Results 1 to 19 of 19

Thread: Challenge to Government Building Carry Bans?

  1. #1
    Founder's Club Member Brass Magnet's Avatar
    Join Date
    Apr 2009
    Location
    Right Behind You!, Wisconsin, USA
    Posts
    2,818

    Challenge to Government Building Carry Bans?

    I've been thinking about this whole banning carry in government buildings thing for a while and it seems to me that it wouldn't pass constitutional muster in "non-sensitive" places. "Sensitive Places" is a distinction made in Heller V. D.C. and although it has yet to be defined, I think there are some low hanging fruit to be had here and maybe even most of the tree.

    A good example; and good place to start the challenge, would be a public bathroom in a park. When we had the picnic in Baraboo we couldn't go in the bathroom with our firearms. Pavilions, gazebos and other small buildings could be used as well. What about the DMV? I don't think that could qualify as a sensitive place. I can see the courts saying that the legislative chamber could be sensitive, but it would be pretty hard to prove most of the other buildings as sensitive.

    I think that going after the government bodies in the court is a good place to start as our rights are specifically protected from them. In Wisconsin we can challenge it on a state level or national level.

    Thoughts?
    Last edited by Brass Magnet; 10-12-2011 at 10:06 AM.
    R[ƎVO˩]UTION

    ΜΟΛΩΝ ΛΑΒΕ

    Lex malla, lex nulla

  2. #2
    Founder's Club Member protias's Avatar
    Join Date
    Dec 2008
    Location
    SE, WI
    Posts
    7,318
    One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law, yet under Act 35 they supposedly can. They cannot post the buildings without the ordinance either.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  3. #3
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by protias View Post
    One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law,.....
    I have not found a single lawyer who agrees with this premise that a municipal park ban is more stringent than a State Park ban.
    Act 35 does not prohibit an Open Carry ban in City Parks for non-licensees.
    Last edited by Interceptor_Knight; 10-12-2011 at 01:29 PM.

  4. #4
    Founder's Club Member protias's Avatar
    Join Date
    Dec 2008
    Location
    SE, WI
    Posts
    7,318
    Quote Originally Posted by Interceptor_Knight View Post
    I have not found a single lawyer who agrees with this premise that a municipal park ban is more stringent than a State Park ban.
    Act 35 does not prohibit an Open Carry ban in City Parks for non-licensees.
    Why would it not be more stringent than state law?
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  5. #5
    Regular Member
    Join Date
    Apr 2010
    Location
    Somewhere, Wisconsin, USA
    Posts
    1,029
    In a court trial half the lawyers are wrong.

  6. #6
    Regular Member BROKENSPROKET's Avatar
    Join Date
    Jan 2010
    Location
    Trempealeau County
    Posts
    2,187
    Quote Originally Posted by protias View Post
    One way to resolve this is to strengthen 66.0409. I am of the opinion they cannot make the ordinance because it is more stringent than state law, yet under Act 35 they supposedly can. They cannot post the buildings without the ordinance either.
    They do not need an ordinance to put signs on the entrances.

  7. #7
    Founder's Club Member protias's Avatar
    Join Date
    Dec 2008
    Location
    SE, WI
    Posts
    7,318
    Quote Originally Posted by BROKENSPROKET View Post
    They do not need an ordinance to put signs on the entrances.
    Please explain.
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  8. #8
    Founder's Club Member bnhcomputing's Avatar
    Join Date
    Dec 2007
    Location
    Wisconsin, USA
    Posts
    1,709

    Outside the home NOT decided

    Both the Heller and McDonald cases specifically stated in the home. SCOTUS has never ruled that right exists outside the home. So any challenge will be met with "not outside the home." I don't think a bathroom in a park is the best challenge to get them to include "outside the home."

  9. #9
    Regular Member
    Join Date
    Sep 2009
    Location
    Slidell, Louisiana
    Posts
    2,464
    Quote Originally Posted by bnhcomputing View Post
    Both the Heller and McDonald cases specifically stated in the home. SCOTUS has never ruled that right exists outside the home. So any challenge will be met with "not outside the home." I don't think a bathroom in a park is the best challenge to get them to include "outside the home."
    In Heller, "within the home" was used as an example of "traditionally lawful purposes". It was not exclusive to the home.

    " 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 253." Syllabus here... http://www.law.cornell.edu/supct/html/07-290.ZS.html

    The McDonald decision references this, but not to make the point that it is exclusive to "within the home".

