Are guns REALLY illegal on the DC Mall?

[1245A Defender]

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Or they could do the right thing,,,, NOTHING!!
It could be affirmed, that fed parks are constitutionally protected second amendment areas of the United States!!!
drop the charge against the gun carrier, and everybody goes home happy!

 

[deanf]

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Again, I will ask: If the laws (fish and game for example)of a political subdivision (a state, for example) apply on federal land (national forests, for example) and are enforced by officers of that political subdivision (state game officers, for example), then why would not DCs municipal laws apply on federal land within the District, if enforced by DC officers?

No one has answered this, and it's an important question, and calls the OPs theory into serious question.

The context of the new Park Carry Law is not relevant to this question.

 

[eye95]

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deanf wrote:

Again, I will ask: If the laws (fish and game for example)of a political subdivision (a state, for example) apply on federal land (national forests, for example) and are enforced by officers of that political subdivision (state game officers, for example), then why would not DCs municipal laws apply on federal land within the District, if enforced by DC officers?

No one has answered this, and it's an important question, and calls the OPs theory into serious question.

The context of the new Park Carry Law is not relevant to this question.

One way for the feds to allow jurisdiction to be handled by State and local governments is to explicitly, in federal law, say so--as they have done with gun law.

I know you are trying to resolve the question for rape and robbery, thinking that, because those laws are enforced by State and local jurisdictions, so would gun laws. But, even in that line of thinking, the park carry law is relevant. That law being newer than whatever law gives DC police the jurisdiction for some laws in the parks, supersedes earlier law. Even if one could argue that some earlier law gave DC jurisdiction over the parks regarding guns (it didn't, the feds made the rules), the new law revised that old law. It now explicitly says how the law regarding guns in national parks is determined. State (as state is defined in the law) law applies.

However, in DC, there is no state law, since DC is not a State, a territory, or a possession. Therefore, there is no gun law. Absent a law prohibiting something, that something is legal. Therefore, open carry and concealed carry would be legal.

IANAL, but were I and were I defending someone charged with violating DC gun law on the Mall, that's the tack I would take.

 

[deanf]

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It now explicitly says how the law regarding guns in national parks is determined. State (as state is defined in the law) law applies.

Yes the new Park carry law is intended to alter how Parks operate within states. That much is clear. So it follows that the new Park carry law does not apply in the District. Since the new law does not apply in the District, whatever law being used all these years to ban guns in parks in the District still applies.

The OPs theory hinges on the belief that DC municipal law does not apply to parks within DC, but only after passage of the new parks carry law. This is a legal absurdity. A law passed to regulate conduct in one political subdivision cannot alter or void law in another subdivision to which said law does not apply.

 

[eye95]

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deanf wrote:

It now explicitly says how the law regarding guns in national parks is determined. State (as state is defined in the law) law applies.

Yes the new Park carry law is intended to alter how Parks operate within states. That much is clear. So it follows that the new Park carry law does not apply in the District. Since the new law does not apply in the District, whatever law being used all these years to ban guns in parks in the District still applies.

The OPs theory hinges on the belief that DC municipal law does not apply to parks within DC, but only after passage of the new parks carry law. This is a legal absurdity. A law passed to regulate conduct in one political subdivision cannot alter or void law in another subdivision to which said law does not apply.

Absent the law stating that it only applies to parks within State boundaries, it applies to all parks. Laws say what they say, not what they should say. Laws mean what they mean, not what they should mean.

The only reason that any DC law applies in the parks is because the feds allow it to. So, federal law is the final word on whether DC law applies in parks. Since black-letter law says that state gun law (as state is defined in that black-letter law) applies in national parks, then State law applies on the Mall. However, there is not State boundaries within which the Mall lies, so there is no state law, and there is no gun law on the Mall.

What you are arguing is surely what the authors of the law intended. However, that is not what the black-letter law they wrote actually says. Remember that, in a court of law, the burden to prove that a law was broken rests with the prosecution. If black-letter law does not state that an act is a crime, you can't gain a conviction because the law should have said that the act was illegal.

 

[1245A Defender]

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the new law applies to fed parks, regardless of the location of the park!
it preempts unconstitutional 2nd amendment restrictions in the fed parks!
it is a step in providing uniform firearm law, in accordance with the constitution!

 

[deanf]

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Remember that, in a court of law, the burden to prove that a law was broken rests with the prosecution. If black-letter law does not state that an act is a crime, you can't gain a conviction because the law should have said that the act was illegal.

But I wouldn't be attempting to prove a violation of the new federal parks law, so it's wording is irrelevant to discussion of prosecution for possessing a gun in a park in the District.

I would be attempting to prove a violation of DC municipal law, which is still in full affect.

The new law says a gun may be possessed "in accordance with the laws of the state in which the national park area, or that portion thereof, is located,".

So it's clear that the new law does not apply to all National Parks, but only parks located within states, thus DCs municipal laws remain unchanged.

 

[1245A Defender]

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well deanf,, you are a clever and lawyerly thinker. I will remain a layman.
of the two trains of argument, 1 will be right, or wrong, maybe both will be wrong, or right.
i think dreamer makes too much sense to dismiss out of hand.
the law seems to address dreamers argument more specifficly than your convoulted reasoning!

 

[eye95]

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deanf wrote:

Remember that, in a court of law, the burden to prove that a law was broken rests with the prosecution. If black-letter law does not state that an act is a crime, you can't gain a conviction because the law should have said that the act was illegal.

