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Thread: Guns in parks during Kaine's Admonistration

  1. #1
    Accomplished Advocate peter nap's Avatar
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    Oct 2007
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    Guns in parks during Kaine's Administration (Emails)

    I'm reviewing the Kaine Administrations emails. Some are real interesting

    From: Rubin, Mark
    Sent time: Thursday, November 13, 2008 6:48:50 PM
    To: Roberts, Larry
    Subject: guns in parks
    Attachments: gun memo.111308.doc
    Please take a look at this. I will put a copy of Phil and Cleland’s memo in your chair. thanks
    Mark E. Rubin
    Senior Advisor to the Governor
    Patrick Henry Building
    1111 E. Broad Street
    Richmond, Va. 23219
    To: Governor Kaine
    From: Mark Rubin
    Re: Guns in Parks
    Date: November 14, 2008
    In response to a request from Senator Cuccinelli, the Attorney General has issued
    an official advisory opinion on the issue of the open carrying of guns in state parks.
    The opinion states that the Department of Conservation and Recreation “has only
    such authority to restrict the open carrying of firearms which is expressly provided by
    law”. The AG further states that he found no authority, express or implied, to restrict
    such conduct other than Section 18.2-287.4. This statute restricts the carrying of certain
    loaded firearms in public areas in specified cities and counties.
    Based on this opinion, Senator Cuccinelli is asking that the current DCR
    regulation be removed from the Administrative Code. In addition, a rulemaking petition
    has been received seeking a similar end to the current regulation banning open and
    concealed carrying of weapons in state forests.
    The question you have raised is whether there is a credible legal argument to
    support the existing regulation. I am attaching a memorandum written by two of our legal
    fellows for a full discussion of such an argument.
    There are three different AG opinions on the subject of guns in state parks. The
    2001 opinion upheld a regulation prohibiting any firearms in state parks citing the
    Department’s implicit authority to promulgate regulations related to safety. The 2002
    opinion effectively nullified the ban on firearms as to concealed weapons but again
    upheld the Department’s implicit authority to govern recreational activities in state parks,
    “including regulations related to safety”.
    In a confidential discussion with a knowledgeable assistant attorney general, I
    asked what changed between 2002 and now. The answer was that the Supreme Court
    ruling in District of Columbia v. Heller, 554 U.S. (2008) compelled this result. The
    Attorney General’s opinion only relies on this case for the proposition that the right to
    open carry is a common law right. I respectfully submit that this case alone does not
    justify such a change of position in light of the following language in the majority
    opinion, “…, nothing in our opinion should be taken to cast doubt on longstanding
    prohibitions on the possession of firearms by felons and the mentally ill, or laws
    forbidding the carrying of weapons in sensitive places such as schools or public buildings
    …”. Although the Supreme Court did not specify public parks as a “sensitive place”, this
    regulation is longstanding and the argument can easily be made that state parks and
    forests are used for educational purposes for minors. I am advised that there is a
    regulation that prohibits field trips to locations where open carry of guns is allowed.
    gun memo.111308.doc
    Consequently, it does not appear that the recent Supreme Court case justifies the change
    in position of the Attorney General.
    The affirmative argument for the validity of the regulation is that the Department
    has the implicit authority to promulgate regulations related to safety absent a preemption
    of that authority by the General Assembly. It could be argued that the General Assembly
    did preempt the field as to concealed weapons with a comprehensive statute and this
    compelled repeal of the regulation as to concealed weapons in 2002. There is no such
    comprehensive statute currently in the Code as to open carry, only the one statute cited
    above that relates to specified cities and counties and specifically named weapons.
    The General Assembly has had numerous opportunities to enact a statute
    reversing the existing regulation because the regulation has been in place since the park
    system was first established. The fact that it has acquiesced to the long standing
    administrative interpretation by the Department is a significant factor in a court’s analysis
    of the validity of a regulation. Finally, an administrative decision of an agency charged
    by the General Assembly with statewide administration is entitled to deference “unless it
    is clearly wrong”. (Please see the attached memo for specific authority on these
    Joe Maroon points out a National Parks survey found that 17 of the 30 states who
    responded do allow open carry in state parks. Most of our neighboring states prohibited
    the practice but were being pressured to change their policy.
    I spoke with Delegate Armstrong about this issue. He would not be able to vote
    with us should legislation be introduced on this topic. He suggested that we consider
    filing for a declaratory judgment in the Richmond Circuit Court. I will explore this if you
    want to but my own view is that we will be able to hold on to a veto in the Senate – we
    lose Roscoe, Creigh, and Edwards maybe Petersen.
    The last point for consideration is a concern of Joe Maroon. He believes that
    leaving the regulation in place puts the state park employees in the difficult position of
    having to confront folks carrying a weapon. He assumes that someone will challenge the
    regulation directly to set up litigation and others may follow suit to make a point. His
    sense is that if the regulation is repealed very few people, if any, would actually carry
    guns in a park or forest. This clearly is not a legal point but a practical concern. He will,
    of course, meet his responsibility whatever the final decision is.
    gun memo
    Last edited by peter nap; 01-14-2014 at 12:52 PM.