  10. #10
    Regular Member paul@paul-fisher.com's Avatar
    Join Date
    May 2009
    Location
    Chandler, AZ
    Posts
    4,047
    Quote Originally Posted by protias View Post
    Please explain.
    I believe that Mr Sprocket is saying (and I agree) is that technically, non-state entities passing an ordinance that says 'we are posting' is a violation of 66.049, since the state doesn't have an equivalent law. The only 'legal' (as if they care) they can post is to NOT pass an ordinance but make it a policy or some other non-ordinance method.

    That just gave me an idea. We need to tell the people that they are violating state law if they do pass an ordinance.

  11. #11
    Founder's Club Member bnhcomputing's Avatar
    Join Date
    Dec 2007
    Location
    Wisconsin, USA
    Posts
    1,709
    Quote Originally Posted by georg jetson View Post
    In Heller, "within the home" was used as an example of "traditionally lawful purposes". It was not exclusive to the home.

    " 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 253." Syllabus here... http://www.law.cornell.edu/supct/html/07-290.ZS.html

    The McDonald decision references this, but not to make the point that it is exclusive to "within the home".
    Exactly, they used it as an example and it is my contention that the lower courts would take the most narrow interpretation of the decisions stating the court used "in the home" as an example and if they had meant out of the home, they would have used those examples as well. The lower courts won't use a LIBERAL interpretation, not regarding the 2nd anyway, so they will decide because the SCOTUS didn't specify anything outside the home, then outside the home doesn't apply.

  12. #12
    Regular Member Interceptor_Knight's Avatar
    Join Date
    May 2007
    Location
    Green Bay, Wisconsin, USA
    Posts
    2,839
    Quote Originally Posted by protias View Post
    Why would it not be more stringent than state law?
    A Park is a Park... State Park = Municipal Park..

  13. #13
    Founder's Club Member protias's Avatar
    Join Date
    Dec 2008
    Location
    SE, WI
    Posts
    7,318
    Quote Originally Posted by Interceptor_Knight View Post
    A Park is a Park... State Park = Municipal Park..
    But both are under government bodies. The state is the top, then the counties and cities are under the state. This is what I am not understanding. How can a lower entity be able to ban something the higher entity says they cannot?
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

    If you go into a store, with a gun, and rob it, you have forfeited your right to not get shot - Joe Deters, Hamilton County (Cincinnati) Prosecutor

    I ask sir, what is the militia? It is the whole people except for a few politicians. - George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

  14. #14
    Founder's Club Member Brass Magnet's Avatar
    Join Date
    Apr 2009
    Location
    Right Behind You!, Wisconsin, USA
    Posts
    2,818
    Quote Originally Posted by bnhcomputing View Post
    Exactly, they used it as an example and it is my contention that the lower courts would take the most narrow interpretation of the decisions stating the court used "in the home" as an example and if they had meant out of the home, they would have used those examples as well. The lower courts won't use a LIBERAL interpretation, not regarding the 2nd anyway, so they will decide because the SCOTUS didn't specify anything outside the home, then outside the home doesn't apply.
    I understand your contention; however, I believe the lower courts aren't bound by precedent on this point because there really is none. Heller was special because the 2A had never been clearly established in the courts as an individual right and as you know, the reason it was brought up in D.C. is that they didn't have to worry about incorporation as the BoR directly applies the the federal government. McDonald had to go against clearer, but still cloudy precedent of the slaughterhouse cases and incorporation doctrine. Further, there was a split in the lower courts among similar cases which meant that they disagreed on the precedent.

    The lower courts are not supposed to overrule clearly established precedent set by the higher courts, which is why that case in California; in which the lower court incorporated the 2A through the P or I clause, was later reheard en banc. It wasn't because they incorporated it, it was because they didn't use the "due process" clause. In Heller or McDonald there was no precedent set limiting where one can keep and bear arms besides "sensitive places" few of which were defined. This should mean that the lower courts can say we can carry them anywhere besides "sensitive places". The SCOTUS justices even said that the details would have to be flushed out through many more court cases. When the lower courts disagree, or when they decide to here an appeal, it will move up to SCOTUS.

    Just because SCOTUS didn't specify anything outside the home doesn't mean the lower courts must rule all other areas off limits until SCOTUS rules otherwise because SCOTUS also didn't limit it to inside the home. They just basically said that RKBA surely, of all places, must be protected inside the home. Your contention is like saying we need a law to tell us we can open carry instead of being able to open carry because there isn't a law. Right?

