal courts either acknowledging or abrogating application of the statute; and if you hear of any, please let the rest of us know. Any statute testers out there willing to openly tote in a Post Office, get arrested, and give us some clarity?… )I suspect there is no line forming for that job…)
June 9, 2008
Question about concealed carry in a Post Office
Recently I’ve been asked about carrying a firearm into a Post Office. Most people think this is illegal because most Postal facilities have a “No Guns Allowed” sign on the front entrance. I did some research on this, and found that it is in fact, NOT illegal to carry a firearm into a Post Office as long as certain conditions are met.
The statute in questions is 18 U.S.C. 930 – Possession of firearms and dangerous weapons in Federal Facilities.
(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.
However, if we look further down to the exceptions under (d), we find:
(d) Subsection (a) shall not apply to—
(1) the lawful performance of official duties by an officer, agent, or employee of the United States, a State, or a political subdivision thereof, who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of law;
(2) the possession of a firearm or other dangerous weapon by a Federal official or a member of the Armed Forces if such possession is authorized by law; or
(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.
As you can see in (d)(3), it is lawful to carry a firearm into a Federal facility incident to hunting or “other lawful purposes.” Just what are “other lawful purposes” though? If you carry a gun into a Federal facility with the intent to commit a crime therein, then it would seem pretty obvious that you are not engaged in “lawful purposes.” However, if you carry a concealed weapon, with a valid concealed weapons permit, and you are not intending to commit any crimes therein, you should be well within the meaning of “lawful purposes.”
This does not mean that you won’t be harassed or even arrested for carrying a concealed weapon or other dangerous weapon in a Post Office. We often tell people that law enforcement can do anything they want until you can have a Judge tell them they can’t. Some law enforcement officers do not know the full scope of where citizens can legally carry firearms, and thus it leaves room for error.
This “lawful purpose” exception does not apply to Federal Court facilities though and you are prohibited from carrying there, even with a valid permit.
18 U.S.C. 930(g)(3) – The term “Federal court facility” means the courtroom, judges’ chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, offices of the court clerks, the United States attorney, and the United States marshal, probation and parole offices, and adjoining corridors of any court of the United States.
May 30, 2008
Where may one not legally carry a firearm?
Last Friday on Kim Wade’s show, we were asked where people are not allowed to carry concealed firearms. Section 45-9-101 of the Mississippi Code specifies the places that are off-limits.
1. Any place of Nuisance (“Nuisance” shall mean any place as above defined in or upon which lewdness, assignation or prostitution is conducted, permitted, continued or exists or any other place as above defined in or upon which a controlled substance as defined in Section 41-29-105, Mississippi Code of 1972, is unlawfully used, possessed, sold or delivered and the personal property and contents used in conducting or maintaining any such place for any such purpose. One single act of unlawful cohabitation, lewdness or possession, use, sale or delivery of a controlled substance about such property shall not come within the terms hereof.)
2. Any police, sheriff or highway patrol station;
3. Any detention facility, prison or jail;
4. Any courthouse, and any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in his courtroom;
5. Any polling place;
6. Any meeting place of the governing body of any governmental entity;
7. Any meeting of the Legislature or a committee thereof;
8. Any public park unless for the purpose of participating in any authorized firearms-related activity;
9. Any school, college or professional athletic event not related to firearms;
10. Any portion of an establishment, licensed to dispense alcoholic beverages for consumption on the premises, that is primarily devoted to dispensing alcoholic beverages;
11. Any portion of an establishment in which beer or light wine is consumed on the premises, that is primarily devoted to such purpose;
12. Any elementary or secondary school facility;
13. Any junior college, community college, college or university facility unless for the purpose of participating in any authorized firearms-related activity;
14. Inside the passenger terminal of any airport, except that no person shall be prohibited from carrying any legal firearm into the terminal if the firearm is encased for shipment, for purposes of checking such firearm as baggage to be lawfully transported on any aircraft;
15. Any church or other place of worship; or any place where the carrying of firearms is prohibited by federal law.
16. In addition to the places enumerated in this subsection, the carrying of a stun gun, concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity exercising control over the physical location of such place by the placing of a written notice clearly readable at a distance of not less than ten (10) feet that the “carrying of a pistol or revolver is prohibited.”
17. No license issued pursuant to this section shall authorize the participants in a parade or demonstration for which a permit is required to carry a stun gun, concealed pistol or revolver.
May 23, 2008
What is the Castle Doctrine?
The Castle Doctrine was a common-law legal defense that said that a man’s home is his castle. This meant that you had the right to use deadly force in defending your “castle.” However, you were then open to a civil wrongful death suit by the family of the robber that you used deadly force on when he invaded your castle. You also had a duty to retreat if you could safely do so before using deadly force. Even in your own home.
In 2006, the Mississippi Legislature, following Florida’s lead, codified the Castle Doctrine into law. It is Mississippi Statute 97-3-15, and it states in part that:
(1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;
(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1) (e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
(5) (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.
(b) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant acted in accordance with subsection (1) (e) or (f) of this section. A defendant who has previously been adjudicated “not guilty” of any crime by reason of subsection (1) (e) or (f) of this section shall be immune from any civil action for damages arising from same conduct.
The “new” Castle Doctrine law also added civil immunity when you used deadly force within your house or motor vehicle. This means that if you are forced to shoot someone that is breaking in your house, you cannot be then sued civilly by his family. The law also removed the duty to retreat before using deadly force. You no longer have to prove that you retreated, from your own house, before you can lawfully use deadly force in protecting yourself and your family from imminent harm.
Now, it’s not completely clear as to where your “Castle” begins. Obviously, if you are in your house, it most likely applies. But if you see someone walking across your property and they aren’t threatening you in any manner, it probably won’t apply to that.
December 31, 2007
New Law Firm Website
We are pleased to announce the debut of our new law firm Website. The site address has moved! The new site address is www.RobTheLawyer.com. If you miss the attorneys radio show on WJNT 1180 AM on Fridays from 5:00pm to 6:00pm, visit our new site and stream the show anytime. The weekly radio shows will be archived in the streaming media section of our new site. As always, for immediate contact anytime day or night, our 24/7 phone number is (800) 281-1628. Call today! Remember, Knowlege is your best Defense.