  2. #2
    Accomplished Advocate peter nap's Avatar
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    Oct 2007
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    Philip upsets the Governor

    From: Lisk, Thomas A <>
    Sent time: Thursday, March 20, 2008 9:15:35 AM
    To: Rubin, Mark
    Subject: FYI From
    the Virginia Citizens Defense League website
    VCDL has some video from tonight's town hall meeting with Governor
    Kaine in Norfolk.
    In that video (link is below), the Governor says point blank that SB
    776, which he signed, does NOT let Commonwealth Attorneys carry
    concealed in restaurants and drink! He tries to cloud the issue by
    talking about only "sworn law enforcement" being able to carry in
    restaurants and drink. But the law says nothing about having to be
    sworn to do so.
    The Governor graduated from HARVARD. He should know how to read basic
    laws and understand them.
    So, he is either trying to mislead the public about signing SB 776,
    while vetoing SB 476, because it doesn't fit his mindless mantra about
    "guns and alcohol not mixing" OR he needs to send his diploma back to
    Harvard and never practice law again.
    Thanks to Bruce Finkelstein for asking the Governor the question and
    sending me the video.
    Bruce said that another gun owner didn't let Kaine get away with that
    answer and confronted him on the statement about Commonwealth
    Attorneys not being able to carry and drink in restaurants shortly
    after the video ends. Unfortunately, Bruce didn't capture that
    exchange on video
    The Governor said that the State Police told him that signing SB 476
    would not be a good idea! I will say this again: the State Police
    were specifically asked in the Senate Courts of Justice if they
    opposed SB 476 and the State Police said that they "take no position
    on the bill." They have NEVER taken a position on the repeal over the
    Perhaps the Governor ordered the State Police to tell him that they
    opposed the bill. Nothing would surprise me after hearing the ABC
    oppose SB 476 on "behalf of the Administration."
    If you watch the Governor's body language in the video, you will see
    that he was not happy about addressing the SB 776/SB 476 debacle.
    Well, he shouldn't be. He tried to play gun owners for suckers and
    got caught with his hand in the cookie jar.
    Kaine does not know VCDL well, but he should. We are NOT going to let
    go until Kaine admits he was wrong about Commonwealth Attorneys not
    being able to carry concealed handguns in restaurants and drink. We
    want an apology for his actions on SB 776 and SB 476 and a promise to
    support a restaurant ban repeal next year.
    In the meantime, let's flood your local newspapers with LTEs on Kaine
    not understanding the gun bills he is signing. Let's have LTEs that
    talk about how Kaine said he doesn't believe that "guns and alcohol
    mix," but then signs a bill that lets untrained, offduty,
    Commonwealth Attorneys carry concealed in restaurants and drink, while
    vetoing a bill that would have let concealed handgun permit holders
    carry concealed in restaurants as long as they DIDN'T drink.
    Let's turn the heat up and keep things nice and hot for the Governor!
    Here is the video:
    The monthly VCDL meeting in Annandale is tomorrow night
    (Thursday) at 8 PM. Location and more information is on the VCDL
    site. See you there!
    A. Lisk
    Attorney at Law
    Riverfront Plaza, East Tower
    951 East Byrd Street, Eighth Floor
    Richmond, Virginia 23219
    (804) 3434087
    (804) 7837626
    (804) 7146915

  3. #3
    Moderator / Administrator Grapeshot's Avatar
    Join Date
    May 2006
    N. Chesterfield, Va.
    It is here that I look for an end run on the RKBA as state agencies are not covered by preemption.

    We must "go public" with any effort to roll back where we may carry for personal defense - hold their feet to the fire, shine a bright light into the corners, make them follow the rules for administrative change = public input and open meetings.

    I'm practicing my best scowl - think it will be needed.

    Let's remember that parks are the "people's parks."
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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