But I wouldn't be attempting to prove a violation of the new federal parks law, so it's wording is irrelevant to discussion of prosecution for possessing a gun in a park in the District.

I would be attempting to prove a violation of DC municipal law, which is still in full affect.

The new law says a gun may be possessed "in accordance with the laws of the state in which the national park area, or that portion thereof, is located,".

So it's clear that the new law does not apply to all National Parks, but only parks located within states, thus DCs municipal laws remain unchanged.

You would have to prove jurisdiction if the question came up. I'd say that a federal law that explicitly assigns jurisdiction, NOT giving it to DC, would be a slam-dunk.

BTW, prior to the law, federal law governed guns in parks. This new law did away with that law, leaving no law in parks not within the boundaries of a state as defined in the law. No law regarding an action, means that action is legal.

 

[Mike]

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Dreamer wrote:

Let me explain. The new law states that carry in a Federal Park is legal as long as the person carrying is legally permitted to carry in that STATE.

The Coburn Amendment merely limits reach of NPS Reg. 2.4.

All other state, local, district laws remain in effect.

 

[Mike]

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eye95 wrote:

BTW, prior to the law, federal law governed guns in parks.

Yes, and state law, and district law, and local law. All apply to federal parks and can be enforced in federal court by federal authorities, or state/local/district courts by state/local/district courts.

 

[eye95]

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Mike wrote:

Dreamer wrote:

Let me explain. The new law states that carry in a Federal Park is legal as long as the person carrying is legally permitted to carry in that STATE.

The Coburn Amendment merely limits reach of NPS Reg. 2.4.

All other state, local, district laws remain in effect.

Mike, I have no doubt that you are correct. You are certainly more educated on the law than I am. However, it would be instructive if you could show us how the new law has such narrow reach on pre-existing law and regulation.

 

[Mike]

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eye95 wrote:

Mike wrote:

Dreamer wrote:

Let me explain. The new law states that carry in a Federal Park is legal as long as the person carrying is legally permitted to carry in that STATE.

The Coburn Amendment merely limits reach of NPS Reg. 2.4.

All other state, local, district laws remain in effect.

Mike, I have no doubt that you are correct. You are certainly more educated on the law than I am. However, it would be instructive if you could show us how the new law has such narrow reach on pre-existing law and regulation.

Take a look at the Coburn Amendment - it DOES NOT DISPLACE state, District, or other laws ban gun carry - it merely preempts the Secretary of the Interior from enforcing 2 DOIregulations!

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_public_laws&docid=fubl024.111:

SNIP

(b) Effective <<NOTE: 15 USC 1638 note.>> Date.--The amendments made
by subsection (a) shall take effect on March 12, 2009.
SEC. 512. <<NOTE: 16 USC 1a-7b.>> PROTECTING AMERICANS FROM
VIOLENT CRIME.

(a) Congressional Findings.--Congress finds the following:
(1) The Second Amendment to the Constitution provides that
``the right of the people to keep and bear Arms, shall not be
infringed''.
(2) Section 2.4(a)(1) of title 36, Code of Federal
Regulations, provides that ``except as otherwise provided in
this section and parts 7 (special regulations) and 13 (Alaska
regulations), the following are prohibited: (i) Possessing a
weapon, trap or net (ii) Carrying a weapon, trap or net (iii)
Using a weapon, trap or net''.

[[Page 123 STAT. 1765]]

(3) Section 27.42 of title 50, Code of Federal Regulations,
provides that, except in special circumstances, citizens of the
United States may not ``possess, use, or transport firearms on
national wildlife refuges'' of the United States Fish and
Wildlife Service.
(4) The regulations described in paragraphs (2) and (3)
prevent individuals complying with Federal and State laws from
exercising the second amendment rights of the individuals while
at units of--
(A) the National Park System; and
(B) the National Wildlife Refuge System.
(5) The existence of different laws relating to the
transportation and possession of firearms at different units of
the National Park System and the National Wildlife Refuge System
entrapped law-abiding gun owners while at units of the National
Park System and the National Wildlife Refuge System.
(6) Although the Bush administration issued new regulations
relating to the Second Amendment rights of law-abiding citizens
in units of the National Park System and National Wildlife
Refuge System that went into effect on January 9, 2009--
(A) on March 19, 2009, the United States District
Court for the District of Columbia granted a preliminary
injunction with respect to the implementation and
enforcement of the new regulations; and
(B) the new regulations--
(i) are under review by the administration;
and
(ii) may be altered.
(7) Congress needs to weigh in on the new regulations to
ensure that unelected bureaucrats and judges cannot again
override the Second Amendment rights of law-abiding citizens on
83,600,000 acres of National Park System land and 90,790,000
acres of land under the jurisdiction of the United States Fish
and Wildlife Service.
(8) The Federal laws should make it clear that the second
amendment rights of an individual at a unit of the National Park
System or the National Wildlife Refuge System should not be
infringed.

(b) Protecting the Right of Individuals To Bear arms in Units of the
National Park System and the National Wildlife Refuge System.--The
Secretary of the Interior shall not promulgate or enforce any regulation
that prohibits an individual from possessing a firearm including an
assembled or functional firearm in any unit of the National Park System
or the National Wildlife Refuge System if--
(1) the individual is not otherwise prohibited by law from
possessing the firearm; and
(2) the possession of the firearm is in compliance with the
law of the State in which the unit of the National Park System
or the National Wildlife Refuge System is located.
--

THREAD CLOSED.