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Thread: Restrictions On Right To Bear Arms Under Michigan Constitution Article 1, 6

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    Regular Member PDinDetroit's Avatar
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    Exclamation Restrictions On Right To Bear Arms Under Michigan Constitution Article 1, 6

    Quote Originally Posted by Michigan Attorney General Opinion #7254
    The firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1(3) dealing with the possession of a rifle or shotgun in areas frequented by deer during the five-day period immediately preceding the beginning of firearm deer season are a reasonable exercise of the State's police power, and do not violate the right to bear arms established by Const 1963, art 1, 6.
    http://www.ag.state.mi.us/opinion/da...0s/op10331.htm

    It isn't mentioned, but OC of a pistol that could be used for hunting would be disallowed on November 10-14 every year following the logic in this MI AG Opinion.
    Last edited by PDinDetroit; 10-28-2010 at 10:26 AM. Reason: Remove person so we can focus on the issue.

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    Regular Member autosurgeon's Avatar
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    I was always a bit concerned about this opinion and the fact that he didn't have any guns of his own... but yet was the great protector of gun rights.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

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    Regular Member Bailenforcer's Avatar
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    I guess I am confused. Many gun rights types claimed he was the ultimate gun protector and when I questioned that claim I was called everything that wasn't nice...

    Frankly I don't trust anyone who runs for office.


    Quote Originally Posted by PDinDetroit View Post
    http://www.ag.state.mi.us/opinion/da...0s/op10331.htm

    Now, aren't we glad this LOSER did not get the nomination for Michigan Governor!

    It isn't mentioned, but OC of a pistol that could be used for hunting would be disallowed on November 10-14 every year following the logic in this MI AG Opinion.
    Exo 22:2 "If anyone catches a thief breaking in and hits him so that he dies, he is not guilty of murder.
    Luke 22:36: "Then said he unto them, But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment, and buy one." Luk 11:21 "When a strong man, with all his weapons ready, guards his own house, all his belongings are safe.

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    Regular Member PDinDetroit's Avatar
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    Some Thoughts...

    1. The Opinion includes both of the following terms: "field" (1 time) and "area" (4 times) when discussing locations prohibited. This presents some interesting interpretations:

    The "field" reference can be defined as the following: an open land area free of woods and buildings or an area of land marked by the presence of particular objects or features. Other DNR rules list "field" or "afield" to mean a hunting location. Note that the "field" reference in the Opinion declares no presence of deer. IMO, This would be the better definition between the 2.

    The "area" reference is quite a bit broader definition: a particular extent of space or surface or one serving a special function as a geographic region. This reference in the Opinion does not specifically reference a hunting location, but always includes "frequented by deer". In Michigan, this can just about be anywhere!

    Examples:

    (A) Roadways with Deer Crossing Signs: Sorry, deer frequent the area and you cannot be in possession of a rifle or shotgun. Guess you won't be able to purchase one from the Gun Stores nearby, they might as well close down for the 5 days. Hope you didn't need it for self-protection!

    (B) Property Owners: Sorry, deer frequent the area and you cannot be in possession of a rifle or shotgun outside your home (unless you are target shooting). Hope you didn't need it for self-protection!

    (C) Going to the Indoor Range to shoot your AR-15: Sorry, deer frequent the area of the roadway nearby and there is no exception for you to take your rifle to the range. Guess the ranges should just close down for the 5 days!

    2. The sheer idea of any hunting regulation overriding a Right "To Keep and Bear Arms for Protection of himself..." utilizing a rifle or shotgun is ludicrous. How many people utilize a shotgun for self-protection in the home and elsewhere? How many people have created Michigan Pistols out of Rifles and Shotguns and utilize these for self-protection?

    3. This opinion states that the 5 days are "immediately before the season opens". This is patently false now, as there are 4 firearm deer seasons that occur well before November 15th, with 3 in September and 1 in October.

    4. The Opinion mentions multiple times about how the legislature can change the law about the November 10-14 timeframe. Could this be a "back door" effort to get this removed from the law, once it generates the possible intended outrage?

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by PDinDetroit View Post
    http://www.ag.state.mi.us/opinion/da...0s/op10331.htm

    Now, aren't we glad this LOSER did not get the nomination for Michigan Governor!

    It isn't mentioned, but OC of a pistol that could be used for hunting would be disallowed on November 10-14 every year following the logic in this MI AG Opinion.
    (3) During the five days immediately preceding November 15, transport or possess in an area frequented by deer a rifle or shotgun with buckshot, slug load, ball load, or cut shell. A person may transport a rifle or shotgun to or from a hunting camp if the rifle or shotgun is unloaded and securely encased or carried in the trunk of a vehicle. This section shall not prohibit a resident who holds a fur harvester's license from carrying a rimfire firearm .22 caliber or smaller while hunting or checking a trap line during the open season for hunting or trapping furbearing animals.

    There is no mention of pistols as you mention so they would be allowed. You can possess shotguns as I have hunted grouse during this time. It's certain shot size or slugs you can't possess. And rifles are not allowed in the field, but can be transported by law in a vehicle.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Both questions.

    You first ask whether this provision of the WCO violates an individual's right to bear arms as established by Const 1963, art 1, 6.

    Section 6 states: "Every person has a right to keep and bear arms for the defense of himself and the state." Const 1963, art 1, 6. It was preceded by Const 1908, art 2, 5, which provided: "Every person has a right to bear arms for the defense of himself and the state." Because of the similarity of the provisions and since the Convention Comment to Const 1963, art 1, 6 indicates no intent to reduce the protection of the right to bear arms granted by the 1908 Constitution, the rights guaranteed under both provisions have been viewed as identical. People v Swint, 225 Mich App 353, 359, n 2; 572 NW 2d 666 (1997).

    Const 1963, art 1, 6 is similar to the Second Amendment of the United States Constitution, which provides that "the right of the people to keep and bear Arms, shall not be infringed." In McDonald v Chicago, 561 US ___; 130 S Ct 3020, 3042; 177 L Ed 2d 894, 921 (2010), the United States Supreme Court confirmed that this provision provides a "fundamental" and "basic" right of self defense, and that it is applicable to the States by virtue of the Fourteenth Amendment of the United States Constitution:
    In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

    In reaching that conclusion, however, the Supreme Court recognized that the right was not without limits. Quoting from its decision in District of Columbia v Heller, 554 US ___; 128 S Ct 2783; 171 L Ed 2d 637 (2008), the McDonald Court stated:

    It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 US, at ___; 128 S Ct 2783; 171 L Ed 2d at 678. We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id., at ___; 128 S Ct 2783; 171 L Ed 2d at 678. We repeat those assurances here.

    Consistent with McDonald, the Michigan Supreme Court construed former Const 1908, art 2, 5, which created a right to bear arms for specific purposes, as being subject to the reasonable exercise of the State's police power. In People v Brown, 253 Mich 537, 539-541; 235 NW 245 (1931) (citations omitted), the Court observed:

    It is generally recognized that the constitutional declaration, in both Federal and State constitutions, of the right to bear arms had its origin in the fear of the American colonists of a standing army and its use to oppress the people, and in their attachment to a militia composed of all able-bodied men. Probably the necessity of self-protection in a frontier society also was a factor.
    * * *
    The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the State. This includes the right of a foreigner to possess a revolver for the legitimate defense of his person and property, subject, however, to the valid exercise of the police power of the State to regulate the carrying of firearms. [Emphasis added.]

    More recently, the Court of Appeals in People v Swint, recognizing the State's police power, upheld as constitutional under Const 1963, art 1, 6, a statute that restricted the right of felons to possess firearms.

    Applying the Brown and Swint Courts' reasoning to the WCO's prohibition on possessing certain types of firearms and ammunition in the field before the opening day of deer season, the restriction does not violate Const 1963, art 1, 6. The WCO imposes a restriction of short duration that only applies to a limited number of specifically described firearms and ammunition, which are typically used to hunt deer. A person subject to section 2.1(3) may otherwise possess a handgun for self defense.

    Consequently, the WCO would not violate the Second Amendment as interpreted by the United States Supreme Court in Heller and McDonald. As there is a legitimate police power justification for the WCO the prevention of poaching and the assurance of a level playing field for all hunters awaiting opening day and it only places reasonable limits on the right to carry firearms, it is not unconstitutional.

    It is my opinion, therefore, that Const 1963, art 1, 6 provides a constitutional right in Michigan to bear firearms for self defense, subject to reasonable regulation by the State. The firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1(3) dealing with the possession of a rifle or shotgun in areas frequented by deer during the five-day period immediately preceding the beginning of firearm deer season are a reasonable exercise of the State's police power, and do not violate the right to bear arms established by Const 1963, art 1 6.

    You next ask whether the Legislature may "rescind" section 2.1(3) of the WCO by legislation. It is a general rule of law that: "An agency has no inherent power. Any authority it may have is vested by the Legislature, in statutes, or by the Constitution." Deleeuw v Bd of State Canvassers, 263 Mich App 497, 500; 688 NW2d 847 (2004), quoting Belanger & Sons, Inc v Dep't of State, 176 Mich App 59, 62-63; 438 NW2d 885 (1989).

    The Commission's authority to adopt section 2.1(3) is not derived from the Michigan Constitution. The Commission was vested with exclusive authority to regulate the taking of game by the enactment of 1996 PA 377, which was submitted by the Legislature to the electors for vote under the referendum process provided for in Const 1963, art 4, 34. It was approved by a majority of the electors on November 5, 1996. While a citizen initiated law under art 2, 9 of the Constitution expressly requires the votes of three-fourths of the members of each house of the legislature to amend or repeal it, art 4, 34 lacks that requirement and thus laws adopted through referendum may be amended at any time by a simple majority vote of the Legislature:

    No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature. Laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof. [Const 1963, art 2, 9.]

    OAG, 1997-1998, No 6990, p 161 (August 10, 1998), addressed the Legislature's power to make, amend or repeal a law:

    Const 1963, art 4, 1, provides that: "The legislative power of the State of Michigan is vested in a senate and a house of representatives." This legislative power has been described as plenary and equivalent to the legislative powers asserted by the Parliament of the United Kingdom, except so far as the people of this state have limited it. Harsha v Detroit, 261 Mich 586, 590; 246 NW 849 (1933); Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311; 254 NW2d 544 (1977); and Sessa v State Treasurer, 117 Mich App 46, 54; 323 NW2d 586 (1982).

    The Legislature has plenary authority, except where specifically limited by the Constitution. The WCO was issued by the Commission under authority granted it by the Legislature and the voters through the referendum process. That authority can be altered or repealed entirely by the Legislature and the Governor through the process for passage of a bill.


    It is my opinion, therefore, that the Legislature may, by statute, amend or repeal the firearm and ammunition restrictions set forth in Wildlife Conservation Order section 2.1 (3).

    MIKE COX
    Attorney General
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  7. #7
    Regular Member PDinDetroit's Avatar
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    Quote Originally Posted by Venator View Post
    (3) During the five days immediately preceding November 15, transport or possess in an area frequented by deer a rifle or shotgun with buckshot, slug load, ball load, or cut shell. A person may transport a rifle or shotgun to or from a hunting camp if the rifle or shotgun is unloaded and securely encased or carried in the trunk of a vehicle. This section shall not prohibit a resident who holds a fur harvester's license from carrying a rimfire firearm .22 caliber or smaller while hunting or checking a trap line during the open season for hunting or trapping furbearing animals.

    There is no mention of pistols as you mention so they would be allowed. You can possess shotguns as I have hunted grouse during this time. It's certain shot size or slugs you can't possess. And rifles are not allowed in the field, but can be transported by law in a vehicle.
    I guess my concern is if a Conservation Officer would understand that a "Michigan Pistol" (shotgun or rifle) is OK to possess. I really doubt that a Conservation Officer would "get it", but could be wrong (experiences to date say otherwise).

    Also, the only lawful method of transport for a rifle is to/from hunting camp for the 5 days, so this is a limitation on all other lawful methods for the 5 days (Novemeber 10-14).

    It appears that I may have raised a possible "Long Gun OC" issue here, but feel the issue important enough to discuss on OCDO. I have self-reported to ensure the admins/mods do not feel differently.

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    Regular Member autosurgeon's Avatar
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    To me this is more of a long gun transport issue first and foremost.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

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    Regular Member PDinDetroit's Avatar
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    I have removed the comment about MI AG Mike Cox so we can focus on the issue and not the person.

    Sorry if that comment helped take the thread off-track.

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    I certainly agree that this topic should be discussed as well, and I hope the mods agree. I realise why the decision was made against long guns, but some things should remain a bit flexible for the sake of keeping us in line with the laws. I personally don't feel like using several gun sights, OCDO is where I focus my attention.

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