    Edited much later to add: Yes, some courts may take a more narrow interpretation but others won't; just like in the cases I discussed. However; I believe more would take a broad interpretation as there is clearly established precedent that when a right is considered; government power should be interpreted narrowly and the right broadly. (Anyone have that case, I know it's out there but can't remember it)
    Last edited by Brass Magnet; 10-13-2011 at 11:48 AM.
    R[ƎVO˩]UTION

    ΜΟΛΩΝ ΛΑΒΕ

    Lex malla, lex nulla

  15. #15
    Founder's Club Member Brass Magnet's Avatar
    Join Date
    Apr 2009
    Location
    Right Behind You!, Wisconsin, USA
    Posts
    2,818

    Case in Point.......

    Puerto Rico appellate court: Ex parte Roque Cesar Nido Lanausse

    http://volokh.com/2011/05/11/puerto-...public-places/

    Translation:

    http://volokh.com/2011/05/18/the-pue...uns-in-public/

    Basically, someone applied for a "may issue" license on non-specific grounds that he feared for his safety and it was denied. The decision basically converts Puerto Rico's "may issue" into a "shall issue". Further, the court goes into Scalia’s sensitive places as evidence that some places are not sensitive and therefore there is a right to carry in those places.
    Last edited by Brass Magnet; 10-13-2011 at 01:30 PM.
    R[ƎVO˩]UTION

    ΜΟΛΩΝ ΛΑΒΕ

    Lex malla, lex nulla

  16. #16
    Regular Member IcrewUH60's Avatar
    Join Date
    Jun 2009
    Location
    Verona, Wisconsin, USA
    Posts
    481
    Quote Originally Posted by Captain Nemo View Post
    In a court trial half the lawyers are wrong.
    added to my signature
    "In a court trial half the lawyers are wrong." - Captain Nemo

    "[There is] a duty in refusing to cooperate in any undertaking that violates the Constitutional rights of the individual. This holds in particular for all inquisitions that are concerned with the private life and the political affiliations of the citizens." - Albert Einstein

    gunowners.org ~ lp.org ~ downsizedc.org ~ oathkeepers.org ~ campaignforliberty.com/usa/WI/ ~ goooh.com

  17. #17
    Founder's Club Member bnhcomputing's Avatar
    Join Date
    Dec 2007
    Location
    Wisconsin, USA
    Posts
    1,709
    Although I agree that the law should be liberally applied:

    Here is a Maryland Case
    http://sblog.s3.amazonaws.com/wp-con...-11-105734.pdf

    There is also a Connecticut Case, I misplaced the link, and let's not forget the Gonzalez case against West Milwaukee. In every instance the court reiterates "not outside the home."

    So although I would LOVE to see the lower courts expand the right, I just don't see Carter, Clinton, and Obama appointees doing that.

    We'll just have to let it play out in the courts and hope for the best.

  18. #18
    Founder's Club Member Brass Magnet's Avatar
    Join Date
    Apr 2009
    Location
    Right Behind You!, Wisconsin, USA
    Posts
    2,818
    Quote Originally Posted by bnhcomputing View Post
    Although I agree that the law should be liberally applied:

    Here is a Maryland Case
    http://sblog.s3.amazonaws.com/wp-con...-11-105734.pdf

    There is also a Connecticut Case, I misplaced the link, and let's not forget the Gonzalez case against West Milwaukee. In every instance the court reiterates "not outside the home."

    So although I would LOVE to see the lower courts expand the right, I just don't see Carter, Clinton, and Obama appointees doing that.

    We'll just have to let it play out in the courts and hope for the best.
    The Maryland appeals court decision was levied pre-McDonald. By reading the opinion, it seems that 2A not being incorporated was the major reason for the decision; secondarily that Heller didn't specifically say one had the right to bear arms outside the home.

    The Gonzalez case was pre-McDonald as well and was a federal civil rights lawsuit. The 2A didn't really have anything to do with the decision there IIRC, it was Wisconsin's overly vague Disorderly Conduct statute and whether or not the officers had Qualified Immunity. Of course that "justice" had to insert a bunch of bench legislation into it as well.

    I'm not saying you are wrong that some courts will choose not to expand the right but these aren't good examples and some courts will expand the right, just like in the Puerto Rico case I cited. All you need is a split among the circuits and I don't think that would be hard to get.

    Now, choosing the right circuit might be something that has to be looked into carefully.
    R[ƎVO˩]UTION

    ΜΟΛΩΝ ΛΑΒΕ

    Lex malla, lex nulla

  19. #19
    Regular Member
    Join Date
    Jul 2011
    Location
    northern wis
    Posts
    3,194
    AZ went through all this they banned carry in all goverment building so wayside rest rooms parks ect. They havd to pass several laws to improve the situation.

    This is a work in progress we have to keep pushing for full consitional carry.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •