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
8046920136
MEMORANDUM
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
statements.)
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
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
8046920136
MEMORANDUM
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
statements.)
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
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