Congress acts to restrict military from infringing off-base gun rights of soldiers

skidmark · Mar 9, 2011

This is aimed at base commanders who have ordered that soldiers report and register privately-owned firearms kept at their residences off-based.

The Public Law version is not yet online, but here's a link http://www.gpo.gov/fdsys/pkg/CPRT-111HPRT63160/pdf/CPRT-111HPRT63160.pdf (562 pages to wade through) to the 2011 National Defense Authorization Act as introduced, which became Pub. L. 111-383. Section 1062 (on PDF pages 253-54) provides:

"SEC. 1062. PROHIBITION ON INFRINGING ON THE INDIVIDUAL RIGHT TO LAWFULLY ACQUIRE, POSSESS, OWN, CARRY, AND OTHERWISE USE PRIVATELY OWNED FIREARMS, AMMUNITION, AND OTHER WEAPONS.

(a) In General- Except as provided in subsection (c), the Secretary of Defense shall not prohibit, issue any requirement relating to, or collect or record any information relating to the otherwise lawful acquisition, possession, ownership, carrying, or other use of a privately owned firearm, privately owned ammunition, or another privately owned weapon by a member of the Armed Forces or civilian employee of the Department of Defense on property that is not--
(1) a military installation; or
(2) any other property that is owned or operated by the Department of Defense.
(b) Existing Regulations and Records-

(1) REGULATIONS- Any regulation promulgated before the date of enactment of this Act shall have no force or effect to the extent that it requires conduct prohibited by this section.

(2) RECORDS- Not later than 90 days after the date of enactment of this Act, the Secretary of Defense shall destroy any record containing information described in subsection (a) that was collected before the date of enactment of this Act.

(c) Rule of Construction- Subsection (a) shall not be construed to limit the authority of the Secretary of Defense to--
(1) create or maintain records relating to, or regulate the possession, carrying, or other use of a firearm, ammunition, or other weapon by a member of the Armed Forces or civilian employee of the Department of Defense while--
(A) engaged in official duties on behalf of the Department of Defense; or
(B) wearing the uniform of an Armed Force; or
(2) create or maintain records relating to an investigation, prosecution, or adjudication of an alleged violation of law (including regulations not prohibited under subsection (a)), including matters related to whether a member of the Armed Forces constitutes a threat to the member or others.

(d) Review- Not later than 180 days after the date of enactment of this Act, the Secretary of Defense shall--
(1) conduct a comprehensive review of the privately owned weapons policy of the Department of Defense, including legal and policy issues regarding the regulation of privately owned firearms off of a military installation, as recommended by the Department of Defense Independent Review Related to Fort Hood; and
(2) submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report regarding the findings of and recommendations relating to the review conducted under paragraph (1), including any recommendations for adjustments to the requirements under this section.

(e) Military Installation Defined- In this section, the term `military installation' has the meaning given that term under section 2687(e)(1) of title 10, United States Code. "

Wonder what happened to get this reaction from Congress. Any input from our seerving members?

I can imagine the howls of anguish/anger/despair coming from certain commands (Alaska, Ft. Hood, Ft. Myers/Washington Military District come to mind).

stay safe.

rotorhead · Mar 9, 2011

Good. It's about time something like this was established.

Skid, I forget the exact post in question, but one base Commander decided to order everyone that was assigned to "his" post to register their Personally Owned Weapons with the post Provost Marshall and their unit commanders. If I remember right the incident happened last year or late in the year prior. It could have been at Ft Hood after the shootings there. I'll look it up and post it here.

Edit:

Ahh here it is. It was at Ft Campbell, KY in 2009. It was a Company Commander, not the Post Commander.

http://www.carolinajournal.com/exclusives/display_exclusive.html?id=5465

One of the Soldiers didn't comply and was going to be in trouble for disobeying the order. Eventually it made the news and it exploded from there.

since9 · Mar 9, 2011

skidmark said:
This is aimed at base commanders who have ordered that soldiers report and register privately-owned firearms kept at their residences off-based.

That is patently illegal, and a violation of the UCMJ (Uniform Code of Military Justice). Nine times out of ten,commanders check with JAG before making policy, and usually they ask JAG to give them an honest opinion. On occasion, however, the over-controlling commander instead has an idea in his head and demands JAG figure out of a way to "make it happen." That's usually when the JAG salutes smartly while cursing the commander under their breath and bending over backwards trying to keep them both out of jail.

I am heartened that Congress has gotten wind of these un-Constitutional antics and are taking steps to ensure commanders aren't violating the rights of their troops.

Wonder what happened to get this reaction from Congress. Any input from our seerving members?

Haven't a clue.

I do know that I kept my own Congressman appraised any time a commander does anything contrary to the laws of our land. I did this in response to a couple of bad commanders, but only reported the actions of one (along with his subordinate commanders more worried about their careers than doing the right thing). He was either a particularly insidious commander who was a megalomaniac convinced he was never wrong (he was actually wrong), or one who wanted to "show the ranks what happens to those within the ranks uphold the UCMJ by reporting grossly errant actions taken by commanders first up through the chain, then sideways to the IG when the first move was not only met with rebuff, but with attempted punishment.

Either way, despite his past achievements he screwed the pooch on this one. He'd probably done wrong on several previous occasions, but never encountered someone as tenacious as I am.

"Payback is sweet," but it wasn't about payback. It was simply Karma. What goes around, comes around. Cast your bread upon the waters, be it good or bad, and it will come back to you. I didn't swear an oath to support and defend our Constitution against all enemies, foreign and domestic, just so that a few individuals with much power and little common sense could trample the rights and freedoms for which I and my compatriots fought for decades.

Go get 'em, Congress!

Cavalryman · Mar 13, 2011

This is long overdue.

Mechman · Mar 13, 2011

A serving member in the National Guard....

I am happy to say that I have personally written to my reps in Congress in both the House and Senate stating my concerns about any restrictions that prevent me from exercising my right to defend myself while coming on and off Federal military installations. Maybe my letters had some effect....

I certainly see this provision as a step in the right direction even though it is only specifically dealing with the issue of reporting and recording the soldier's possession of a weapon at his private residence OFF BASE.

The military uses a term "FORCE PROTECTION". I am all for allowing the force to protect itself....period.

since9 · Mar 15, 2011

Mechman said:
I certainly see this provision as a step in the right direction even though it is only specifically dealing with the issue of reporting and recording the soldier's possession of a weapon at his private residence OFF BASE.

"Only?" How about anywhere and everywhere the state allows? On base, it being a federal installation, the commanders still decide, but I do wish Congress would enact a law akin to the one which legalized OC in National Parks, commensurate with state laws. Commanders need "wide latitude" over their base jurisdictions, but lacking any clear and present danger, and with perimiter security being what it is today, there is absolutely ZERO reason to prohibit Americans from protecting themselves while on base property, particularly when many of them do not have a choice as to whether they reside on or off base.

The military uses a term "FORCE PROTECTION". I am all for allowing the force to protect itself....period.

Until the military allows the well-trained members of the military to protect and defend their fellow servicemembers, themselves, and their families living with them on, or visiting base facilities, "Force Protection" is a joke.

Felix · Mar 15, 2011

Was that a widely-implemented requirement (Provost Marshall registration of private weapons retained in off-post residences) or just the actions of a few over-exerburant commanders? First I've ever heard of such a thing. Maybe it's just an Army action. Also wondering if it was an all-ranks requirement or perhaps limited to junior enlisted.

You know, the more I think about this, I'm curious if maybe it was implemented to make it easier to investigate domestic violence cases.

Also, since9, what does the UCMJ say that makes this registration requirement a violation? I'm surprised it took congressional action since you are apparently saying the UCMJ addresses it.

Aknazer · Mar 15, 2011

I don't know of anything that specifically talks about weapon registration, so then the question would be what is the commander trying to say to justify the order. Registering on base weapons can easily be argued as base security and the commander having a need to know about such things on his base.

For off-base my guess would be you'd be charged with Article 92 and that would be failure to obey a lawful order. But when you delve deeper into the Article it outlines what exactly is a lawful order. A "lawful order" as defined per Article 92 is: "(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a)." One could argue that being forced to register your weapons is infringing on your 2A rights, and by putting in a law specifically against this it makes it clear that it's against the laws of the United States. I'm not a lawyer, but they might even be able to argue that it is beyond his authority to issue such a thing to weapons off-base.

Additionally they can't use the same things that they can to limit speech and activities. Those can be limited under various articles but the most likely is 134 which talks about order, discipline, discredit to the military, and other things; and not registering your guns doesn't affect any of those things.

Sonora Rebel · Mar 15, 2011

Aknazer said:
I don't know of anything that specifically talks about weapon registration, so then the question would be what is the commander trying to say to justify the order. Registering on base weapons can easily be argued as base security and the commander having a need to know about such things on his base.

For off-base my guess would be you'd be charged with Article 92 and that would be failure to obey a lawful order. But when you delve deeper into the Article it outlines what exactly is a lawful order. A "lawful order" is defined per Article 92 is: "(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a)." One could argue that being forced to register your weapons is infringing on your 2A rights, and by putting in a law specifically against this it makes it clear that it's against the laws of the United States. I'm not a lawyer, but they might even be able to argue that it is beyond his authority to issue such a thing to weapons off-base.

Additionally they can't use the same things that they can to limit speech and activities. Those can be limited under various articles but the most likely is 134 which talks about order, discipline, discredit to the military, and other things; and not registering your guns doesn't affect any of those things.

This was the case at various times and units while I was Navy. We (who had firearms) ignored this intrusive kind'a crap when so 'ordered' by some local reg or other. 'Like wearin' Levis (jeans)... that was 'banned' in FL for liberty 'civvies' by this one C.O.. Yeah... good luck with that.

golddigger14s · Mar 15, 2011

Fort Lewis

I can't speak for other millitary posts, but here at Ft. Lewis, WA the post commander put out a new policy last year. It says for those of us that live off post do not have to register their weapons on post any more. People that live on post still need to, that has been in the regs for years. Matter of fact I need to go down to the registration people and let them know that all the weapons I registered prior to this were lost in a tragic boating accident

.

Cavalryman · Mar 18, 2011

golddigger14s said:
I can't speak for other millitary posts, but here at Ft. Lewis, WA the post commander put out a new policy last year. It says for those of us that live off post do not have to register their weapons on post any more. People that live on post still need to, that has been in the regs for years. Matter of fact I need to go down to the registration people and let them know that all the weapons I registered prior to this were lost in a tragic boating accident .

The way I read the law is that firearms stored off-post are not subject to restriction regardless of where the member resides. That is, a service member who lives on post could keep firearms at some off-post location without penalty.

x3atthis · Mar 18, 2011

rotorhead said:
Good. It's about time something like this was established.

Skid, I forget the exact post in question, but one base Commander decided to order everyone that was assigned to "his" post to register their Personally Owned Weapons with the post Provost Marshall and their unit commanders. If I remember right the incident happened last year or late in the year prior. It could have been at Ft Hood after the shootings there. I'll look it up and post it here.

Edit:

Ahh here it is. It was at Ft Campbell, KY in 2009. It was a Company Commander, not the Post Commander.

http://www.carolinajournal.com/exclusives/display_exclusive.html?id=5465

One of the Soldiers didn't comply and was going to be in trouble for disobeying the order. Eventually it made the news and it exploded from there.

Fort Bragg has a similar policy. If you're going to stay on post with a firearm for more than 5 days you're required to register your firearm with the Provost Marshal, per FB PMO Regulation 190-12. And while you can transport an unloaded gun out of reach onto post without registering it, that's only if you're going directly to the a range/your housing/unit storage. Live off post, OC all the time, try to stop by the commissary with your handgun in the trunk? Not allowed. Besides, they can seize your firearm if you leave it in your vehicle unattended. Anyone I know who lives in the barracks (which mandates storage in your unit's arms room), stores their weapons off post at a friend's house. A unit arms room may or may not be accessible on a Sunday afternoon when you feel the urge to go to the range. Commanders also possess the authority to order someone who lives off post to move all of their weapons to on post unit storage.

http://www.bragg.army.mil/Directorates/Provost-Marshal/FB-Regulations-(PMO).aspx

Did a little googling, apparently the common SOP for unit arms room storage is that in order to withdraw your weapon, for any reason, you must have written consent from your commander in advance.

stuckinchico · Apr 6, 2011

x3atthis said:
Did a little googling, apparently the common SOP for unit arms room storage is that in order to withdraw your weapon, for any reason, you must have written consent from your commander in advance.

When I was stationed at Camp Lejuene, I ignored any of that crap and kept my pistol in a lock box made under my seat. I had no trouble at all

eye95 · Apr 6, 2011

OCDO Basic Rules said:
(15) WE ADVOCATE FOR THE 'LAW-ABIDING' ONLY: Posts advocating illegal acts of any kind are NOT welcome here. Even if you feel that a law is unconstitutional we do not break it, we repeal it or defeat it in the courts.

Just in case someone is not aware of the rule.

since9 · Apr 7, 2011

Felix said:
Was that a widely-implemented requirement (Provost Marshall registration of private weapons retained in off-post residences) or just the actions of a few over-exerburant commanders?

I suspect the latter. I've only seen three base regulations with respect to the carry of privately-owned firearms by those assigned to the base. All three were USAF, and were nearly identical in that if one lived on base, transport on and off base was allowed, provided the firearm was unloaded, in plain view, and all ammunition was locked in the trunk. I believe one said "or in a locked container in the vehicle," which appears to me to be an intelligent allowance for trucks and other vehicles which have no separate, lockable trunks.

Also wondering if it was an all-ranks requirement or perhaps limited to junior enlisted.

In none of the documents I read was there any mention of rank stratification. In fact, I know first-hand of cases where junior enlisted Security Forces have ticketed high-ranking officers, including a couple of O-6s and one general, and second-hand of cases where high-ranking officers received similar punishments as junior enlisted, at least for basic on-base traffic offenses like speeding and running a red light. More serious offenses like a DUI are handled under other areas of the UCMJ, and no, officers at any level are not exempt. Depending on the severity, typical punishments include forfeiture of large sums of pay, reductions in rank, and for repeat offenses, termination of service.

Also, since9, what does the UCMJ say that makes this registration requirement a violation?

Commanders have "wide latitude" over how they command their troops. That doesn't mean they can mandate the civic activities of their tropps while they're off-base and off-duty. For example, while they can say a troop has to live within 30 minutes of base, they cannot say that a troop must rent vs buy.

I'm surprised it took congressional action since you are apparently saying the UCMJ addresses it.

Do politicians and law enforcement always follow the rules? Congressional oversight committees/panels exist for a reason. In-house investigative bodies exist for a reason. In the Military, the Inspector General's office exists for a reason. In most law-enforcement agencies, it's called Internal Affairs. I know of one case in particular where a Congressional inquiry helped hold a heinous actions on the part of an entire command at bey long enough to accomplish what was right and true. I also know most Congressmen conduct dozens of such inquiries a year.

If officials holding high office always followed the rules, none of these agencies would be necessary.

The old addage is all too often true: "Power corrupts. Absolute power corrupts absolutely." Fortunately, there are enough people at all levels who take the responsibilities of their office seriously enough to refuse to allow themselves to be corrupted, and instead hold to higher ideals.

Congress acts to restrict military from infringing off-base gun rights of soldiers

skidmark

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rotorhead

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since9

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Mechman

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Felix

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